      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Parenting
and Support of:                                 DIVISION ONE

                                                                                O
Daniel Rainbow                                  No. 74018-1-                    O



NATHAN BRASFIELD,
                                                UNPUBLISHED OPINION
                    Appellant,
                                                                                    en
              and                                                                   co




LAUREN ELIZABETH RAINBOW,

                     Respondent.                FILED: October 17, 2016


       Dwyer, J. — Nathan Brasfield appeals four trial court orders: an order

modifying the parenting plan between Brasfield and Lauren Rainbow, an order
entering a permanent parenting plan, an order granting an extension of
Rainbow's existing order of protection against Brasfield, and an orderdenying
Brasfield's motion for partial summary judgment on the matter of attorney fees.

Finding no error, we affirm.



       Brasfield and Rainbow met in 2008, began living together in 2009, and

were separated by June 2010. The parties have one child together, Daniel
Rainbow (Danny). After they separated, Brasfield and Rainbow orally agreed to
a parenting plan that provided Brasfield with shared parental responsibility over
No. 74018-1-1/2



Danny. The oral agreement did not require either party to pay child support to

the other and, in exchange, Rainbow was given exclusive use of a car jointly

owned by the parties. In May 2012, Rainbow obtained a court order for child

support. In June of that year the parties agreed to a formal, temporary parenting

plan that provided Brasfield with shared parental responsibility over Danny.

       In April 2014, Rainbow cooperated in an FBI investigation of Brasfield that

ultimately led to his arrest on April 22, 2014. Shortly after Brasfield's arrest, and

at least partially in response to Brasfield's conduct upon learning of her

cooperation with the FBI, Rainbow filed a pro se petition seeking a domestic

violence protection order (DVPO). The DVPO was entered on June 3, 2014.

Rainbow also petitioned for a modification to the parenting plan, seeking to

eliminate the rights to visitation and decision-making previously afforded to

Brasfield. Brasfield, represented by counsel, voluntarily agreed to the entry of

the June 3 DVPO, but later moved for summary judgment seeking a

determination that the incidents supporting issuance of the DVPO did not

constitute domestic violence as a matter of law. The motion, including a request

for an award of attorney fees, was denied.

       In December 2014, the trial court appointed a guardian ad litem (GAL) to

represent Danny's interests and investigate specific issues for trial. On March
31, 2015, Brasfield entered a federal court guilty plea to being a felon in

possession of a firearm and was sentenced to 48 months in prison.
No. 74018-1-1/3



       In May 2015, Rainbow filed a petition seeking renewal of the June 2014

DVPO. In anticipation of trial, the court consolidated the petition to renew the

DVPO with the petition to enter a permanent parenting plan.

       During trial, the court heard extensive testimony over five days. Rainbow,

Brasfield, Brasfield's parents, the GAL, and various lay witnesses all testified, as

did Rainbow's expert witness, Danny's therapist Jenna Genzale.

       After trial, the court entered a number of factual findings and legal

conclusions, ruling that parenting restrictions pursuant to RCW 26.09.1911 were
appropriate. In reaching this conclusion, the court considered—but ultimately
rejected—suggestions made by the GAL, including the GAL's opinion that
Brasfield's parents were appropriate supervisors for Danny and that Danny would
benefit from visitation with his father during Brasfield's incarceration. The

permanent parenting plan entered by the court provides Brasfield no visitation
with Danny during his incarceration, and provides for professionally supervised
visits following his release. The trial court also entered an order renewing the
DVPO, with an expiration date of September 1, 2020. Brasfield appeals.
                                                II


       Brasfield challenges the trial court's admission of certain testimony and

exhibits.

       We review a trial court's admission of evidence for abuse of discretion.

State v. Maqers, 164Wn.2d174, 181, 189P.3d 126(2008). An error in the



         1RCW 26.09.191(1) and (2) requires the trial court to limit mutual decision-making and
residential time if a parent has engaged in domestic violence. Subsection (3) permits the court to
limit any provision ofthe parenting plan if it is in the child's best interests.
No. 74018-1-1/4



admission of evidence requires reversal when the error is prejudicial. Carnation

Co. v. Hill. 115Wn.2d184, 186, 796 P.2d 416 (1990). An error is prejudicial if it

has a substantial likelihood of affecting the outcome of the case. Hill, 115 Wn.2d

at 186.

