author: Sutton, J.

text:
    STATE of Washington, Respondent, v. Karen Ann CONWAY, Appellant.
    No. 50032-9-II
    Court of Appeals of Washington, Division 2.
    Filed April 9, 2019
    Timothy John Murphy, Northwest Justice Project, 500 W 8th Street, Suite 275, Vancouver, WA, 98660-3086, for Appellant.
    Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
    PUBLISHED OPINION
   Sutton, J.

¶1 Karen Ann Conway appeals a superior court commissioner's order denying her motion to remit mandatory legal financial obligations (LFOs) and her motion to reconsider. She argues that (1) the superior court has broad authority to remit mandatory LFOs under three statutes and its inherent authority, (2) we should extend the holding in Fuller v. Oregon to mandatory LFOs, (3) the Clark County Court Clerk's office took enforcement action against her without conducting an inquiry into her ability to pay under State v. Blank, (4) the superior court's findings of fact 1, 5, and 6 are clearly erroneous, and (5) the superior court's failure to remit the mandatory LFOs violates her equal protection and substantive due process rights. Conway requests that we vacate the superior court's orders and remand for entry of an order striking the victim penalty assessment fee and the criminal filing fee. We reject all of her arguments and affirm.

FACTS

¶2 In March 2007, Conway pleaded guilty in the Clark County Superior Court to one count of maintaining a dwelling for controlled substances. The superior court sentenced her and ordered her to pay various LFOs, including two mandatory LFOs: a $ 500 victim penalty assessment fee (VPA) under former RCW 7.68.035 (2000) and a $ 200 criminal filing fee under former RCW 9.94A.505 (2002).

¶3 Conway, who was receiving Supplemental Security Income (SSI) due to a disability, made some, but not all, of the ordered payments toward the judgment and sentence. The Clark County Superior Court's Collections Unit periodically sent Conway notices to appear for a payment review and either make a payment or explain why she could not do so. These notices stated that if she failed to pay or appear, she could be placed in custody. At one point, the clerk's office e-mailed Conway, explaining that she would be required to provide an annual letter to verify her SSI status.

¶4 In 2016, Conway filed a motion to remit all LFOs except the VPA fee and the criminal filing fee based on her indigency and SSI status. The superior court conducted a hearing and entered written findings of fact and conclusions of law. The court found that Conway was indigent and had been on SSI for 27 years.

¶5 In its order, the superior court remitted the balance of interest owing, the criminal fine, the court appointed attorney fee, the deoxyribonucleic acid (DNA) fee (which was discretionary at the time), the crime lab fee, the drug fund fee, and the balance of collection fees. As to the two remaining mandatory LFOs, the VPA fee and the criminal filing fee, the court ruled that Conway owed a balance of $ 493.55 for the VPA fee and $ 197.41 for the criminal filing fee, but it ordered that "the court cannot require her to pay on the remaining mandatory LFOs at this time." Clerk's Papers (CP) at 378.

¶6 Conway filed a motion to reconsider in December 2016, arguing for the first time that the imposition of the two mandatory LFOs violated her equal protection and substantive due process rights. The superior court denied the motion and entered the following additional relevant findings:

1. ... [T]he Clark County Clerk's office did not unlawfully collect statutorily authorized collection fees and that the [c]ourt has no authority to direct the [c]ounty [c]lerk as to application of payments received from Ms. Conway.
....
5. ... [T]his [c]ourt can conceive of circumstances wherein Ms. Conway may be able to pay the fees and assessments in the future.
6. ... The [c]ourt finds that there has never been enforcement in Ms. Conway's case. Ms. Conway has never been brought to court on a [m]otion for nonpayment. Sanctions have never been sought or imposed against her for nonpayment. The [c]ourt declines to find, as requested by Ms. Conway, that the State/Clark County Clerk's office was on notice and therefore required to conduct an inquiry regarding payment of LFO's when Ms. Conway was brought to court on probation violations unrelated to LFO's. Again, no enforcement sanctions were sought against Ms. Conway to trigger a Blank inquiry.

CP at 399-400.

¶7 Conway appeals both orders; a commissioner of this court granted discretionary review.

ANALYSIS

I. LEGAL PRINCIPLES

¶8 Our court has recognized that the effects on an indigent defendant remain the same whether the LFOs are mandatory or discretionary. State v. Mathers , 193 Wash. App. 913, 916, 376 P.3d 1163 (2016). "However, until there are legislative amendments or Supreme Court changes in precedent, we must recognize these distinctions and adhere to the principles of stare decisis ." Mathers , 193 Wash. App. at 916, 376 P.3d 1163. The court's authority to impose LFOs is statutory. Mathers , 193 Wash. App. at 917, 376 P.3d 1163 (citing RCW 10.01.160(3) ). The legislature has authorized the courts to impose a VPA fee and a criminal filing fee as mandatory LFOs.

¶9 The VPA fee is authorized under former RCW 7.68.035(1)(a) (2000) which states:

When any person is found guilty in any superior court of having committed a crime ... there shall be imposed by the court upon such convicted person a penalty assessment. The assessment shall be in addition to any other penalty or fine imposed by law and shall be five hundred dollars for each case or cause of action that includes one or more convictions of a felony or gross misdemeanor and two hundred fifty dollars for any case or cause of action that includes convictions of only one or more misdemeanors.

(Emphasis added).

¶10 The criminal filing fee is authorized under former RCW 36.18.020(2)(h) (2005) which states:

Upon conviction or plea of guilty, upon failure to prosecute an appeal from a court of limited jurisdiction as provided by law, or upon affirmance of a conviction by a court of limited jurisdiction, a defendant in a criminal case shall be liable for a fee of two hundred dollars.

(Emphasis added).

II. LEGISLATIVE INTENT

¶11 Washington courts have consistently held that a trial court need not consider a defendant's past, present, or future ability to pay when it imposes either the VPA fee or the criminal filing fee. See State v. Curry, 118 Wash.2d 911, 917-18, 829 P.2d 166 (1992) (VPA fees are mandatory notwithstanding defendant's ability to pay); see also State v. Clark, 191 Wash. App. 369, 374, 362 P.3d 309 (2015) (VPA fees and criminal filing fees are mandatory obligations not subject to a defendant's ability to pay); State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013) ; State v. Kuster, 175 Wash. App. 420, 424-25, 306 P.3d 1022 (2013) ; State v. Thompson, 153 Wash. App. 325, 337, 223 P.3d 1165 (2009) ; State v. Williams, 65 Wash. App. 456, 460, 828 P.2d 1158, 840 P.2d 902 (1992).

¶12 "Washington courts consistently treat the [mandatory LFO] statutes as separate and distinct from the discretionary LFO statute and the restitution statute." Mathers , 193 Wash. App. at 919, 376 P.3d 1163. "Where the legislature has had time to correct a court's interpretation of a statute and has not done so, we presume the legislature approves of our interpretation." Mathers , 193 Wash. App. at 918, 376 P.3d 1163.

III. AUTHORITY TO REMIT MANDATORY LFOS

A. STATUTORY AUTHORITY TO REMIT MANDATORY LFOS

¶13 Conway argues that the superior court has discretion and broad statutory authority to remit the mandatory LFOs at issue and erred by refusing to do so. She cites former RCW 9.94A.6333 (2008), former RCW 9.94A.634 (2002) , and former RCW 10.01.180(4) (2010). We disagree because none of the statutes Conway cites authorize the superior court to remit the mandatory LFOs. Thus, her claim fails.

