Abdimalik Hassan v. Nasro Abubakar
73615-9
| Wash. Ct. App. | Dec 27, 2016Background
- Hassan and Abubakar divorced in 2012; the final parenting plan awarded primary custody of their eight children to Abubakar and restricted Hassan's visitation for alleged domestic violence.
- In Sept. 2013 CPS/DSHS opened dependency proceedings after an allegation that Abubakar’s adult son raped one child; DSHS removed the children and placed them with Hassan.
- Hassan filed a petition to modify the parenting plan (seeking primary custody); dependency petitions were filed in juvenile court and Abubakar was appointed counsel there. The family- and juvenile-court matters proceeded in parallel.
- The modification trial occurred in Feb. 2015 (after continuances to allow dependency resolution); trial witnesses included DSHS social workers and the dependency GAL. Abubakar appeared pro se at the modification trial.
- The trial court found DSHS and GAL testimony credible, cited founded findings of neglect/physical abuse against Abubakar, expressed concern about Abubakar’s mental health and resistance to services, and awarded primary custody of the younger five children to Hassan (older two could choose). The court also entered child support orders.
- Abubakar moved for a new trial and appealed, arguing (1) she was entitled to appointed counsel in the modification because of the dependency link and on constitutional grounds, (2) the court erred in modifying custody, and (3) the child support order was incorrect.
Issues
| Issue | Plaintiff's Argument (Abubakar) | Defendant's Argument (Hassan / Court) | Held |
|---|---|---|---|
| Right to appointed counsel in modification | Modification was "inextricably linked" to dependency so RCW 13.34.090 right to counsel should apply; alternatively, due process required counsel because of significant parental rights loss | No concurrent-jurisdiction order appears; dependency dismissal by DSHS does not make the family-court trial a dependency proceeding; modification governed by chapter 26.09, which does not grant automatic counsel; King controls constitutional claim | Court: No statutory or constitutional right to appointed counsel in the modification; issue not preserved fully but addressed and rejected |
| Whether court abused discretion in modifying parenting plan | The children’s present environment was not so detrimental to justify major change; evidence conflicted and some adverse items were stale by trial | Credible DSHS/GAL testimony, founded findings of neglect/abuse, concerns about mother’s mental health and refusal of services supported a finding that current environment was detrimental and that change was in children’s best interest | Court: Modification affirmed; findings supported by substantial evidence |
| Whether change in circumstances was current/substantial (timeliness) | Conditions underlying removal and temporary change had passed; long gap requires focus on current circumstances so modification was not warranted | Trial court considered both parents’ current situations (Ambrose) and found father provided stable home and mother resistant to services | Court: Proper to consider both parents; evidence supported substantial change in circumstances |
| Child support order challenge | (Raised but not argued on appeal) | Court entered specific monthly amounts based on custodial allocation | Court: Issue waived for lack of appellate argument |
Key Cases Cited
- Town of Woodway v. Snohomish County, 180 Wn.2d 165 (2014) (standard of review for questions of law)
- In re Dependency of E.H., 158 Wn. App. 757 (2010) (concurrent jurisdiction can trigger RCW 13.34.090 right to counsel where order appears in record)
- King v. King, 162 Wn.2d 378 (2007) (distinguishing termination proceedings from parenting-plan modification for parental liberty interest)
- In re Luscier's Welfare, 84 Wn.2d 135 (1974) (dependency/terminations jurisprudence referenced)
- In re Mvricks' Welfare, 85 Wn.2d 252 (1975) (dependency/terminations jurisprudence referenced)
- In re Marriage of Chandola, 180 Wn.2d 632 (2014) (standard: abuse of discretion in custody modifications)
- In re Marriage of Littlefield, 133 Wn.2d 39 (1997) (limits on appellate reversal for abuse of discretion)
- Bering v. Share, 106 Wn.2d 212 (1986) (definition of substantial evidence)
- In re Marriage of McDole, 122 Wn.2d 604 (1993) (presumption favoring custodial continuity)
- Ambrose v. Ambrose, 67 Wn. App. 103 (1992) (focus on current environment when significant delay exists between temporary and final orders)
- Brown v. Vail, 169 Wn.2d 318 (2010) (failure to brief an appellate argument waives the issue)