          However, "[ejrror may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected, and ... a

timely objection or motion to strike is made, stating the specific ground of

objection." ER 103(a)(1). We may decline to review claims of errorwhich were

not raised in the trial court. RAP 2.5(a).

                                             A


          Brasfield first asserts that the trial court erred by admitting the expert

testimony of Genzale, a therapist Danny had seen prior to trial. The trial court
erred, Brasfield contends, because the judge never determined that Genzale was
qualified to testify as an expert and because Genzale's testimony was
inadequate given that she had never met Brasfield and never visited the prison in
which he was incarcerated.

          "If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise." ER 702. "The facts ordata
in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing." ER
703. In determining whether expert testimony is admissible, trial courts are



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afforded broad discretion and rulings admitting or excluding such testimony will

not be disturbed on appeal absent an abuse of such discretion. In re Marriage of

Katare, 175 Wn.2d 23, 38, 283 P.3d 546 (2012). If the basis for admission of the

evidence is "'fairly debatable,'" we will not disturb the trial court's ruling. Grp.

Health Coop, of Puget Sound. Inc. v. Dep't of Revenue, 106 Wn.2d 391, 398,

722 P.2d 787 (1986) (quoting Walker v. Bangs. 92 Wn.2d 854, 858, 601 P.2d

1279(1979)).

       At trial, before offering opinion testimony, Genzale testified to her

qualifications and education. Brasfield then objected to the admission of
Genzale's expert testimony on the ground that he had not received a summary of
her testimony prior to trial. This objection was overruled after the court
determined that Brasfield received a witness list identifying Genzale as an expert

witness and that Brasfield never requested a summary of her opinions. Genzale

then testified that she had diagnosed Danny with generalized anxiety disorder
and that it was her opinion that Danny might be harmed by visits to a prison.
Brasfield never objected to Genzale's qualifications to testify as an expert
regarding a diagnosis of generalized anxiety disorder. Nor did Brasfield object
on the basis that Genzale's testimony was factually premised on a basis not

authorized by ER 703.

        On appeal, Brasfield asserts that the trial court erred by never ruling that
Genzale was qualified to testify as an expert. This assertion is without merit.
 Brasfield did not object to Genzale's qualifications at trial and, consequently, the
No. 74018-1-1/6



trial court was never called upon to rule that she was qualified to testify as an

expert.

          Brasfield also asserts that Genzale's diagnosis and her opinion that it

would not be in Danny's best interests to visit his father in prison were based on

insufficient facts. This is so, he contends, because Genzale had never met

Brasfield and had never seen the visitation room in the prison where Brasfield is

incarcerated.

          Brasfield did not object on this basis at trial. Therefore, we need not

entertain his objection on appeal. Brown v. Labor Ready Nw.. Inc.. 113 Wn. App.

643, 655, 54 P.3d 166 (2002). However, even ifwe did, Brasfield would not

prevail on the merits. Genzale testified that she diagnosed Danny with
generalized anxiety disorder based on 10 to 12 one-hour sessions with him,
providing her with sufficient information on which to base her diagnosis.
Brasfield's present assertions go only to the weight to be given to Genzale's
testimony, not to its admissibility. The trial court was free to credit Genzale's

testimony.

                                            B


          Brasfield next asserts that the trial court erred by relying on hearsay

evidence in rendering its findings of fact.

          "A trial court's determination that a hearsay exception applies is judged on

an abuse of discretion standard." Magers, 164 Wn.2d at 187. An error in the

admission of evidence requires reversal when the error is prejudicial. Hi]!, 115
No. 74018-1-1/7



Wn.2d at 186. An error is prejudicial if it has a substantial likelihood of affecting

the outcome of the case. Hill- 115 Wn.2d at 186.

