Ursich v. Ursich

• Decision Date: 26 August 2019
• Docket Number: No. 78258-4-I,78258-4-I
• Citation: 448 P.3d 112
• Court: Washington Court of Appeals
• Parties: In the Matter of the Guardianship of: Casey Lynn URSICH, an incapacitated person, Appellant, v. Gregory L. URSICH, Respondent.

448 P.3d 112

In the Matter of the Guardianship of: Casey Lynn URSICH, an incapacitated person, Appellant,

v.Gregory L. URSICH, Respondent.

No. 78258-4-I

Court of Appeals of Washington, Division 1.

FILED: August 26, 2019

Jennifer M. Winkler, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St. Seattle, WA, 98122-2842, for Appellant.

Christopher M. Henderson, Katrina B. Durkin, Brothers & Henderson, P.S., 2722 Eastlake Ave E Ste. 200, Seattle, WA, 98102-3143, for Respondent.

PUBLISHED OPINION

Hazelrigg-Hernandez, J.

¶1 Casey Lynn Ursich seeks reversal of certain provisions of her guardianship order, arguing that the court applied the wrong legal standard in determining her residential schedule and that the provisions violate her statutory and constitutional rights. Because the court did not abuse its discretion in determining that the provisions were in Casey’s best interests, we affirm.

FACTS

¶2 Casey L. Ursich is a 21-year-old incapacitated person. Her parents, Gregory L. Ursich and Kathy Lynn, divorced when she was very young. When Casey¹ was a minor, her residential time was split between her two parents’ homes.

I. 2016 Agreed Guardianship Order

¶3 As Casey approached the age of majority, Kathy filed a petition seeking to be appointed limited guardian of Casey’s person and full guardian of her estate. Gregory filed a counter-petition requesting that he fill those roles. In June 2016, before the conclusion of trial, the parties entered an agreed order appointing Kathy to the contested roles. The order indicated that Casey had the right to provide input on all issues, which shall be taken into consideration by her guardian to decide who should provide her with care and assistance, and to make decisions regarding social aspects of her life. The order also specified that Casey was to make all decisions about her education, with assistance from school staff and her parents.

¶4 Casey was expected to remain in high school until the age of 21, during which time she was to reside primarily with her mother, but her residence could be changed on Casey’s initiative with the agreement of her guardian. The parties agreed that it was in Casey’s best interests to have continued contact with her father, and the order recommended that Casey reside with Gregory for four days of every fourteen-day period. Each visit would take place only with Casey’s explicit approval after private, in-person consultation with a therapist, and Kathy was directed to "support, assist, and encourage Casey to participate in additional visitation requests." Both parents were directed to encourage communication between Casey and the other parent, and to "avoid undermining the parenting efforts of the other parent in front of Casey." The order also provided a grievance mechanism.

II. 2017 Modification of Guardianship Order

¶5 About a year later, in May 2017, Gregory moved to modify the guardianship order and replace Kathy as guardian, alleging that Casey’s physical, medical, educational, and emotional conditions had deteriorated dramatically since the entry of the guardianship order. He asserted that the residential plan in the order had not been followed and Casey had only had one overnight visit with him. Gregory presented evidence that Casey had not attended school since January 10, 2017, and Kathy had canceled and failed to reschedule a meeting with school officials to discuss a possible re-entry plan. Casey’s health care records indicated that she had gained a significant amount of weight in a short period of time.

¶6 Kathy responded that Casey had needed wrist surgery in September 2016, and the necessary adjustments to her medications leading up to that procedure had precipitated a mental health crisis. She asserted that Casey had begun complaining about school and refusing to attend, and Kathy felt that the school was not able to meet Casey’s emotional and medical needs. She stated that Casey was responsible for her limited contact with her father.

¶7 The court stated at a hearing on the motion that, after reviewing the submissions of all parties, it was "incredibly concerned about the state of affairs." Even considering Casey’s resistance to attending school and medical difficulties, the court was clear that "taking [Casey] out of her regular schedule with her friends, with structure, with socialization, with education, was not—not a choice that is or was in her best interest." The court expressed concern about the unacceptable breakdown of communication between Casey’s guardian and the school, which it felt was not in Casey’s best interest. The court was also concerned by the minimal contact between Casey and Gregory, which it felt was not contemplated by the agreed order.