¶14 "Statutory interpretation is a question of law that we review de novo." State v. Van Noy , 3 Wash. App. 2d 494, 497, 416 P.3d 751 (2018). The primary goal of statutory interpretation is to determine and give effect to the legislature's intent. Van Noy , 3 Wash. App. 2d at 498, 416 P.3d 751. To determine the legislature's intent, we first look to the plain language of the statute, consider the language of the provisions in question, and determine how the provisions fit within the context of the statute and the statutory scheme as a whole. Van Noy , 3 Wash. App. 2d at 498, 416 P.3d 751. We attempt to harmonize the provisions within a statute so that no portion is rendered superfluous or meaningless. State v. LaPointe , 1 Wash. App. 2d 261, 269, 404 P.3d 610 (2017). "If the plain language of the statute is unambiguous, then [our] inquiry is at an end." State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007).

¶15 Former RCW 9.94A.6333 states,

(2) If an offender fails to comply with any of the conditions or requirements of a sentence the following provisions apply:
....
(d) If the court finds that the violation was not willful, the court may modify its previous order regarding payment of legal financial obligations and regarding community restitution obligations[.]

¶16 Former RCW 9.94A.634 states,

(3) If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply:
....
(d) If the court finds that the violation was not willful, the court may modify its previous order regarding payment of legal financial obligations and regarding community restitution obligations.

¶17 Former RCW 10.01.180(4) states that "[i]f it appears to the satisfaction of the court that the default in the payment of a fine or costs is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each installment or revoking the fine or costs or the unpaid portion thereof in whole or in part."

¶18 None of these statutes authorize the superior court to remit the VPA fee or the criminal filing fee here. Former RCW 9.94A.6333 and former RCW 9.94A.634 are general statutes that apply when defendants fail to comply with conditions or requirements of their sentences but the violations are not willful and relate to community restitution obligations. Neither of these statutes authorize a court to remit the VPA fee and the criminal filing fee. Thus, neither former RCW 9.94A.6333 nor former RCW 9.94A.634 apply.

¶19 Former RCW 10.01.180(4) applies if a defendant is in default, but not in contempt, for nonpayment of fines or costs and grants the court discretion to allow a defendant additional time to pay, reduce the amount of fines or costs, or revoke the fines or costs. The VPA fee and the criminal filing fee are not "fines" or "costs" as defined in RCW 10.01.180(4). Nor does Conway argue that they are fines or costs. Thus, former RCW 10.01.180(4) does not apply.

¶20 We also note that Conway's original motion to remit was filed under former RCW 10.01.160(4) (2015), the statute in effect at the time applicable to discretionary costs. That statute authorizes a superior court to remit certain LFOs, "[i]f it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170." Former RCW 10.01.160(4).

¶21 On appeal, Conway does not argue that former RCW 10.01.160(4) applies here. As discussed, she argues that other statutes apply to authorize the court to remit the mandatory LFOs at issue. Because we adhere to the statutory principle that a specific statute controls over a general statute, we hold that the more specific remittance statute, RCW 10.01.160(4), controls, but that it does not authorize the court to remit the mandatory LFOs at issue here. See State v. Flores , 194 Wash. App. 29, 36-37, 374 P.3d 222 (2016). Because the statutory authority Conway cites does not authorize the court to remit the two mandatory LFOs at issue, her argument fails.

B. THE COURT'S INHERENT AUTHORITY TO REMIT

¶22 Conway also argues that the superior court has the inherent authority to remit mandatory LFOs under State v. Johnson , 54 Wash. App. 489, 491, 774 P.2d 526 (1989). Because State v. Johnson does not apply, Conway's argument fails.

¶23 Division I of this court held in Johnson , that "in the absence of statutory language indicating otherwise, a sentencing court has jurisdiction to enforce the requirements of a sentence imposed until those requirements are met and/or a certificate of discharge is [issued] upon completion of [the] sentence." Johnson , 54 Wash. App. at 491, 774 P.2d 526. Johnson addressed a court's enforcement of a sentence, not a court's remittance of mandatory LFOs. Johnson , 54 Wash. App. at 490, 774 P.2d 526. Thus, Johnson does not apply here.

¶24 Conway does not provide any other authority to support her claim that the court has inherent authority to remit mandatory LFOs. "If a party does not provide a citation to support an asserted proposition, the court may 'assume that counsel, after diligent search, has found [no supporting authority].' " State v. Arredondo , 188 Wash.2d 244, 262, 394 P.3d 348 (2017) (citing State v. Young , 89 Wash.2d 613, 625, 574 P.2d 1171 (1978) ) (quoting DeHeer v. Seattle Post-Intelligencer , 60 Wash.2d 122, 126, 372 P.2d 193 (1962) ). Thus, we hold that Conway's argument fails.

C. Fuller v. Oregon

¶25 Conway argues that enforcement of the mandatory LFOs would infringe on her constitutional rights under Fuller v. Oregon and asks us to extend Fuller to mandatory LFOs. Fuller concerned an Oregon recoupment statute requiring a defendant on probation to reimburse the cost of appointed counsel. Fuller , 417 U.S. 40, 54, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). The United States Supreme Court upheld the statute as constitutional because it contained sufficient procedural safeguards to protect against oppressive application. Fuller , 417 U.S. at 54, 94 S.Ct. 2116. In Fuller , the trial court found the defendant indigent at the time of the criminal proceedings, but imposed discretionary costs after he subsequently acquired the ability to pay. Fuller, 417 U.S. at 42, 94 S.Ct. 2116. In discussing the defendant's obligation to repay defense costs under the statute, the Court observed that the Oregon statute was never mandatory, "[r]ather, several conditions must be satisfied," and one of the conditions was that the defendant was convicted. Fuller , 417 U.S. at 44-45, 94 S.Ct. 2116.

¶26 Conway's arguments related to Fuller have been previously rejected. See Mathers , 193 Wash. App. at 926, 376 P.3d 1163 (rejecting equal protection and Fourteenth Amendment arguments against imposition of mandatory LFOs). Therefore, we decline to extend Fuller to mandatory LFOs, and thus, we hold that Conway's argument fails.

IV. ENFORCEMENT ACTION

¶27 Conway next argues that the county clerk took enforcement action against her without lawful authority and without conducting an inquiry into her ability to pay under State v. Blank. , She also argues that findings of fact 1 and 6 relating to the clerk's actions are "clearly erroneous," and finding of fact 5, that the court can conceive of circumstances where Conway would be able to pay and no enforcement action is taken, is also "clearly erroneous." Br. of Appellant at 17, 23. We disagree.

A. CLERK'S AUTHORITY

¶28 RCW 9.94A.760(5) authorizes the county clerk "to collect unpaid legal financial obligations at any time the offender remains under the jurisdiction of the court for purposes of his or her legal financial obligations." RCW 9.94A.760(14) also states that "[t]he county clerk may access the records of the employment security department for the purposes of verifying employment or income, seeking any assignment of wages, or performing other duties necessary to the collection of an offender's legal financial obligations."

¶29 Conway appears to argue that the county clerk did not have the authority to require her to verify annually her SSI status. This argument fails because the county clerk has statutory authority under RCW 9.94A.760(14) to verify income as necessary for the collection of LFOs. Under RCW 9.94A.760(14), the clerk's office has the authority to require Conway to verify her SSI status annually. Thus, her argument fails.

