                                                                                             FILED
                                                                                       COURT OF APPEALS
                                                                                           DIVISION II

                                                                                       2015 AUG I I     AM 9: 11

                                                                                       STATE OF WASHINGTON


    IN THE COURT OF APPEALS OF THE STATE                                               U'                      TON



                                                    DIVISION II


In the Matter of the Custody of                                                        No. 46888 -3 -II
A.C. and C. C.

ANGELA DAWN MIRANDA,


                               Appellant/Petitioner,


           V.



 CHRISTOPHER EUGENE CRUVER,                                                    UNPUBLISHED OPINION


                                         Respondent.




          SUTTON, J. —       Angela Miranda appeals the trial court' s order of a final parenting plan. She

argues    that the trial   court erred    by denying her motion to          continue   the trial.   We hold that the trial


court abused its discretion by denying Miranda' s motion to continue the trial, and we reverse,

vacate the trial court' s order of a final parenting plan, and remand this case to a different judge for

a new trial.'




  Miranda       also argues    that the trial     court abused    its discretion in ( 1)
                                                                          denying the parties' joint
motion to appoint a guardian ad litem for the children, (2) finding that she abused the children, (3)
failing   to   consider    future   risk of   harm to the   children, (   4) awarding primary residential placement
to the father, Christopher Cruver, and ( 5) deciding this case with bias against Miranda. Because
we remand for a new trial before a different judge, we do not address these additional claims of
error..
                                 r




No. 46888 -3 - II



                                                       FACTS


         Miranda      and   Christopher Cruver have two children, AC              and   CC.'    In early 2011, Cruver

moved    to   Arizona. Thomas Bishop        moved      into Miranda'   s   home    with   the   children   in 2011.   The


parties did not have a court-ordered parenting plan, but they agreed that the children were to reside

with Miranda in Washington.


         On June 16, 2014, AC and CC traveled to Arizona to visit Cruver, who was to return them

to Miranda     on   June 30.     At that time the   children were      10   and   6   years old.     AC and CC told


Cruver   about      discipline   practices used   by   Miranda   and   Bishop.          These disclosures concerned


Cruver and he reported Miranda for alleged child abuse to Arizona Child Protective Services.

Cruver kept the children with him and did not return them to Miranda as scheduled on June 30.

         Miranda moved for and obtained an ex parte restraining order against Cruver on June 30,

restraining    either   party from removing the         children   from Washington.              Miranda also filed a


proposed parenting plan on June 30, designating herself as the primary residential parent. 'Miranda

then flew to Arizona on July 11 and took AC and CC back with her to Washington.

         The State petitioned for dependency against Miranda because of the alleged child abuse.

At the shelter care hearing on July 15, 2014, the trial court consolidated the family law and

dependency cause numbers and entered a temporary, order giving Cruver custody of the children.3




2 We refer to the minor children by their initials to protect their privacy.

3 On July 17, the State dismissed the dependency case following the trial court' s temporary order
placing AC and CC with Cruver as a suitable parent.


                                                           2
No. 46888 -3 - II




         The trial court ordered Cruver and Miranda to return to court on July 31 for a trial on the

final parenting       plan.   On July 31, the parties informed the trial court that they had agreed to

continue   the case      and appoint     a guardian         ad   litem ( GAL).          However, the trial court denied a


continuance and refused to appoint a GAL. The trial court then granted Cruver' s request for a two

week continuance to allow his counsel time to prepare for trial.


         Miranda moved for a second continuance on August 14, the morning of trial, because

Cruver had      not responded     to her June 30        petition          for   a   parenting   plan.   The trial court denied


Miranda' s motion.


         Following trial, the trial court entered a final parenting plan on September 19, and awarded

primary    residential    placement      of    both   children          to Cruver.      The trial court limited Miranda' s


residential time with AC and CC and prohibited mutual decision making between Cruver and

Miranda because it found that she and Bishop had " engaged in physical and emotional abuse of

the   children" under     RCW 26. 09. 191( 1), (      2)(   a) -(   b). 4 Clerk' s Papers ( CP) at 124.

         Miranda moved for reconsideration of the final parenting plan. The trial court denied her

motion. Miranda appeals.




4
 RCW 26. 09. 191( 1), ( 2)( a) -( b) provide that if the trial court finds a parent has engaged in physical,
sexual, or a pattern of emotional abuse or the parent resides with a person who engages in such
abuse,   the   permanent      parenting   plan " shall           not require        mutual   decision- making" between the
parents and     the   parent' s residential    time   with       the    child " shall   be limited." Because the trial court
made findings of abuse, the court limited Miranda' s residential time by placing the children with
Cruver and required a parenting coach to supervise Miranda' s contact with AC and CC until the
parenting      coach reported     that   she    had learned            and   demonstrated " the skills to safely parent."
Clerk' s Papers at 127.