       A GAL may properly rely on hearsay evidence when making a

recommendation to the court. In re Guardianship of Stamm. 121 Wn. App. 830,

837, 91 P.3d 126 (2004). However, "[t]he GAL's testimony must not be used as

a vehicle to present and reiterate otherwise inadmissible hearsay." Stamm. 121

Wn. App. at 838.

       Brasfield assigns error to the trial court's factual findings that there were

firearms in Brasfield's house that were "unlocked and/or otherwise [unsecured

from Danny" and "loaded guns in a duffle bag on the floor." The first of these

findings—that there were firearms in Brasfield's house that could have been

accessible to Danny—was based on the testimony of Brasfield's father. The

context of the trial court's opinion, however, makes it clear that the court was not

considering opinions expressed by Brasfield's parents for the truth ofthe matter
asserted but, rather, was opining on the suitability of Brasfield's parents as

potential supervisors for Danny. The trial court noted that Brasfield's father was
"surprised" when he learned that his son had firearms in an unlocked closet, but
that he still "does not believe Nate was reckless with Danny's safety." The trial

court found that Brasfield's mother displayed a similar disregard for Danny's

safety, noting that she was "unwilling to accept the undisputed facts about her
son and the dangerous situations to which Danny was persistently exposed."
The trial court found particularly troubling Brasfield's mother's testimony that she

refused to reveal to Rainbow where Brasfield was living because she did not



                                              -7-
No. 74018-1-1/8



want to break her word to her son—testimony that showed that she is "willing to

put her 'word' to her son above the safety and well-being of Danny." The

testimony of Brasfield's parents formed part of the court's determination that they

were unsuitable supervisors and was not inadmissible evidence when considered

for that purpose.

        With regard to the trial court's finding that the FBI located "loaded guns in

a duffle bag on the floor," however, the trial court did consider inadmissible

hearsay evidence. As an initial matter, this finding is not supported by the record
before us. Rather, the finding is supported by the FBI report and the GAL report,

neither of which were admitted at trial for the truth of the statements therein.2

The FBI report identified various guns and drug paraphernalia discovered in
Brasfield's home. The GAL report contained hearsay statements regarding what

the FBI found in Brasfield's home. Thus, although the trial court did not admit

either report for the truth of the matters stated therein, its findings relied on those
reports for that purpose.

        Nevertheless, there is no possibility that this error affected the outcome of
the case. Substantial evidence supports the trial court's other factual findings

and the facts found amply support the court's conclusions.

                                                Ill


         Brasfield next contends that the trial court abused its discretion by

concluding that RCW 26.09.191 restrictions in the permanent parenting plan



         2The trial courtadmitted the FBI report into evidence to show Rainbow's motive for
 seeking a DVPO and parenting plan, not for the truth of the matters asserted therein.

                                                      -8-
No. 74018-1-1/9



were appropriate. This is so, he asserts, because the trial court's finding of

domestic violence, warranting the restrictions in the parenting plan, was not

supported by substantial evidence.

       We review a trial court's ruling entering a parenting plan for abuse of

discretion. In re Marriage of Kovacs. 121 Wn.2d 795, 801, 854 P.2d 629 (1993).

A court abuses its discretion if its decision is manifestly unreasonable or based

on untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-

47, 940 P.2d 1362 (1997). A decision is manifestly unreasonable "if it is outside

the range of acceptable choices, given the facts and the applicable legal

standard; it is based on untenable grounds if the factual findings are unsupported

by the record; it is based on untenable reasons if it is based on an incorrect

standard or the facts do not meet the requirements of the correct standard."

Littlefield, 133 Wn.2d at 47. We do not review the trial court's credibility

determinations or weigh conflicting evidence. In re Marriage of Rich. 80 Wn.

App. 252, 259, 907 P.2d 1234 (1996). "Findings offact supported by substantial
evidence, i.e., evidence sufficient to persuade a rational person of the truth of the

premise, will not be disturbed on appeal." State ex rel. J.V.G. v. Van Guilder.
137 Wn. App. 417, 423, 154 P.3d 243 (2007).

