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In re Marriage of MacLaren

Court of Appeals of Washington, Division 1

May 6, 2019

In the Matter of the Marriage of CATHERINE MARIE MACLAREN, Respondent, and TRAVIS CAREY MACLAREN, Appellant.

          Schindler, J.

         The court shall deny a petition to modify a parenting plan unless the court finds adequate cause to hold a hearing. To establish adequate cause, the moving party must submit an affidavit with specific facts that establish new or previously unknown facts that a substantial change has occurred in the circumstances of the child or the nonmoving party and evidence sufficient to establish each fact the moving party must prove to modify the parenting plan. The court must also weigh and consider a number of other factors on a case-by-case basis. We reject the argument that the trial court used an improper legal standard in determining adequate cause. But because we conclude the court abused its discretion in finding the affidavits and evidence presented did not establish adequate cause to schedule a hearing on the petition to modify the parenting plan, we reverse and remand.


         Catherine and Travis MacLaren are the parents of H.M. and O.M.[1] On May 14, 2012, the court entered a final parenting plan. The parenting plan imposed no restrictions and designated Catherine as the residential parent for four-year-old H.M. and two-year-old O.M. The parenting plan gives Travis residential time with the children the first three weekends of every month. The parents alternate holidays and each have 14 days of vacation with the children each year. The parenting plan states Catherine and Travis shall engage in joint decision-making on major decisions.

         On November 6, 2017, Travis filed a petition to modify the parenting plan under RCW 26.09.260(1) and (2)(c). "I ask the court to make a major change in the parenting schedule or to change the person the child lives with most of the time." Travis alleged a substantial change in circumstances and the "current living situation is harmful to [the children's] physical, mental or emotional health. It would be better for the children to change the parenting/custody order." Travis states, "To protect the children, I ask the court to limit the other parent's parenting time and participation" in decision-making. Travis asked the court to appoint a guardian ad litem to "investigate, report, and make recommendations" regarding the best interests of 10-year-old H.M. and 8-year-old O.M.

         Travis submitted a declaration and medical and school records in support of the petition to modify the parenting plan, including an April 2017 report prepared by the International Center for Autism and Neurodevelopment (ICAN) that diagnoses H.M. with autism, Seattle Children's Hospital medical records, and a June 17, 2017 "Mental Health Evaluation and Safety Plan."

         In 2009, two-year-old H.M. was diagnosed with "Developmental Delay (Adaptive Communication-Speech Language)." In 2017, H.M. was diagnosed with "Moderate Severity Autism (a 5 on a scale of 1-10), combined with Childhood-Onset Anxiety Disorder, and ADHD."[2]

         Travis attached school records that show he alleged H.M.'s "symptoms have worsened" while in school and "cause him much suffering." The declaration includes the following chronology from school records:

• In 2013 (6 years old): worsening perseveration - now disruptive to class; report card shows "AR" (at risk for failing) in Reading, Language Arts and Math. Referral to ESY[3] (summer school) program.
• In 2014: Eligibility re-testing showed "Clinically Significant" problems in Cognitive abilities (Atypicality, Adaptability, Depression, Anxiety, Withdrawal, Poor Social Skills, and Hyperactivity), as well as ALL areas of his Executive Functioning. Emotional control problems. Poor social skills. Acute expressive language difficulties. Cognitive IQ[4] = 82. . . .
• In 2015: [H.M.] scored in the 1st (lowest) percentile for both Literacy and Math, a full grade level behind his peers. Showed negative self-image and self-talk. Frequent loss of emotional self-control - required teacher intervention. Poor social skills. Regression in both cognitive and communication skills over each summer. . . .
• In 2016 (8 years old): .... Remained in 1st percentile for Literacy, 6th percentile in Math. Class behavior distracting and disruptive to other students. Recited movie dialog instead of conversing. Very few or no friends. Began being bullied. Expressed chronic feelings of anxiety, loneliness, isolation, hopelessness, self-hatred.
• In 2017 (9 years old): . . . . [H.M.]'s educational struggles continued, with him performing in lowest percentiles and being continually bullied and ostracized at school. He scored "1", minimal progress toward standard for homework completion, with only 4 out of 61 assignments turned in.

         Travis asserts that during the summer break at the end of the 2016 school year, Catherine "refused" to follow the recommendation of the special education teacher to have H.M. "evaluated for neurodevelopment problems." Travis alleged, "Catherine has consistently denied that anything is wrong and refuses to act on any recommendations for treatment."

         Travis states that in fall 2016, Catherine "eventually consented" to "get [H.M.] evaluated at Children's Hospital . . . with the stipulation that appointments take place only on my weekends and vacations, to which I agreed in order to try to get [H.M.] the help he needed."

         Because of the "year-long wait" to get an evaluation at Children's Hospital, H.M.'s pediatrician Dr. Kevy Wijaya referred him to ICAN for an evaluation. ICAN diagnosed H.M. with "Autism Spectrum Disorder (Moderate) Without Accompanying Intellectual Impairment" but "With Accompanying Social-Pragmatic Language Impairment," "Moderate" ADHD "Impacting Academic Performance & Learning," and "Anxiety Disorder" with "Features of Performance & Social Anxiety Impact."

         The 18-page April 2017 ICAN report recommends coordinating with the school, arranging therapy for H.M. with a "board-certified behavior analyst," and "[e]ffective home strategies" to improve H.M.'s "executive processes for daily activities outside of the classroom."

         The ICAN report recommends providing the report to the school:

I strongly recommend providing a copy of this report to the school psychologist... so that the eligibility criteria for [H.M.]'s lEP[5] can be updated to autism. His current special education plan outlines his learning goals with regard to academic and psychosocial facilitation and the following recommendations related to instructional strategies can further support his needs as a student:
. . . [H.M.] exhibits clear deficits with executive organization that adversely impact his task persistence, instruction maintenance, sequential planning, strategy adaptation, and the accurate organization/application of information. The following supports, accommodations, and instructional strategies are recommended to target these challenges for improvement.

