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In re Adoption of M.J.W.

Court of Appeals of Washington, Division 2

April 16, 2019

In the Matter of the Adoption of: M.J.W., a minor child.

          Lee, A.C.J.

         Greg and Linda Minium appeal the trial court's denial of their petition to adopt their minor grandson, M.J.W. The Miniums argue that the trial court erred in allowing M.J.W.'s paternal grandmother, Patti Shmilenko, to intervene in the adoption proceedings because Patti[1] had not petitioned to adopt M.J.W. herself. The Miniums also argue that the trial court abused its discretion in denying their adoption petition because its ruling was based on speculation and an erroneous finding that the adoption petition might impact an agreed residential schedule order between the Miniums and Patti.

         We agree that the trial court erred in allowing Patti to intervene in the adoption proceeding as a matter of right, but we hold that the trial court did not abuse its discretion in allowing Patti to intervene permissively. We also hold that the trial court did not abuse its discretion in finding that adoption by the Miniums was not in M.J.W.'s best interests. Accordingly, we affirm.

         FACTS

         A. Procedural Background

         M.J.W.'s parents were killed by a drunk driver in 2008, just days before his first birthday. At the time of the accident, M.J.W. was under the care of his maternal grandparents, Linda and Greg Minium.[2]

         A month following the accident, the Miniums petitioned for custody of M.J.W. The paternal grandparents, Patti and John Shmilenko, filed a response requesting regular visitation with M.J.W. Tension ensued between the Miniums and Shmilenkos, but they agreed to a residential schedule order in 2010.

         The trial court entered the agreed residential schedule order, which provided that M.J.W. would reside with the Miniums, as nonparental custodians, but would spend every Tuesday and Thursday from 1:00 pm to 7:00 pm, and alternating weekends, with Patti until the age of five. The 2010 residential schedule order also provided that M.J.W. would split holidays, vacations, and special occasions between the Miniums and Patti.

         After agreeing to the 2010 residential schedule order, the Miniums attempted to limit the Shmilenkos' access to M.J.W., and Greg tried to "have the 2010 order thrown out of court." 1 Verbatim Report of Proceedings (VRP) (June 6, 2017) at 135. The Miniums also refused to discuss modification of the agreed order. And they refused mediation as required by the order. Patti filed suit to modify the agreed order, and the Minimums responded by filing a motion to vacate the order. The trial court denied this motion.

         In September 2014, the Miniums filed a petition to adopt M.J.W. Patti filed a motion to intervene in the adoption proceedings on October 3. Patti argued that she could intervene as a matter of right under CR 24(a) in order to protect her "legally cognizable rights with regard to the parenting of [M.J.W.]." Clerk's Papers (CP) at 194. She also argued that she could permissively intervene under CR 24(b) because her rights under the 2010 residential schedule shared a common question of law or fact to the adoption petition, which was determining the best interests of M.J.W. The trial court granted Patti's motion to intervene both as a matter of right and by permissive intervention.

         While the Miniums' petition to adopt M.J.W. was pending, the Miniums and the Shmilenkos entered into a modified residential schedule order on October 31, 2014. This order provided that M.J.W. would visit with Patti on Tuesdays during the school year between 4:00 pm and 6:30 pm, and would spend one to two weekends per month with Patti. Again, the residential schedule order provided that M.J.W. would split his winter vacation, spring break, and summer holiday between the Miniums and Patti. And M.J.W. would spend alternating holidays and special occasions with the Miniums and Patti. There were no missed visits under the 2010 and 2014 residential schedule orders.

         B. Adoption trial

         A trial was held on the merits of the Miniums' adoption petition in June 2017. Several family members and expert witnesses testified at trial.

         Richard Dillman, a licensed mental health counselor in Washington, testified that he began treating M.J.W. for anxiety in January 2015. As part of his treatment, Dillman initially met with M.J.W. and Linda together. During these visits, Linda mentioned adoption to Dillman, discussed her litigation with Patti, and once accused Patti of drug use. At Linda's request, Dillman wrote a letter stating that the Shmilenkos had forced overnight visits on M.J.W., which had caused M.J.W.'s anxiety. As a result of these discussions, Dillman developed a very negative view of the Shmilenkos. Dillman later met the Shmilenkos and determined that he had developed an erroneous view of them based on his discussions with Linda.

         Dillman also testified that he had offered to act as a mediator between the Miniums and the Shmilenkos because he believed that the antipathy between the parties was negatively impacting M.J.W. The Shmilenkos were willing to go to mediation, but the Miniums were not.