                                          A

       Brasfield asserts that substantial evidence did not support the trial court's

conclusion that Brasfield's actions toward Rainbow constituted domestic

violence, as defined by statute.
No. 74018-1-1/10



       "Substantial evidence exists so long as a rational trier of fact could find the

necessary facts were shown by a preponderance of the evidence." In re Welfare

ofA.W.. 182 Wn.2d 689, 711, 344 P.3d 1186 (2015). "The fact that the evidence

may be subject to different interpretations does not authorize this court to

substitute its findings for those of the trial court." Peter L. Redburn. Inc. v. Alaska

Airlines. Inc., 20 Wn. App. 315, 318, 579 P.2d 1354 (1978).

        In adopting a parenting plan, the trial court must consider a variety of

applicable provisions in the Parenting Act, including RCW 26.09.191, which sets

forth a number of limiting factors that require or permit restrictions of a parent's

actions or involvement with a child. Littlefield. 133 Wn.2d at 52. "[T]he court may

not impose limitations or restrictions in a parenting plan in the absence of
express findings under RCW 26.09.191." In re Marriage of Katare. 125Wn. App.
813, 826, 105 P.3d 44 (2004). "Mere accusations, without proof, are not

sufficient to invoke the restrictions under the statute." In re Marriage of Caven,

136 Wn.2d 800, 809, 966 P.2d 1247 (1998).3

        Pursuant to RCW 26.09.191(1) and (2), a trial court is required to limit a

parent's residential time with the children if that parent has engaged in certain
conduct, including having "a history of acts of domestic violence as defined in

RCW 26.50.010(1)."

        Domestic violence is defined as:

        (a) Physical harm, bodily injury, assault, or the infliction offear of
        imminent physical harm, bodily injury or assault, between family or

         3Brasfield wrongly contends thatsuch restrictions must be reviewed pursuant to a strict
scrutiny analysis. To the contrary, a parenting plan that "complies with the statutory requirements
to promote the best interests of the children" does not violate either parent's constitutional rights.
Katare, 125Wn. App. at 823 (holding that a strict scrutiny analysis was notappropriate).

                                                     -10-
No. 74018-1-1/11



      household members; (b) sexual assault of one family or household
      member by another; or (c) stalking as defined in RCW 9A.46.110 of
      one family or household member by another family or household
      member.


RCW 26.50.010(1).

      Although "a history of acts of domestic violence" is not defined, the phrase

"was intended to exclude 'isolated, de minimus incidents which could technically

be defined as domestic violence.'" In re Marriage of C.M.C.. 87 Wn. App. 84, 88,

940 P.2d 669 (1997) (quoting 1987 Proposed Parenting Act, Replacing the

Concept of Child Custody, Commentary and Text 29 (1987)), affd, 136 Wn.2d

800, 966P.2d 1247(1998).

       At trial, both Rainbow and Brasfield testified as to their personal history

and experiences co-parenting Danny. In her testimony, Rainbow conceded that
Brasfield had never attempted or carried out any actual physical violence against

her or Danny.

       Rainbow did testify, however, to several incidences over the course of
their relationship that caused her to fear Brasfield. One such incident occurred
after a heated telephone call between Rainbow and Brasfield, in which Brasfield
demanded that Rainbow drop her demands for child support. Rainbow testified
that Brasfield threatened her and that she had called the police as a result,

stating, "Nate told me, quote, drop the child support or see what's coming to you.
Iresponded, are you threatening me? Nate responded, you figure that out, B-l-
T-C-H. Isaid, Nate you are not allowed to threaten me, I'm going to call the
 police." Later that night, Brasfield sent an individual to Rainbow's house to take



                                             -11-
No. 74018-1-1/12



away the car—and all of Rainbow's personal property inside the car—without

Rainbow's knowledge or permission.

       Later, Rainbow became aware of a Facebook posting in which Brasfield

had written, "[a]gain, it wasn't Laurens [sic] car. Her interest in it was void the

moment she failed to honor the agreement we had. Considering what she tried

to do, she's lucky that's all I did." (Emphasis added.)

       Rainbow also became aware of an e-mail from Brasfield to his mother.