B. STATE V. BLANK INQUIRY

¶30 Conway next argues that, "the [c]lerk's office continues to enforce the mandatory LFOs against Ms. Conway by requiring her to submit yearly proof of her SSI income. Under Blank , this is unconstitutional because [she] lacks the present and future ability to pay due to her enduring indigency." Br. of Appellant at 21. We disagree because no enforcement action has been taken against Conway related to the mandatory LFOs at issue to trigger an inquiry into her ability to pay under State v. Blank .

¶31 "[T]he Constitution does not require an inquiry into ability to pay at the time of sentencing. Instead the relevant time is the point of collection and when sanctions are sought for nonpayment." Blank , 131 Wash.2d 230, 242, 930 P.2d 1213 (1997). "It is at the point of enforced collection ..., where an indigent 'may be faced with the alternatives of payment or imprisonment, that he may assert a constitutional objection on the ground of his indigency.' " Curry , 118 Wash.2d at 917, 829 P.2d 166 (alternation in original) (quoting State v. Curry, 62 Wash. App. 676, 681-82, 814 P.2d 1252 (1991) ).

¶32 Here, there is no evidence that Conway was ever subject to a motion for nonpayment, motion for default, motion for sanctions for nonpayment, or motion for imprisonment for nonpayment of the two mandatory LFOs. Thus, because there was no enforcement action taken against Conway, the court was not required at this stage to conduct an inquiry into Conway's ability to pay under State v. Blank . Thus, her argument fails.

C. FINDINGS OF FACT 1 AND 6

¶33 Conway argues that the superior court's findings of fact 1 and 6 are clearly erroneous. We disagree.

¶34 Generally, we review a court's findings of fact for substantial evidence. State v. Smith , 185 Wash. App. 945, 956, 344 P.3d 1244 (2015). However, a court's "factual determination concerning a defendant's resources and ability to pay is reviewed under the clearly erroneous standard." State v. Clark , 191 Wash. App. at 372, 362 P.3d 309 (internal quotation marks omitted). Under a clearly erroneous standard, an application of law to facts is "clearly erroneous" if, after reviewing all evidence, we are left with the definite and firm conviction that a mistake has been committed. Whatcom County Fire Dist. No. 21 v. Whatcom County , 171 Wash.2d 421, 427, 256 P.3d 295 (2011).

¶35 The court's finding of fact 1 stated:

[T]he Clark County Clerk's office did not unlawfully collect statutorily authorized collection fees and that the [c]ourt has no authority to direct the [c]ounty [c]lerk as to application of payments received from Ms. Conway.

CP at 399.

¶36 The court's finding of fact 6 stated:

The [c]ourt finds that there has never been enforcement in Ms. Conway's case. Ms. Conway has never been brought to court on a [m]otion for nonpayment. Sanctions have never been sought or imposed against her for nonpayment. The [c]ourt declines to find, as requested by Ms. Conway, that the State/Clark County Clerk's office was on notice and therefore required to conduct an inquiry regarding payment of LFO's when Ms. Conway was brought to court on probation violations unrelated to LFO's. Again, no enforcement sanctions were sought against Ms. Conway to trigger a Blank inquiry.

CP at 400.

¶37 As discussed above, there is no evidence in the record that the clerk's office took enforcement action against Conway. There is no evidence that Conway was ever subject to a motion for nonpayment, motion for default, motion or for sanctions for nonpayment, or motion for imprisonment for nonpayment of the two mandatory LFOs. We hold that Findings of fact 1 and 6 are not clearly erroneous and Conway's argument fails.

D. COURT'S STATEMENT - FINDING OF FACT 5

¶38 Conway next challenges the following portion of finding of fact 5:

Like the majority [in State v. Seward ], this [c]ourt can conceive of circumstances wherein Ms. Conway may be able to pay the fees and assessment in the future.

CP at 400. Conway argues that the superior court's "finding," that it "could conceive of circumstances" regarding her future ability to pay, is clearly erroneous. Br. of Appellant at 17.

¶39 The superior court's statement is not a finding of fact that we review. Instead, the court's statement is a legal holding mirroring language from the majority in State v . Seward holding that the court may assume the existence of any necessary state of facts which it can reasonable conceive in determining whether a rational relationship exists between the challenged law and a legitimate state interest. 196 Wash. App. at 585, 384 P.3d 620. Thus, we hold that Conway's argument fails.

V. CONSTITUTIONAL ISSUES

A. EQUAL PROTECTION

¶40 Conway argues that her equal protection rights were violated because the superior court failed to remit the mandatory LFOs even though she lacks the present and future ability to pay. However, Conway fails to adequately brief the equal protection issue. Peste v. Mason County , 133 Wash. App. 456, 469 n.10, 136 P.3d 140 (2006) (We do not address constitutional arguments that are not supported by adequate briefing.). Thus, we decline to review this argument.

B. SUBSTANTIVE DUE PROCESS

¶41 Conway next argues that her substantive due process rights were violated because the superior court failed to remit the mandatory LFOs at issue when she lacks the present and future ability to pay. We disagree because there is a rational basis for imposing the mandatory costs.

¶42 "We review constitutional challenges de novo." State v. Beaver , 184 Wash.2d 321, 331, 358 P.3d 385 (2015). A person claiming a due process violation has the burden of proof. See Seward , 196 Wash. App. at 584, 384 P.3d 620. "Statutes are presumed to be constitutional." Blank , 131 Wash.2d at 235, 930 P.2d 1213.

¶43 Our federal and state constitutions prohibit the deprivation of life, liberty, or property without due process of law. U.S. CONST. amends. V, XIV ; WASH. CONST. art I, § 3. The due process clause of the federal constitution confers both procedural and substantive protections. Beaver , 184 Wash.2d at 332, 358 P.3d 385. Substantive due process "bars wrongful and arbitrary government conduct." Beaver , 184 Wash.2d at 332, 358 P.3d 385. Government action violates substantive due process if a deprivation of life, liberty, or property is substantively unreasonable or is not supported by a legitimate justification. Nielsen v. Dep't of Licensing , 177 Wash. App. 45, 53, 309 P.3d 1221 (2013).

¶44 Where, as here, the government's action does not interfere with a fundamental right, we apply a highly deferential rational basis standard. Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 222, 143 P.3d 571 (2006). Under a rational basis review, we determine whether a rational relationship exists between the challenged law and a legitimate state interest. Amunrud , 158 Wash.2d at 222, 143 P.3d 571. In making this determination, we "may assume the existence of any necessary state of facts which [we] can reasonably conceive." Amunrud, 158 Wash.2d at 222, 143 P.3d 571. The rational basis standard is highly deferential to the challenged action. Nielsen , 177 Wash. App. at 53, 309 P.3d 1221.

¶45 Washington courts have consistently rejected identical arguments that the imposition of mandatory LFOs violate substantive due process. Mathers held that the imposition of the VPA fee and the DNA fee did not violate substantive due process, following Curry. 193 Wash. App. at 928, 376 P.3d 1163. Our Supreme Court held in Curry , "that the VPA statute did not violate due process because 'no defendant will be incarcerated for his or her inability to pay the penalty assessment unless the violation is willful.' " Mathers , 193 Wash. App. at 928, 376 P.3d 1163 (quoting Curry , 118 Wash.2d at 918, 829 P.2d 166 ).