¶8 The court found good cause to grant the motion to modify and appointed Gregory as guardian of Casey’s estate and limited guardian of her person. The court found that "[i]mminent and ongoing serious harm to Casey" had occurred due to her removal from school, minimal contact with her father, lack of engagement in physical activities, and isolation from her friends and family. The court determined that these circumstances were not in her best interests and "[w]ithout changes, the guardianship and residential arrangements in effect prior to the entry of this order will create an ongoing likelihood of serious harm to Casey." The court also found that Kathy had substantially violated the guardianship order "in many ways," including failing to consult with Gregory on educational decisions, to comply with the grievance process, and to make reasonable efforts to accomplish residential time and visits between Casey and Gregory; which all parties had agreed were in Casey’s best interest.

¶9 Although Casey expressed a wish to reside primarily with her mother, the court found that she was susceptible to undue influence. The record contained a declaration from Casey’s attorney in which he noted that "[i]t has become quite clear to me that Casey wants whatever her mother wants." Because she had been in the sole custody of her mother and had little contact with her father for over a year, the court found that it could not reliably determine her uninfluenced interests and preferences at the time.

¶10 The order specified a residential schedule in which Casey would reside with Gregory for nine days, then with Kathy for five days. The order stated that Casey’s primary residence with her father could be "changed on Casey’s initiative, subject to the court’s approval following the receipt of input from Casey’s attorney, GAL, and information from school and the family therapist." The court appointed a guardian ad litem (GAL) to investigate the situation and report her findings to the court, and scheduled a review hearing for six months later.

III. 2018 Order Confirming Modification

¶11 In early 2018, the GAL issued a report recommending that Gregory remain guardian of Casey’s estate and that either a certified professional guardian be appointed as limited guardian of her person or that Gregory continue to fill that role. Based on Casey’s expressed wishes, the report also recommended that Casey reside primarily with her mother. The GAL noted in the report that "[w]ith appropriate checks and balances in place, this Guardian ad Litem does not believe Casey’s health or safety is compromised by living primarily with her mother." The GAL recommended that "the primary goal for Casey going forward is to provide all resources and opportunities to her to develop independence so that in 2-3 years she is able to move out of her parents’ homes and live independently in a supported living environment." In response to this report, Gregory submitted a declaration asserting that Casey had returned to school, resumed her physical and social activities, and had not threatened to run away or leave the house while residing primarily with him.

¶12 The court held the review hearing in January 2018. Gregory argued that "[t]here would be no reason for a guardianship if we were simply following the express wishes of Casey," and all parties seemed to agree that a guardianship was necessary. He argued that the residential provisions directed Gregory and Kathy to "support a default residential schedule and not to interfere with it," but did not actually restrict Casey’s actions. He also requested that the residential schedule be modified so that Casey would spend ten days with him and four with Kathy. He cited Casey’s marked improvement in the previous six months in support of this request. Kathy acknowledged that Casey had improved, but argued that her improvement should not be attributed to her living situation because she was already on the path to improvement when the guardianship was modified.

¶13 The court issued an order confirming the modification of the guardianship order, which maintained Gregory as full guardian of her estate and limited guardian of her person. The court stated that under RCW 11.88.120(1) it had the authority to modify a guardianship for good reason and to grant relief "as it deems just and in the best interest of the incapacitated person." The court found that it was in Casey’s best interests to spend time with each of her parents and did not disturb the five-day/nine-day residential split in favor of her father, finding that the schedule was also in her best interests. The order directed Gregory and Kathy to "manage housing for Casey" by transporting her to the other parent’s residence on specified days. The parents were ordered not to make any effort to reside with Casey outside the designated time without the agreement of the other parent, "prior to contacting Casey Ursich for any discussion of a proposed change, until further order of this Court." The court identified the most significant fact bearing on its decision as Casey’s significant improvement since the order granting the motion to modify the guardianship. The court also found that Gregory had acted in Casey’s best interests since he was...