This e-mail included the following statements:

   • "I can't parent Danny. I have way too much anger built up towards his
       mom, and I don't see it ever going away."

   • "If you decide to talk to Lauren, please tell her that Iwill not harm her. Tell
       her that I've thought about it many times, and every time Ithink about it, I
       have to decide if Danny's better off having a mom or a dad."

    • About his sister, Brasfield wrote: "She's betrayed my trust, sent Lauren a

       lot of stuff that was never meant for her to see, and quite possibly

       provided Lauren with the evidence she needed to get the FBI to raid my
       house. At this point, she's dead to me too."

    At trial, Rainbow, pro se, questioned Brasfield regarding the incident with the

car:



       Q: Do you recall a phone call in which we were discussing child
       support in which you told me to drop the child support, or Iwould
        see what was coming to me?
        A: I don't believe that was the language I used. But I remember
        talking to you about child support, demanding that you drop it, and
        telling you that if you didn't, that you'd need to return the car.
        Q: Okay. You do not recall saying, "see what's coming to you"?

                                              -12-
No. 74018-1-1/13



       A: No, I don't.
       Q: Okay. Do you remember me asking you if you were threatening
       me?

       A: Yeah, I do.
       Q: Do you remember what your response was?
       A: Yeah, I think my response was, "you figure it out".

       Throughout the trial, Rainbow testified to her growing and continuing fear

for her life based on her interactions with Brasfield, stating, "[m]y continued fear

of Nate, even though he's in prison at this time, is that he certainly would not

hesitate to send someone over to hurt me," and "I have tried very hard, and it has

resulted in threats, and retaliation, and . . . now I have a fear for my life when it

comes to Nate Brasfield."

       Rainbow was entitled to rely on her personal knowledge of Brasfield's

dangerous capabilities when she was confronted with threats and

demonstrations of force, including her knowledge of the reasons for his present

incarceration and previous felony convictions. Rainbow testified to multiple

incidences in which Brasfield lost his temper and destroyed his own and others'

personal property. Rainbow testified to multiple incidents in which Brasfield
endangered her life and the lives of others after losing his temper. Although
Brasfield often couched his threats in language indicating that he would not

follow through on them, Rainbow's own experiences with Brasfield reasonably
led her to fear otherwise.

       Rainbow testified to a continuous fear of imminent harm. That Brasfield

was able to send someone to Rainbow's house in the middle of the night,

immediately after threatening her, demonstrates his capacity to have third parties


                                              -13-
No. 74018-1-1/14



do his bidding. Thus, his incarceration did not negate the danger he posed. The

multiple, serious threats to Rainbow's safety, along with Brasfield's demonstrated

ability to carry out those threats from a remote location, inflicted on Rainbow a

continuous fear for her safety—consistent with the statutory language of

"infliction of fear of imminent physical harm, bodily injury or assault." RCW

26.50.010(1). Although Brasfield disagrees with the trial court's finding that

Rainbow's testimony regarding her fear was credible, we do not reweigh the

evidence on appeal. Substantial evidence supports the trial court's

determination. There was no abuse of discretion.4

                                                B


        Brasfield further contends that the trial court erred by concluding that

visitation at the prison, even if supervised by Brasfield's parents, would not be in
Danny's best interests. He asserts that the trial court abused its discretion by
relying on witness testimony that conflicted with the GAL's findings. But the trial
court is free to credit or not credit evidence as it sees fit. There was no error.

        The GAL's charge is to investigate the child and the family situation and

make recommendations.

        In effect, she acts as a neutral advisor to the court and, in this
        sense, is an expert in the status and dynamics of that family who
        can offer a commonsense impression to the court. But the court is
        also free to ignore the guardian ad litem's recommendations if they
        are not supported by other evidence or itfinds other testimony
        more convincing.


        4The restrictions in the parenting plan entered by the trial court were entered pursuant to
RCW 26.09.191(1), (2), and (3). Because substantial evidence exists supporting the trial court's
findings of domestic violence—and a finding of domestic violence is alone sufficient to impose
RCW 26.09.191 restrictions in a parenting plan—we need not reach the trial court's other bases
for imposing the restrictions.