¶46 In Seward , we held that imposing mandatory LFOs, the VPA fee and the criminal filing fee, were rationally related to legitimate state interests because (1) "the VPA serves the legitimate state interest of funding comprehensive programs to encourage and facilitate testimony by victims and witnesses of crimes," and (2) "the [criminal] filing fee serves the legitimate state interest in compensating the court clerks for their official services." Seward , 196 Wash. App. at 584-85, 384 P.3d 620. Thus, Conway's substantive due process claim fails.

¶47 We reject all of Conway's arguments and affirm.

We concur:

Lee, A.C.J.

Worswick, J.

      For ease of reference, this opinion refers to the court commissioner as the court.

      Both parties agree that the statutory amendments enacted by Engrossed Second Substitute H.B. 1783, § 18, 65th Leg., Reg. Sess. (Wash. 2017) do not apply in these circumstances. As a result, we do not further address this issue.

      417 U.S. 40, 43, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). Fuller upheld as constitutional an Oregon recoupment statute requiring a convicted defendant on probation to repay defense costs when he was indigent during the criminal proceedings, but subsequently acquired the ability to pay.

      131 Wash.2d. 230, 242, 930 P.2d 1213 (1997).

      This statute was recodified as RCW 9.94B.040 by Laws 2008, ch. 231, § 56, effective Aug. 1, 2009.

      131 Wash.2d. 230, 242, 930 P.2d 1213 (1997).

      We note that her arguments here do not relate to whether a court has the authority to remit the two mandatory LFOs at issue.

      This portion of finding of fact 5 is mislabeled as a finding of fact. We treat mislabeled findings of fact or conclusions of law as what they actually are, and review them accordingly. Willener v. Sweeting , 107 Wash.2d 388, 394, 730 P.2d 45 (1986).

      196 Wash. App. 579, 384 P.3d 620 (2016), review denied , 188 Wash.2d 1015, 396 P.3d 349 (2017).


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF THE ADOPTION OF: M.J.W., a minor child.
    No. 50758-7-II
    Court of Appeals of Washington, Division 2.
    Filed April 16, 2019
    Darrel S. Ammons Jr., Attorney at Law PLLC, 871 11th Ave. Ste. 2, Longview, WA, 98632-2430, for Appellant.
    Matthew J. Andersen, Chelsea C. Baldwin, Walstead Mertsching PS, P.O. Box 1549, Longview, WA, 98632-7934, for Respondent.
   Lee, A.C.J.

¶ 1 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 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.

¶ 2 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

¶ 3 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.

¶ 4 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.

¶ 5 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.

¶ 6 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.

¶ 7 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.

¶ 8 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

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

¶ 10 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.

¶ 11 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.

¶ 12 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.

¶ 13 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.

¶ 14 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.

¶ 15 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.

¶ 16 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.

¶ 17 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.

¶ 18 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.

¶ 19 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.

¶ 20 The Miniums appeal.

ANALYSIS

A. PATTI'S INTERVENTION

¶ 21 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 Wash.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.

1. Intervention as a Matter of Right

¶ 22 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 Wash.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 omitted) (quoting In re Jones' Estate , 116 Wash. 424, 426, 199 P. 734 (1921) ) .

¶ 23 A person shall be permitted to intervene as a matter of right:

[W]hen the applicant claims an interest relating to the property or transaction which is the subject of the action and the person is so situated that the disposition of the action may as a practical matter impair or impede the person's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

CR 24(a)(2).

¶ 24 Here, Patti claims she is allowed to intervene as a matter of right based on the 2010 residential scheduling order. Patti argues that the 2010 order vested her with "substantial visitation rights" and that the trial court did not err in allowing her to intervene in order to protect those rights. Br. of Resp't at 29. The Miniums argue that this claimed interest was insufficient to confer intervention as a matter of right because there is no statutory authority allowing a third party to intervene in order to protect their visitation interests. We agree with the Miniums.

¶ 25 The meaning of " 'interest' " under CR 24(a)(2) is to be interpreted broadly, with flexibility, and analyzed on a case-by-case basis. Westerman , 125 Wash.2d at 303, 892 P.2d 1067. However, the interest that the intervenor seeks to protect must be an interest recognized by law. Id. Our Supreme Court "has repeatedly held that absent a valid statute, there is no right to third-party visitation under our existing laws." In re Custody of M.W. , 185 Wash.2d 803, 811, 374 P.3d 1169 (2016).

¶ 26 Indeed, several of Washington's nonparental visitation statutes have been found unconstitutional, both facially and as applied. See In re Parentage of C.A.M.A. , 154 Wash.2d 52, 66, 109 P.3d 405 (2005) ; In re Custody of Smith , 137 Wash.2d 1, 20-21, 969 P.2d 21 (1998), aff'd sub nom , Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; In re Custody of T.L. , 165 Wash. App. 268, 282, 268 P.3d 963 (2011). In Smith , our Supreme Court held unconstitutional RCW 26.10.160(3) and former RCW 26.09.240, which allowed a nonparent to petition the court for visitation rights, because they impermissibly interfered with a parent's fundamental interest in the " 'care, custody and companionship of the child.' " 137 Wash.2d at 21, 969 P.2d 21 (quoting In re Sumey , 94 Wash.2d 757, 762, 621 P.2d 108 (1980) ). Several years later, in C.A.M.A. , our Supreme Court held Washington's visitation statute unconstitutional, even though it had been amended to presume that a grandparent's visitation was in a child's best interest only if a significant grandparent-grandchild relationship was present. 154 Wash.2d at 57, 59, 109 P.3d 405. And most recently, in M.W. , our Supreme Court reaffirmed its prior holdings "that there is no statutory basis for third-party visitation under our laws." 185 Wash.2d at 813, 374 P.3d 1169.

¶ 27 Thus, Patti's interest in safeguarding her third-party visitation with M.J.W. was not an interest recognized by law. Moreover, "[b]ecause the process of adoption is a creature of statute, the adoption statutes must be strictly followed." In re Adoption of B.T. , 150 Wash.2d 409, 416, 78 P.3d 634 (2003). Nothing in the adoption statutes allows a third party to intervene as a matter of right in order to safeguard their interests in maintaining visitation with the child. Under RCW 26.33.160(1), the only relatives whose consent is required for adoption, and thus the only relatives entitled to notice of an adoption, are the child's parents, the alleged father of a minor child, or a relative who is the child's legal guardian. In re Adoption of R.L.M. , 138 Wash. App. 276, 284, 156 P.3d 940 (2007), review denied , 162 Wash.2d 1023, 178 P.3d 1033 (2008).

¶ 28 Because Patti's interest in maintaining third-party visitation with M.J.W. was not an interest recognized by law, the trial court erred in allowing Patti to intervene as a matter of right in the adoption. However, as explained below, this error does not compel reversal because the trial court did not abuse its discretion in allowing Patti to permissively intervene.

2. Permissive Intervention

¶ 29 Even if a party does not claim an interest to allow intervention as a matter of right, the trial court may allow that party to intervene permissively "[w]hen an applicant's claim or defense and the main action have a question of law or fact in common."

CR 24(b)(2). Here, the trial court also allowed Patti to permissively intervene.