         The ICAN report recommends support and intervention strategies at home and at school:

[H.M.]'s deficits with attentional processes negatively impact his sustained auditory attention, selective-focused attention, divided attention, and impulse control abilities. The following support and intervention strategies have been outlined to remediate his attentional abilities across home and school contexts:
. . . Provide a copy of this report to the school psychologist at [H.M.]'s elementary school and inquire about eligibility for accommodations or specialized instructions under the service heading of a student with other health impairment (i.e., dysfunction in sustained attention) needs. The following classroom accommodations and instructional strategies may be helpful for [H.M.] at this time with regard to improving his attentional skills.
. . . Tutoring services will also be helpful to aid in [H.M.]'s academic development and can be obtained from the sources below.

         The ICAN report recommends H.M. engage in therapy with a board-certified behavior analyst:

[H.M.] will benefit from a sustained individual ABA[6] program that can target his social skill development in a structured and systematic fashion. ABA programming can also help with his executive organization and his school adherence. This program should be designed and overseen by a board-certified behavior analyst (BCBA) and implemented by trained behavior technicians. ABA programming will strengthen [H.M.]'s social information processing skills and the necessary skills for joining with peers. I have provided a referral to ICAN's ABA service department to initiate this program and his family will be contacted in the near future to facilitate this process. The following providers are also recommended as they relate to where [H.M.] resides.

         The ICAN report also recommends additional strategies and information for the parents:

Effective home strategies and resources to improve [H.M.]'s executive processes for daily activities outside of the classroom include but are not limited to the following:
. . . Provide [H.M.] with visual and verbal information whenever possible with regard to task completion expectations.
... I have provided [H.M.]'s family with the contact information of several of ICAN's parent support advocates for further support during this time of transition. These volunteers are parents of children with autism who lend support and consultation from a parents' perspective to those in need. I highly recommend making use of this resource in the future.[7]

         In April 2017, Travis provided a copy of the ICAN evaluation to the school and met with H.M.'s "teachers, principal, and school counselors to update his IEP, with his new diagnosis."

         Travis asserts Catherine did not agree with the ICAN diagnosis of autism and objected to changing the IEP for H.M.

Despite the recommendation of [H.M.]'s primary care physician, the Autism specialists, and school and special education professionals, Catherine objected to any further action taken on [H.M.]'s behalf. She told the school she did not agree with the diagnosis and became angry at the Special Education staff for incorporating some of its recommendations into [H.M.]'s IEP. In multiple emails, Catherine claimed (and continues to this day to claim) that [H.M.] was already receiving enough (and perhaps too many) services.

         Travis submitted an e-mail from Dr. Wijaya that recommends Catherine obtain a second opinion. The e-mail states, in pertinent part:

I think the [ICAN] assessment is as thorough as one could get, and I have no reason to doubt its validity. It is a shame that not everyone can be on the same page in regards to the result of this assessment. Coming up with a diagnosis of ASD[8] and its co-morbidities is not one easy task. All tests are standardized and evidence-based. You are more than welcome to seek a second opinion, but please kindly be reminded that they will administer the very same series of tests, which will most likely lead to very similar findings to the first evaluation.
... I will excuse myself from being in the middle of this argument, but I hope you can convince his mother to move forward with either yet another testing, or therapies as I mentioned above.

         Travis alleged Catherine obtained auditory and speech evaluations from other treatment providers to show H.M. did not have autism.

As of July 2017, though she is [H.M.]'s primary residential caregiver, Catherine has obtained NONE of the services recommended in his treatment plan and has objected to accommodations in his IEP.
Instead, she began taking [H.M.] to a variety of new providers for hearing tests, speech evaluations, et cetera, to whom she did not disclose [H.M.]'s diagnosis, with the object of trying to disprove Autism by obtaining diagnoses for Auditory Processing Disorder (APD) and Receptive/ Expressive Language Disorder.

         As an example, Travis submitted a copy of a May 11, 2017 "Initial Evaluation" from Island Hospital Physical, Occupational and Speech Therapy.

         The Island Hospital evaluation notes that Catherine told the speech-language pathologist H.M. was diagnosed with autism" 'so that he could receive additional services, '" but she "disagrees with the diagnosis":

[H.M.] is a 9-year-old male with known sensory processing and visual spatial disorder as well as ADHD. He was seen at the Western Washington University Audiology clinic in April 2017, where they determined that he has Central Auditory Processing Disorder. He also has a history of expressive and receptive language disorder. He was seen at the Autism clinic in Issaquah, Washington, where he was tested for Autism. His mother reported that his scores were borderline, but they did give him the diagnosis of Autism, "so that he could receive additional services." However, his mother disagrees with this diagnosis and is getting a second opinion from the University of Washington in Seattle. He is currently on the waiting list for re-testing.

         Travis states that on June 16, 2017, H.M. told him he "wanted to kill himself." H.M. said he was being bullied, "terrified about 5th grade," and "hated himself." Travis states, "[H.M.] said he had been feeling suicidal and sharing these thoughts with his mother for the past six months, which Catherine later verified."[9]

         The June 17 Seattle Children's Hospital "Psychiatry/Psychology Consultation" states, in pertinent part:

Father states that this is not the first time patient has wished he wasn't here. Patient told his father that he has tried to kill himself before and father asked how. Patient told his father that he sometimes chokes himself at home and at school and demonstrated to his father how he does it. This was the first time father became aware of patient sometimes choking himself as father and mother are divorced and have no contact with each other. When father and fiance asked patient about any other ways ...

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