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No. 74018-1-1/15



Fernando v. Nieswandt, 87 Wn. App. 103, 107, 940 P.2d 1380 (1997).

       The GAL made a number of findings and recommended to the court that

Danny be allowed to visit his father in the prison's visitation room under the

supervision of Brasfield's parents.

       The trial court found that visitation at the prison would be contrary to

Danny's best interests. In so concluding, the trial court credited testimony from

several individuals, including Genzale, Rainbow, and Danny's school principal,

Candace Mangum. The trial court also found, after hearing testimony from

Brasfield's parents, that Brasfield's parents were unsuitable supervisors for

Danny.

       Contrary to Brasfield's assertions, substantial evidence supports the trial

court's findings, including the grandparents' own testimony. Although the trial

court considered the findings and recommendations of the GAL, the court was

not bound by the GAL's recommendations or evaluation of the facts. Fernando,
87 Wn. App. at 107. While Brasfield may not agree with the trial court's
assessment of the evidence, substantial evidence exists to support these

findings and we will not reweigh the evidence on appeal.
                                          IV


                                          A


         Brasfield next argues that the DVPO extension entered by the trial court

must be vacated. This is so, he asserts, because the DVPO "mirrors" the

parenting plan restrictions and the existence ofa DVPO may not be the basis for
the terms of a parenting plan.



                                               -15-
No. 74018-1-1/16



       Although it is true that the issuance of a DVPO cannot serve as the basis

for restrictive terms in a parenting plan, In re Marriage of Stewart. 133 Wn. App.

545, 554, 137 P.3d 25 (2006), there is no evidence that the reissued DVPO

herein affected the restrictions imposed in the permanent parenting plan ordered

by the trial court.

       The trial court specifically acknowledged, in response to Brasfield's

objection, that a finding of domestic violence could not be predicated on the

existence of the DVPO. Indeed, the renewed DVPO here at issue incorporates

the restrictions found in the parenting plan, not the other way around. This is

unremarkable, given that the motions for modification of the parenting plan and

extension of the DVPO were consolidated for trial. There is no evidence to

support the assertion that the trial court relied on the existence ofthe DVPO to
support its finding ofdomestic violence as a basis for imposing RCW 26.09.191
parenting plan restrictions.

                                          B


        Brasfield also contends that the DVPO extension must be vacated

because it exceeds one year in duration. RCW 26.50.060(2) provides, "[i]f a
protection order restrains the respondent from contacting the respondent's minor
children the restraint shall be for a fixed period not to exceed one year."

        Although a one-year limitation applies to initial protection orders, no such
limitation applies to renewals of protection orders issued pursuant to chapter

26.50 RCW. The pertinent statute provides,

        If the court grants an order for a fixed time period, the petitioner
        may apply for renewal of the order byfiling a petition for renewal at


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No. 74018-1-1/17



       any time within the three months before the order expires. . . . The
       court shall grant the petition for renewal unless the respondent
       proves by a preponderance of the evidence that the respondent will
       not resume acts of domestic violence against the petitioner or the
       petitioner's children or family or household members when the
       order expires. The court may renew the protection order for another
       fixed time period or may enter a permanent order as provided in
       this section.


RCW 26.50.060(3) (emphasis added). It does not follow that a trial court is

permitted to enter a permanent order upon renewal, but not an order with a five-

year durational period.

       The DVPO in question was a renewal. The statute sets no durational

restrictions for renewals. The trial court did not err.

                                            V


       Brasfield contends that the consolidation of the parenting plan petition and

the DVPO petition into a single trial resulted in an unconstitutional denial of due

process.

       Brasfield did not object to consolidation of the hearings in the trial court.

Nevertheless, he contends that review is appropriate because the trial court's

decision to consolidate the hearings was a manifest error affecting a

constitutional right, excusing his failure to raise the issue at trial.