¶ 30 The trial court has considerable discretion to allow intervention under this rule, and consequently, we will reverse such ruling only for an abuse of that discretion. Pub. Util. Dist. No. 1 of Okanogan , 182 Wash.2d at 531, 342 P.3d 308. " 'An abuse of discretion exists only when no reasonable person would take the position adopted by the trial court.' " Id. (internal quotation marks omitted) (quoting Westerman , 125 Wash.2d at 304, 892 P.2d 1067 ).

¶ 31 The Miniums appear to argue that the trial court abused its discretion in allowing Patti to permissively intervene in the adoption proceeding because she was neither an adoptee nor a prospective adoptive parent. They also argue that nothing in chapter 26.33 RCW allows a third party to intervene for the purposes of objecting to an adoption.

¶ 32 As explained above, the Miniums are correct that nothing in the adoption statutes provided Patti the right to intervene in the adoption proceeding under CR 24(a). However, under CR 24(b), "anyone may be permitted to intervene in an action ... [w]hen an applicant's claim or defense and the main action have a question of law or fact in common." And "[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." CR 24(b)(2).

¶ 33 The Miniums do not dispute that Patti had an independent claim or defense with a law or fact common to their adoption petition. Instead, they argue that under B.T. , Patti could only participate in the adoption proceedings if she was a prospective adoptive parent. In B.T. , our Supreme Court held that a grandmother and stepfather had standing to intervene in a post-termination adoption proceeding, so long as they met the requirements of an adoptive parent under RCW 26.33.140(2). 150 Wash.2d at 419, 78 P.3d 634.

¶ 34 However, the B.T. decision focused on standing to intervene as a statutory right. Id. at 416, 78 P.3d 634. The B.T. court never held that it would be an abuse of discretion for the trial court to allow permissive intervention of persons who have not filed adoption petitions themselves. In fact, the B.T. court

recognize[d] that while the adoption process is a creature of statute, it is not such a technical one that the trial court is left without power to conduct evidentiary hearings to procure significant evidence or facts before granting or denying an adoption petition, and to allow the intervention of appropriate and interested parties.

Id. "The guiding principle behind the adoption process is to determine what is in the best interest of the child." Id. at 417, 78 P.3d 634. And in conducting a hearing under Chapter 26.33, "[t]he court may require the presence of witnesses deemed necessary to the disposition of the petition." RCW 26.33.060.

¶ 35 Here, the Miniums and Patti had entered into an agreed residential schedule regarding M.J.W. in 2010, when he was two years old. The residential schedule provided for frequent, regular visits with Patti. Thus, the record shows that beginning at the age of two, M.J.W. regularly visited and resided with Patti.

¶ 36 Given the long-term relationship between M.J.W. and Patti, deeming her presence necessary to determine the best interests of M.J.W. cannot be said to be a position that no reasonable person would take. In light of the trial court's power "to allow the intervention of appropriate and interested parties" in an adoption proceeding, we hold that the trial court did not abuse its discretion in allowing Patti to permissively intervene. Id. at 416, 78 P.3d 634.

B. DENIAL OF ADOPTION PETITION

¶ 37 Next, the Miniums appear to argue that the trial court erred in denying their adoption petition because (1) the trial court erroneously concluded that the 2014 residential schedule would automatically terminate upon adoption, and (2) the trial court relied on speculation in reaching its decision. We disagree.

1. Standard of Review

¶ 38 We review a trial court's determination that adoption is in the best interests of the adoptee for an abuse of discretion. See In re Adoption of Hamilton , 41 Wash.2d 53, 56, 246 P.2d 849 (1952) ("Trial courts must of necessity have a wide latitude of discretion in matters coming before them involving minor children, and their orders and judgments should not be disturbed by the appellate court except for very cogent reasons."); In re Dependency of J.S. , 111 Wash. App. 796, 804, 46 P.3d 273 (2002) ("Courts have broad discretion and are allowed considerable flexibility to receive and evaluate all relevant evidence in order to reach a decision recognizing both the welfare of the child and the parental rights."). "A trial court abuses its discretion when its decision 'is manifestly unreasonable or based upon untenable grounds or reasons.' " Salas v. Hi-Tech Erectors , 168 Wash.2d 664, 668-69, 230 P.3d 583 (2010) (quoting State v. Stenson , 132 Wash.2d 668, 701, 940 P.2d 1239 (1997), cert. denied , 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998) ). A ruling is based on untenable grounds or reasons if the trial court applies the wrong legal standard or relies on facts that are unsupported. Id. at 669, 230 P.3d 583.

2. Finding Based on 2014 Residential Schedule Order

¶ 39 The Miniums argue that the trial court erred when it found that granting their adoption petition "would automatically terminate" the 2014 residential schedule order. Br. of Appellant at 27. In doing so, the Miniums argue that the trial court used the residential visitation schedule "as a vehicle to deprive a child from a permanent adoptive home." Br. of Appellant at 32.

¶ 40 The Miniums' argument overlooks the guiding principle behind the adoption process, which "is to determine what is in the best interest of the child." B.T. , 150 Wash.2d at 417, 78 P.3d 634. The trial court was not tasked with deciding between a 2014 residential schedule and the Miniums' adoption petition. The trial court's inquiry was to determine whether adoption by the Miniums was in M.J.W.'s best interests. See RCW 26.33.240(3).

¶ 41 Based on the evidence at trial, the trial court found that M.J.W. was "thriving under the 2014 Residential Schedule." CP at 481. The residential schedule protected M.J.W. from instability and ensured he would not be "placed in a loyalty bind between the parties." CP at 481. And the court found that having a legal parent would have no positive effect on M.J.W.'s emotional health or development. Thus, when weighed against the potential benefits of adoption, the trial court found that it was in M.J.W.'s best interest to maintain the status quo established under the 2014 residential schedule order. The Miniums do not argue that these were untenable grounds or reasons to deny the adoption petition. And they provide no support for their accusation that such ruling was intended to deprive M.J.W. of a permanent home.

¶ 42 Also, contrary to the Miniums' argument, adoption would have posed a grave risk to the status quo established under the 2014 residential schedule, as the trial court concluded. The entry of an adoption decree "divests any parent or alleged father who is not married to the adoptive parent ... of all legal rights and obligations in respect to the adoptee." RCW 26.33.260(1). Upon entry of an adoption decree, "[t]he adoptee shall be, to all intents and purposes, and for all legal incidents, the child, legal heir, and lawful issue of the adoptive parent ... and subject to all the obligations of a natural child of the adoptive parent." RCW 26.33.260(1). "[A] grandparent has no standing to petition for visitation rights subsequent to adoption of the grandchild by others, whether strangers or relatives." In re Custody of B.S.Z.-S. , 74 Wash. App. 727, 729, 875 P.2d 693 (1994) (holding that formal adoption terminated any visitation rights that a paternal grandmother may have had prior to adoption).

¶ 43 The Miniums fail to show that the trial court abused its discretion in considering how adoption would upset the status quo established under the 2014 residential schedule. Accordingly, we hold that the Miniums' challenge fails.

3. Evidentiary Ruling

¶ 44 The Miniums argue that the trial court abused its discretion in allowing Dillman and Pannell to testify as to whether adoption would likely affect M.J.W.'s visitation with Patti. The Miniums appear to argue that had the trial court properly excluded this evidence as speculation, then it would not have concluded that M.J.W.'s visitation with Patti might diminish or cease altogether following adoption. We disagree.

