In the Matter of the Adoption of: M.J.W., a minor child.
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 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.
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.
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.
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.
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.
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.
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.
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.
was held on the merits of the Miniums' adoption petition
in June 2017. Several family members and expert witnesses
testified at trial.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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 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.
Intervention as a Matter of Right
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 ...