                                                                    3
No. 46888 -3 - II



                                                     ANALYSIS


         Miranda argues that the trial court abused its discretion in holding trial less than two months

after she   filed her   petition   for   a   parenting   plan.     She argues that her motion for a continuance


should have been granted because Cruver had not filed his response to her proposed parenting plan

and because there had not been enough time for her to conduct discovery or engage in settlement

discussions.     She also argues that the trial court violated RCW 25. 09. 181( 7) by entering a final

parenting plan less than 90 days after she filed her proposed parenting plan. We agree.

         A trial court' s decision to deny a motion to continue a trial is reviewed for manifest abuse

of   discretion. In   re   Welfare of A. D.R., 185 Wn.           App.    76, 85, 340 P. 3d 252 ( 2014).   A trial court


abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds

or untenable reasons. In re Marriage ofKatare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012).

         Here, the trial court abused its discretion for five reasons. First, at the time of trial Cruver

had not yet filed his own proposed parenting plan or responded at all to Miranda' s petition.

RCW 26. 09. 181( 1) requires that each party file a proposed parenting plan. The trial court had no

reason to rush a trial before the positions of both parties were known.


          Second, Miranda was denied the opportunity to engage in meaningful discovery. The trial

court originally scheduled trial 30 days after Miranda filed her petition. If Miranda had requested

written discovery from Cruver, any of his responses would not have been due until 40 days after

Miranda served her         petition on   him. See CR 33(         a);   CR 36( a).


          Third, RCW 26. 09. 181( 5) requires that both parents attend a settlement conference if a

court   rule   requires    such   conferences.      In Pierce County, PIERCE COUNTY SUPER, CT. LOCAL

 SPECIAL PROCEEDINGs RULE ( PCLSPR) 94. 04( d) provides for mandatory settlement conferences


                                                             El
No. 46888 -3 - II




in cases involving a petition to establish a parenting plan. The trial court proceeded to trial without

requiring or even allowing time to hold a settlement conference with Miranda and Cruver.

             Fourth, RCW 26. 09. 181( 7) prohibits entry of a " final order or decree" before 90 days after

filing   and service of       the   proposed          parenting     plans.     Contrary to Cruver' s argument here, no case

has held that RCW 26. 09. 181( 7)'                s   90   day   limitation.applies only to dissolution      proceedings.'      The


trial in this case was held only 45 days after Miranda filed her petition and the trial court entered

its final parenting plan just 80 days after Miranda filed her proposed parenting plan in violation of

RCW 26. 09. 181( 7).


             Fifth, the trial court had           no reason       to   rush   to trial.   No exigent circumstances required a


trial   so   soon after      Miranda filed her             petition.     The trial court had already entered a temporary

parenting      plan    removing the         children       from Miranda' s custody. Therefore, the children were not


in any danger and the trial court had time to allow the case to proceed on the normal case schedule.

             We hold that the trial court abused its discretion by holding trial and entering its final

parenting plan. We also hold that on remand this case should be assigned to a different judge. We

conclude.from the record and the history of this case that because the trial court has already reached

conclusions that resolve this dispute, the interests of justice require a remand to a different judge

for a new trial.




  Cruver       relies on    two cases to      argue        that the    90   day   period   is inapplicable here: In re Marriage
of Buecking, 179 Wn.2d 438, 316 P. 3d 999 ( 2013) and In re Marriage of Wilson, 117 Wn. App.
40, 68 P. 3d 1121 ( 2003). Buecking analyzed the 90 day period in dissolution proceedings under
RCW 26. 09. 030,            not   the 90    day   period under         RCW 26. 09. 181.        Buecking, 179 Wn.2d at 443- 45.
 Wilson held that the trial court acted within*its discretion when it approved an agreed permanent
parenting plan before it entered a final decree of dissolution because an agreed permanent
                plan   is   not a   final   order under          RCW 26. 09. 181,          Wilson, 117 Wn.   App.   at   46.   These
parenting
 cases   do   not stand     for the proposition that the 90              day period applies     only to dissolution   proceedings.
No. 46888 -3 - II



        We reverse, vacate the trial court' s order of a final parenting plan, and remand to a different

judge for a new trial.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports,. but will be filed for public record in accordance with RCW 2.06. 040,

it is so ordered.




                                                      SUTTON, J.
 We concur:



  kyo               I)
                           r

 MAXA, P. J.




 L'     J.