¶ 45 "We review a trial court's decision to admit or exclude evidence for an abuse of discretion." Salas , 168 Wash.2d at 668, 230 P.3d 583. A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. Id. at 669, 230 P.3d 583.

¶ 46 "Where there is no basis for the expert opinion other than theoretical speculation, the expert testimony should be excluded." Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha , 126 Wash.2d 50, 103, 882 P.2d 703 (1994). And conclusory or speculative expert opinions lacking adequate foundation shall not be admitted. Stedman v. Cooper , 172 Wash. App. 9, 16, 292 P.3d 764 (2012).

¶ 47 ER 701 governs the admissibility of opinion testimony by a lay witness. ER 701 limits lay opinion testimony to testimony "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge."

a. Dillman's testimony

¶ 48 Dillman's testimony that adoption could potentially change Patti's visitation with M.J.W. was not based on theoretical speculation. Dillman testified that he had discussed the Shmilenkos with Linda several times, and as a result of those discussions, he initially developed a very negative view of the Shmilenkos. He explained that Linda accused Patti of drug use and told him that Patti had forced M.J.W. to spend time with her, even though the visits caused M.J.W. considerable anxiety. After meeting with the Shmilenkos in person, Dillman learned that his view of the Shmilenkos based on his discussions with Linda was incorrect. Dillman also concluded, based on his visits with all the parties and M.J.W., that the antipathy between the Shmilenkos and the Miniums was negatively impacting M.J.W.

¶ 49 Thus, Dillman had personal knowledge of the animosity between the parties from his visits and discussions with the parties, and he could conclude, based on his observations and interviews, that the Miniums might seek to limit the Shmilenkos's visitation with M.J.W. following adoption. The trial court did not abuse its discretion in overruling the Miniums' objection to Dillman's testimony.

b. Pannell's testimony

¶ 50 The Miniums also argue that the trial court abused its discretion in overruling their objection to a portion of Pannell's testimony regarding her opinion on future visitation. Pannell was the guardian ad litem appointed by the court to advocate for M.J.W.'s best interests in this case. In preparing her report, Pannell interviewed the Miniums and the Shmilenkos. She observed that the Shmilenkos had acted as "peacekeepers" in this case and tried to hire a mediator to resolve the issues between the parties. 5 VRP at 687. Linda reported to Pannell that Patti was unable to provide proper oversight over M.J.W., and that Patti was manipulative and controlling. During the course of her investigation, Pannell found Linda's accusations to be untrue. Pannell also observed that during M.J.W.'s visitation exchanges, the Miniums would refuse to smile at, look at, or speak to the Shmilenkos. Pannell concluded that this tension between the parties was causing M.J.W. stomachaches.

¶ 51 Given the time Pannell spent observing and interviewing the parties, it was not manifestly unreasonable to allow her to testify, based on her personal observations, whether she believed that the Miniums might try to limit the Shmilenko's access to M.J.W. following adoption. Pannell's testimony relating the tension between the Miniums and the Shmilenkos was based on her personal observations, and laid the foundation for her to testify whether she personally believed that adoption might impact the visitation schedule between the parties. Therefore, the trial court ruling was not based on untenable grounds or reasons, and we hold that it did not abuse its discretion in allowing this testimony.

C. CHALLENGES TO FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Standard of Review

¶ 52 Findings of fact and conclusions of law are required "[i]n connection with all final decisions in adoption, custody, and divorce proceedings, whether heard ex parte or not." CR 52(a)(2)(B). When the trial court acts as a fact-finder, our review is " 'limited to whether substantial evidence supports the trial court's findings and whether the findings support its conclusions of law.' " In re Adoption of S.H. , 169 Wash. App. 85, 101, 279 P.3d 474 (2012) (internal quotation marks omitted) (quoting Commonwealth Real Estate Servs. v. Padilla , 149 Wash. App. 757, 762, 205 P.3d 937 (2009) ). "Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Ridgeview Properties v. Starbuck , 96 Wash.2d 716, 719, 638 P.2d 1231 (1982). The trial court's unchallenged findings of fact are verities on appeal. In re Dependency of J.A.F. , 168 Wash. App. 653, 670-71, 278 P.3d 673 (2012). We review a trial court's conclusions of law de novo by determining if the findings of fact support the conclusions of law. Casterline v. Roberts , 168 Wash. App. 376, 381, 284 P.3d 743 (2012).

2. Challenged Finding of Fact

¶ 53 The Miniums appear to challenge finding of fact 10, which states, "[d]ue to this antipathy and history of conduct, this court finds that if the proposed adoption were granted, visitation with the SHMILENKOs would be diminished or stopped entirely and the status quo that is so critical to the child's development would be upset." CP at 482. The Miniums argue that this finding was not supported by substantial evidence because the trial court also found that there were no missed visits under the 2010 and 2014 non-parental custody orders.

¶ 54 The Miniums are correct that the evidence at trial did not show any missed visits under the 2010 and 2014 orders. However, as discussed above, there was evidence in sufficient quantum to support the trial court's finding of a history of antipathy between the parties. The evidence showed that Linda had falsely accused Patti of drug use, and told other witnesses that Patti was manipulative, controlling, and unable to properly care for M.J.W. Pannell observed that during exchanges of M.J.W., the Miniums refused to smile at, look at, or speak to Patti. Greg testified that Patti was an " 'evil woman,' " while Linda claimed that Patti was "manipulative, knows no bounds, is domineering, condescending, disrespectful and harmful." CP at 481. Moreover, Greg admitted that he had tried to have the 2010 residential scheduled order "thrown out of court." 1 VRP (June 6, 2017) at 135. Thus, there was evidence in sufficient quantum to support the trial court's finding that the Miniums and Patti had a history of antipathy and that if the Miniums became M.J.W.'s adoptive parents, they might try to diminish or stop Patti's visitation with M.J.W.

3. Challenged Conclusions of Law

a. Adoption automatically terminates third party visitation

¶ 55 The Miniums claim that the trial court concluded "that an adoption decree automatically terminates a third-party visitation order," and they challenge that conclusion. Br. of Appellant at 1. However, the trial court never concluded that an adoption decree would automatically terminate the third party visitation orders. The trial court's first conclusion of law was, "Adoption of the child will terminate and divest everyone except the adoptive parents of legal rights to the child per RCW 26.33.260." CP at 482. This conclusion was an accurate recitation of RCW 26.33.260(1), which states that "[t]he entry of a decree of adoption divests any parent or alleged father who is not married to the adoptive parent or who has not joined in the petition for adoption of all legal rights and obligations." Thus, we hold that the Miniums' challenge fails.

b. Adoption not in M.J.W.'s best interest

¶ 56 The Miniums challenge the trial court's conclusion that adoption was not in M.J.W.'s best interests. However, this conclusion was supported by the trial court's unchallenged findings that (1) M.J.W. was "thriving under the 2014 Residential Schedule," (2) "[t]he status quo is optimal for the child and, therefore, protection of the status quo is in the child's best interest," (3) "[t]he 2014 residential schedule protects the child from instability and from being placed in a loyalty bind between the parties," (4) that "[b]estowal of the titles 'adopted' and 'legal parent' would have no positive emotional or developmental effect on [M.J.W.]," and (5) that "[M.J.W.] should continue to be parented in the future under the 2014 residential schedule." CP at 481-82. Therefore, we hold that the Miniums' challenge to this conclusion of law fails.