       RAP 2.5(a) provides that "[t]he appellate court may refuse to review any

claim of error which was not raised in the trial court. However, a party may raise

the following claimed errors for the first time in the appellate court: ... (3)
manifest error affecting a constitutional right." There are four steps in analyzing

an alleged constitutional error raised for the first time on appeal:




                                                -17-
No. 74018-1-1/18



      "First, the reviewing court must make a cursory determination as to
      whether the alleged error in fact suggests a constitutional issue.
      Second, the court must determine whether the alleged error is
      manifest. Essential to this determination is a plausible showing by
      the defendant that the asserted error had practical and identifiable
      consequences in the trial of the case. Third, if the court finds the
      alleged error to be manifest, then the court must address the merits
      of the constitutional issue. Finally, if the court determines that an
      error of constitutional import was committed, then, and only then,
      the court undertakes a harmless error analysis."

City of Seattle v. Heatlev. 70 Wn. App. 573, 585, 854 P.2d 658 (1993) (quoting

State v. Lynn. 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).

      In considering whether to issue a DVPO under chapter 26.50 RCW, courts

need not apply the rules of evidence. ER 1101(c)(4). However, under the

Parenting Act, courts must apply the rules of evidence when considering
restrictions in a parenting plan. RCW 26.09.191(6). Further, consolidation of a

hearing on a parenting plan with a hearing on a DVPO is expressly permitted
under RCW 26.50.025. Nevertheless, Brasfield contends that the trial court

relied on hearsay evidence in making its findings offact and, thus, consolidation
of the hearings was a manifest constitutional error that violated his right to due

process.

       Essential to a determination of manifest constitutional error, providing the

basis for review under RAP 2.5(a)(3), is a plausible showing by the claimant that

the error had practical and identifiable consequences in the trial of the case.
Heatlev. 70 Wn. App. at 585. It is not sufficient when raising a constitutional
issue for the first time on appeal to merely identify a constitutional issue. "The
appellant must first make a showing how, in the context of the trial, the alleged
error actually 'affected' the defendant's rights. Some reasonable showing of a

                                            -18-
No. 74018-1-1/19



likelihood of actual prejudice is what makes a 'manifest error affecting a

constitutional right.'" Lynn. 67 Wn. App. at 346 (quoting RAP 2.5(a)(3)).

      As discussed herein, although the trial court did consider some hearsay

evidence during trial, the admissible evidence credited by the court amply

supports the court's ruling. The consideration of some hearsay evidence did not

change the outcome of the trial and Brasfield has made no showing that the

consolidation of the hearings into a single trial had any practical and identifiable

consequences that affected the outcome. Thus, Brasfield has not shown a

manifest constitutional error that he may object to for the first time on appeal.

       But Brasfield's claim has yet another fatal failing. Three distinct factors

must be considered when reviewing a due process claim:

       First, the private interest that will be affected by the official action;
       second, the risk of an erroneous deprivation of such interest
       through the procedures used, and the probable value, if any, of
       additional or substitute procedural safeguards; and finally, the
       Government's interest, including the function involved and the fiscal
       and administrative burdens that the additional or substitute
       procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

       In asserting that an unconstitutional denial ofdue process resulted from
the consolidation of the hearings, Brasfield argues only the first of the three

Mathews factors: that Brasfield's interest in the care, custody, and control of

Danny is a fundamental liberty interest. Stanley v. Illinois. 405 U.S. 645, 651, 92
S. Ct. 1208, 31 L. Ed. 2d 551 (1972). However, Brasfield does not even attempt

to establish the remaining two factors, as required by Mathews. Rather, Brasfield
simply asserts that, because the court consolidated the hearings and then


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No. 74018-1-1/20



considered hearsay evidence, a denial of due process has necessarily resulted.

By failing to engage in a suitable analysis of the Mathews factors, Brasfield fails

to establish a due process claim.

                                            VI


       Finally, Brasfield requests an award of attorney fees pursuant to either
RCW 26.26.140, which authorizes an award of attorney fees to a prevailing party,

or RCW 26.09.260(13), which authorizes an award of attorney fees when a

motion to modify a parenting plan is found to be brought in bad faith. Because

we affirm the trial court's rulings, Brasfield's claim for relief fails.

       Affirmed.



                                                          ^ih
We concur:




  4^,/




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