         During trial, Patti asked Dillman whether he believed the adoption might impact the visitation schedule in effect between Patti and the Miniums. The trial court overruled the Miniums' objection that such testimony would be speculative, and Dillman testified that absent a court order, "the potential for [visitation] to change would definitely be there." 6 VRP (June 14, 2017) at 763. He also testified that based on the "antipathy" between the Miniums and the Shmilenkos, M.J.W. would visit with the Shmilenkos far less frequently if the Miniums' adoption petition was granted.

         Jami Pannell, the guardian ad litem appointed by the trial court to represent M.J.W.'s interests in this case, also testified. The trial court had ordered Pannell to investigate all matters related to the parenting plan, including financial stability, emotional stability, home life, and whether M.J.W. had social and "familiar" support under the current plan. 5 VRP (June 13, 2017) at 687.

         Pannell testified that during her investigation, Linda stated that Patti was manipulative, controlling, and unable to provide proper oversight for M.J.W. Pannell also noted that while exchanging M.J.W. between their homes, the Miniums would refuse to smile at, look at, or speak to the Shmilenkos. The tension during these exchanges caused M.J.W. to develop stomachaches.

         Based on her interviews with the Miniums and the Shmilenkos, Pannell found that the Shmilenkos had acted as "peacekeepers" in this case. 5 VRP (June 13, 2017) at 687. The Shmilenkos attempted to hire a mediator and had received counseling on how to keep peace with the Miniums. And M.J.W. had a very strong bond with both Patti and John. Pannell determined that regular visitation with the Shmilenkos would be in M.J.W.'s best interests. Pannell reported that the Shmilenkos played a vital role in M.J.W.'s emotional health and wellbeing, and opined that they should not be excluded from his upbringing.

         Pannell was concerned that the Miniums might try to limit Patti's access to M.J.W. Patti specifically asked Pannell whether she had concerns about the adoption, and Pannell testified that she was concerned that Patti might be left out of M.J.W.'s life if the Miniums' adoption petition was granted. The Miniums objected to this testimony as speculation, but the trial court overruled their objection.

         Linda testified that Patti was a harmful and negative influence on M.J.W., and claimed that Patti knew no bounds, was domineering, condescending, and disrespectful. Greg testified that Patti was an" 'evil woman, '" and acknowledged that he would follow the 2014 residential schedule" 'with a grudge.'" CP at 481-82. Greg also admitted that he previously tried to "have the 2010 [residential scheduling] order thrown out of court." 1 VRP (June 6, 2017) at 135. Other witnesses that testified at trial all agreed that the 2014 residential schedule was in M.J.W.'s best interest.[3]

         The trial court found that M.J.W. needed both the Miniums and the Shmilenkos in his life. M.J.W.'s current living situation "ha[d] continuity, consistency, and stability," and M.J.W. was "thriving under the 2014 Residential Schedule." CP at 481. The court also found that the titles of" 'adopted'" and" 'legal parent'" would have no positive emotional or developmental effect on M.J.W. CP at 481. The court further found that the loss of M.J.W.'s relationship with either the Shmilenkos or the Miniums would impede M.J.W.'s development and harm his wellbeing. CP at 481.

         Based on the Miniums' "concrete, unchanging negative views" of Patti, the trial court concluded that Patti's visitation with M.J.W. would be diminished or cease altogether if the trial court were to grant the Miniums' adoption petition. CP at 481. This would upset the status quo that had been so critical to M.J.W.'s development. The court also concluded that adoption posed a grave risk to the status quo established under the 2014 residential schedule because adoption divests anyone, other than the adoptive parents, of legal rights to the adopted child. The court further concluded that any attempt to enforce the agreed 2014 residential schedule order following adoption would be contrary to public policy and law, and would necessarily fail. Therefore, the trial court found that adoption was not in M.J.W.'s best interests and denied the Miniums' petition. The Miniums appeal.

         ANALYSIS

         A. Patti's Intervention[4]

         CR 24 provides two independent means by which a party may intervene-(1) as a matter of right, and (2) by permission of the court. Pub. Util. Dist. No. 1 of Okanogan County v. State, 182 Wn.2d 519, 531, 342 P.3d 308 (2015). Here, the trial court allowed Patti to intervene by both means. However, the Miniums appear[5] to only challenge the trial court's ruling on intervention as of right. Nonetheless, we analyze the propriety of the trial court's ruling as to both means of intervention for completeness.

         1. Intervention as a Matter of Right

         We will reverse the trial court's grant of intervention as a matter of right only if an error of law has occurred. Westerman v. Cary, 125 Wn.2d 277, 302, 892 P.2d 1067 (1994). An error of law is" 'an error in applying the law to the facts as pleaded and established.'" Id. (internal quotation marks ...


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