CONCLUSION

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

We concur:

Worswick, J.

Sutton, J.

      Because multiple persons in this case share the last name Shmilenko, we refer to them individually by their first names and collectively as the Shmilenkos. We mean no disrespect.

      Because multiple persons in this case share the last name Minium, we refer to them individually by their first name and collectively as the Miniums. We mean no disrespect.

      Kimberly French, M.J.W.'s preschool teacher; Karen Roggenkamp, a longtime friend of the Miniums; Emily Schloss, the Miniums' adult daughter; Blaine Tolby, M.J.W.'s pediatrician; Trisha West, M.J.W.'s kindergarten teacher; Keith Lawrence, who conducted an adoption placement report in this case; John, Patti's husband; Emily Anderson, Patti's niece-in-law; Leah Brown, Patti's former stepdaughter; Landon Poppleton, a psychologist; Chelsea Baldwin, one of Patti's former attorneys; Barbara Kivela, Patti's sister; Stacy Tucker, whose half-sister's father was once married to Patti; and Christen Carson, a clinical and forensic psychologist, also testified at trial.

      Patti claims that the Miniums challenge her standing to intervene under chapter 26.33 RCW for the first time on appeal. But the record shows that the Miniums challenged Patti's standing to intervene below and based their response on the adoption policy inherent in chapter 26.33 RCW. Thus, we find that the Miniums did not waive their assignment of error by failing to assert it below.

      The Miniums' briefing challenges Patti's "right to participate" in the adoption proceeding, but the arguments do not differentiate between intervention as a matter of right and permissive intervention. Br. of Appellant at 17. The arguments that are made in the briefing, however, are focused on an intervention as a matter of right.

      RCW 26.33.140(2) provides that "[a]ny person who is legally competent and who is eighteen years of age or older may be an adoptive parent."

      And even if the entry of an adoption decree did not automatically terminate Patti's visitation rights, the Miniums could have easily petitioned for modification of the 2014 residential schedule once they obtained the legal status of parents of M.J.W. See RCW 26.10.190.

      Even if the trial court had abused its discretion, any error was harmless. An error is harmless if it does not affect the outcome of the case. Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc. , 178 Wash. App. 702, 729, 315 P.3d 1143 (2013), review denied , 180 Wash.2d 1011, 325 P.3d 914 (2014). "[I]mproper admission of evidence constitutes harmless error if the evidence is cumulative or of only minor significance in reference to the evidence as a whole." Hoskins v. Reich , 142 Wash. App. 557, 570, 174 P.3d 1250, review denied , 164 Wash.2d 1014, 195 P.3d 88 (2008).
      Here, even without Dillman's and Pannell's testimony, the trial court could easily have concluded that the Miniums might seek to limit Patti's visitation following an adoption. The animosity between the Miniums and Patti was readily evident throughout the course of trial. Linda testified that Patti was "manipulative, knows no bounds, is domineering, condescending, disrespectful and harmful." CP at 481. Greg testified that Patti was "an 'evil woman,' " and admitted that he tried to have the 2010 residential schedule order "thrown out of court." CP at 481; 1 VRP (June 6, 2017) at 135. Greg also admitted that he would abide by the 2014 residential schedule " 'with a grudge.' " CP at 482. Thus, even without Dillman's and Pannell's testimony, the trial court could conclude that the Miniums might limit Patti's visitation with M.J.W. following adoption based on the open hostility displayed by the Miniums, which was only bolstered by Dillman's and Pannell's testimony. Therefore, even if the trial court erred in allowing Dillman's and Pannell's testimony, any error was harmless.

      The Miniums also assign error to the trial court's order staying the adoption proceedings until Patti's motion to intervene could be heard. Because the Miniums provide no argument to this assignment of error, we decline to consider challenge. See RAP 10.3(a)(6). Also, the order temporarily staying the adoption proceedings is moot given that the trial court already lifted the stay. See State v. Gentry , 125 Wash.2d 570, 616, 888 P.2d 1105, cert. denied , 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995) (an issue is moot if this court can no longer provide effective relief).


author: FOX, Justice.

text:
    Larry GIBSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0253
    Supreme Court of Wyoming.
    April 12, 2019
    Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel.
    Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Katherine A. Adams , Assistant Attorney General.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

      An Order Allowing Withdrawal of Counsel was entered on April 9, 2019.

   FOX, Justice.

[¶1] Larry Gibson was convicted of one count of possession with intent to deliver marijuana. He appeals his conviction, arguing the evidence against him should have been suppressed because it was obtained in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution. We affirm.

ISSUE

[¶2] Did the district court err in denying Mr. Gibson's motion to suppress evidence?

FACTS

[¶3] While patrolling Interstate 80, Trooper Jeramy Pittsley stopped a pickup truck towing a horse trailer because he did not see any registration displayed on the vehicle. When Trooper Pittsley told Mr. Gibson why he had pulled him over, Mr. Gibson stated it was "over there" and pointed to a piece of paper taped to the passenger-side windshield of the truck. Trooper Pittsley noticed that Mr. Gibson was "excessively nervous" and that his hands were shaking as he handed over his driver's license and insurance. Trooper Pittsley asked Mr. Gibson to exit the vehicle, retrieve the piece of paper from the windshield, and accompany him to his patrol car.

[¶4] In the patrol car, Trooper Pittsley began entering Mr. Gibson's information and asked dispatch to check the vehicle's VIN number and Mr. Gibson's criminal history. He also contacted his shift partner, Trooper Daren Mrsny, and asked him to assist with the stop. Trooper Pittsley asked Mr. Gibson about his travel plans. Mr. Gibson responded that he was traveling from Redding, California to Muscle Shoals, Alabama. Trooper Pittsley again noticed that Mr. Gibson seemed "excessively nervous," saying that he could "see his heart beating through his chest," that he was wiping his hands on his pants, and that his hands were shaking. He found this unusual because he had already informed Mr. Gibson that he would receive a warning "if everything checked out."

[¶5] Trooper Pittsley testified that it typically takes him eight to fifteen minutes to issue a warning citation but that this stop was out of the ordinary because Mr. Gibson "had some registration issues." Trooper Pittsley had difficulty reading the piece of paper Mr. Gibson had retrieved from the windshield because "[t]he print was pretty faded on it and out of alignment." He also noticed that the paper did not have an expiration date and "[u]nder ownership it stated it was owned by a Ray McGarver." Mr. Gibson told him Ray McGarver was the owner of the car dealership where he had purchased the truck. Trooper Pittsley and Mr. Gibson went back to the truck to attempt to locate any additional paperwork, such as a bill of sale, and Mr. Gibson attempted to call the dealership. Approximately 15 minutes into the stop, Trooper Pittsley contacted dispatch and asked whether it had any results on the information he had asked it to run. Trooper Mrsny arrived at roughly the same time, and dispatch still had not provided Trooper Pittsley with the information. Trooper Pittsley asked Trooper Mrsny to continue filling out the citation while he "did a free air sniff with [his] canine." The dog alerted to the front right-side area of the trailer about 17 minutes after Trooper Pittsley had initiated the traffic stop. Trooper Pittsley searched the trailer and found several vacuum-sealed packages of marijuana weighing, in total, approximately 197 pounds.

[¶6] The State charged Mr. Gibson with one count of possession with intent to deliver marijuana, one count of felony possession of marijuana, and one count of "No Valid Registration." Mr. Gibson moved to suppress the marijuana, arguing the search was unreasonable under the United States and Wyoming Constitutions. The district court denied the motion, concluding that the initial traffic stop was justified and that the dog sniff to the exterior of the vehicle did not unreasonably extend the scope of the stop. The State agreed to dismiss two of the counts against Mr. Gibson and cap its sentencing recommendation at five to ten years in exchange for a guilty plea to the possession with intent to deliver charge. Mr. Gibson entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The district court imposed a sentence of five to ten years imprisonment, suspended on condition that Mr. Gibson complete three years of supervised probation. Mr. Gibson timely appealed his judgment and sentence to this Court.

STANDARD OF REVIEW

[¶7] When reviewing a denial of a motion to suppress evidence, we defer to the district court's factual findings unless they are clearly erroneous. Kennison v. State , 2018 WY 46, ¶ 11, 417 P.3d 146, 149 (Wyo. 2018) (citation omitted). We view the evidence in the light most favorable to the district court's decision. Id. Whether a search or seizure was done in violation of the defendant's constitutional rights is a question of law we review de novo. Id.

DISCUSSION

[¶8] The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. "A traffic stop for a suspected violation of law is a 'seizure' of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment." Kennison , 2018 WY 46, ¶ 13, 417 P.3d at 149 (quoting Allgier v. State , 2015 WY 137, ¶ 14, 358 P.3d 1271, 1276 (Wyo. 2015) ). We use the two-part inquiry from Terry v. Ohio , 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), to determine whether a traffic stop was reasonable. Kennison , 2018 WY 46, ¶ 13, 417 P.3d at 150. First, we determine whether the initial stop was justified; second, we determine whether the officer's actions during the stop were "reasonably related in scope to the circumstances that justified the interference in the first instance." Wallace v. State , 2009 WY 152, ¶ 12, 221 P.3d 967, 970 (Wyo. 2009) (quoting Damato v. State , 2003 WY 13, ¶ 9, 64 P.3d 700, 705 (Wyo. 2003) ).

[¶9] Mr. Gibson concedes "it would not be a successful argument to say that the initial stop was not justified" under the Fourth Amendment. We agree. The record supports the district court's finding that Trooper Pittsley observed a violation of Wyoming law, a lack of visible registration. Clay v. State , 2016 WY 55, ¶ 18, 372 P.3d 195, 198 (Wyo. 2016) (finding the initial stop of a vehicle justified under the Fourth Amendment because the defendant "was in violation of Wyoming law requiring license plates or a valid registration to be displayed and plainly visible on a vehicle") (citing Wyo. Stat. Ann. § 31-2-205(a)(i) (LexisNexis 2015) ).

[¶10] Mr. Gibson also concedes that Trooper Pittsley's actions during the stop did not violate the Fourth Amendment, given the length of the stop and the "unfinished nature" of the citation. Again, we agree.

During a routine traffic stop, a law enforcement officer may request a driver's license, proof of insurance and vehicle registration, run a computer check, and issue a citation. Generally, the driver must be allowed to proceed on his way without further delay once the officer determines the driver has a valid driver's license and is entitled to operate the vehicle.

Harris v. State , 2018 WY 14, ¶ 17, 409 P.3d 1251, 1254 (Wyo. 2018) (quoting Garvin v. State , 2007 WY 190, ¶ 14, 172 P.3d 725, 729 (Wyo. 2007) ). We do not impose an arbitrary time limit to determine the permissible length of a traffic stop. Harris , 2018 WY 14, ¶ 17, 409 P.3d at 1254 (citing Lindsay v. State , 2005 WY 34, ¶ 19, 108 P.3d 852, 857 (Wyo. 2005) ). "Instead, we examine whether law enforcement diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly and without undue delay in detaining a defendant." Harris , 2018 WY 14, ¶ 17, 409 P.3d at 1254. Here, Trooper Pittsley immediately began entering Mr. Gibson's information and asked dispatch to run appropriate checks. He diligently attempted to verify Mr. Gibson's registration, and he had still not completed the warning citation when Trooper Mrsny arrived. Trooper Mrsny continued filling out the citation while the dog did a "free-air sniff." So long as use of a dog does not extend a traffic stop's length, a sniff to the exterior of a vehicle, "even in the complete absence of reasonable suspicion," does not violate the Fourth Amendment because it does not amount to a search. Wallace , 2009 WY 152, ¶ 15, 221 P.3d at 970-71 ; Illinois v. Caballes , 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005). Under these circumstances, Trooper Pittsley's actions were reasonable under the Fourth Amendment.

[¶11] Nevertheless, Mr. Gibson argues the district court erred in denying his motion to suppress. He asserts the stop's "air of pretext" should cause us to reevaluate whether a dog sniff to the exterior of a vehicle requires "a tighter legal framework" under the Wyoming Constitution than the U.S. Constitution. The State counters that Mr. Gibson waived argument under the Wyoming Constitution because he did not properly preserve the claim in the district court and, alternatively, that he failed to present cogent argument under the Wyoming Constitution on appeal.

[¶12] "Our state constitution provides protection of individual rights separate and independent from the protection afforded by the U.S. Constitution." O'Boyle v. State , 2005 WY 83, ¶ 23, 117 P.3d 401, 408 (Wyo. 2005). Although similarly worded, we have held that Article 1, Section 4 of the Wyoming Constitution provides greater protections than the Fourth Amendment in certain circumstances. Id. at ¶ 30, 117 P.3d at 410 ("[A] narrower standard, one maintaining the requirement that a search be reasonable under all of the circumstances, [is] more consistent with the historical intent of our search and seizure provision ... than the federal provision.") (citing Vasquez v. State , 990 P.2d 476, 489 (Wyo. 1999) ); State v. Peterson , 27 Wyo. 185, 198, 194 P. 342, 345 (1920) (saying Article 1, Section 4 is stronger than its federal counterpart because it requires search warrants to be supported by written affidavits).

[¶13] However, we consistently decline to decide cases under the Wyoming Constitution that are not supported by cogent argument in the lower court or on appeal. General citation to the Wyoming Constitution does not suffice to preserve a state constitutional argument for appeal, Phippen v. State , 2013 WY 30, ¶ 12, 297 P.3d 104, 108 (Wyo. 2013), nor does citation to cases decided under the Wyoming Constitution without argument concerning how they apply to the case under consideration. See Harvey v. State, Dep't of Transp. , 2011 WY 72, ¶ 8, 250 P.3d 167, 171 (Wyo. 2011) (refusing to conduct separate analysis under the Wyoming Constitution where the appellant did not argue that it provided greater protection under the circumstances of the case). In any event, we have previously held that an "officer's primary motivation" is irrelevant under Article 1, Section 4 so long as an observed traffic violation justifies the stop. Fertig v. State , 2006 WY 148, ¶ 28, 146 P.3d 492, 501 (Wyo. 2006). Mr. Gibson offers no cogent argument for departing from that precedent; thus, we decline to consider it. Farrow v. State , 2019 WY 30, ¶ 74, 437 P.3d 809, 828 (Wyo. 2019).

[¶14] Affirmed.