Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

In the Matter of the Parenting and                  )      No. 66501-4-I
Support of                                  )       consolidated with
                                            )       No. 67100-6-1
S.M.F., minor child                         )
                                            )
                                            )
STATE OF WASHINGTON,                        )
                                            )
                      Respondent,           )
                                            )
              v.                            )
                                            ) 
ARNOLD-CARLO ANDRADA DELIZO,                )       UNPUBLISHED OPINION
                                            )
                      Alleged Father,       )       FILED: March 19, 2012
                                            )
RYOKO FUKUDA,                               )
                                            )
                      Appellant.            )
                                            )

       Ellington, J.  --  Ryoko Fukuda appeals the orders providing for the care and 

support of her child with Arnold-Carlo A. Delizo.  She also appeals the denial of her 

posttrial motion to vacate.  Fukuda does not demonstrate error or abuse of discretion 

in the orders on review.  We affirm.  

                                      BACKGROUND

       Fukuda and Delizo had a brief dating relationship in 2004.  Fukuda became 

pregnant and gave birth to a daughter, S.M.F, on March 6, 2005.  In May and 

December 2005, however, the parties experienced conflict, and Fukuda called police  

No. 66501-4-I/2

to report certain incidents when Delizo came to her apartment.  

       In February 2006, Fukuda obtained an order of protection against Delizo.  The 

order required Delizo to complete domestic violence treatment and parenting classes.  

The order noted that parentage had not been established and was issued subject to 

orders in any paternity action.  Fukuda sought and obtained renewal orders each 

year.  Delizo did not violate the order and did not attend the hearings on renewal until 

July 2010.  There was no contact between the parties for approximately five years.

       Fukuda applied for public assistance, and in August 2009, the State filed a 

petition to establish the parentage of S.M.F.  Genetic testing confirmed that Delizo is 

S.M.F.'s father.  The court appointed special advocate (CASA) filed a report 

recommending that Delizo be allowed gradually to establish a relationship with 

S.M.F., beginning with professionally supervised visits and progressing to visits 

supervised by a nonfamily member known by the child.  The CASA also 

recommended that Fukuda participate in a minimum of five individual counseling 

sessions to ensure her cooperation as S.M.F. establishes a relationship with Delizo.  

In August 2010, the parties signed a CR 2(A) agreement providing for eight

professionally supervised visitation sessions for Delizo at Indaba of Seattle, and 

assigning 54 percent of the cost to Delizo and 46 percent to Fukuda.

       Although Fukuda had apparently been represented by counsel before, she 

represented herself at trial.  She proposed a parenting plan providing no residential 

time for Delizo until he completed domestic violence treatment as required by the 

protection order.  Delizo proposed a plan consistent with the CASA recommendation,

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beginning with professionally supervised visits and gradually increasing visitation and 

residential time until S.M.F. would spend unsupervised residential time with him every 

weekend.

       The court entered a parenting plan substantially in line with Delizo's and the 

CASA's recommendation, providing for five phases of increasing visitation with Delizo 

until S.M.F. resides with him every first, third and fourth weekend of each month.  The 

court found that Fukuda "withheld from the other parent access to the child for a 
protracted period without good cause."1 The court therefore "restricted" Fukuda's 

residential time with S.M.F. under RCW 26.09.191(3) by requiring that Fukuda "shall 

participate in a minimum of 5 individual counseling sessions to ensure that she [is] 
able to support the child as she establishes a relationship with her father."2 The court 

dismissed the protection order and refused to order domestic violence treatment.  The 

court also ordered Delizo to pay child support of $79.69 per month as well as 

$3,774.54 in back support from S.M.F.'s date of birth.

       In March 2011, Fukuda's new counsel filed a motion to vacate all the previous 

orders and rescheduled the trial date, claiming that Delizo made material 

misrepresentations in his trial testimony and sworn declarations.  The court reviewed 

the transcript and the record, entered additional findings of fact, and denied Fukuda's 

motion.

                                       DISCUSSION

       1 Clerk's Papers at 511.

       2 Clerk's Papers at 514.

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       Parenting plan decisions are an area for the exercise of the trial court's 

discretion, and we will not reverse unless the decision is manifestly unreasonable or 
based on untenable grounds or reasons. 3 A primary concern in establishing 

parenting plans is that parenting arrangements should serve the best interests of the 
child.4

       Fukuda presents extensive argument supporting her challenge to the finding 

that she withheld the child from Delizo for a protracted period of time.  She argues 

about the circumstances leading to the issuance of the original protection order, 

including the procedural propriety of the 2006 hearing and statements made at the 

hearing by Delizo and the court commissioner who entered the protection order.  She 

contends the trial court "erroneously disregarded the domestic violence protection 
order and renewal orders and the Commissioner's advice to the parties."5  She

suggests the judge was biased, misinterpreted laws against domestic violence, and 

erroneously faulted her for seeking protection from domestic violence.  Her position is 

that Delizo chose not to see his child and the parenting plan rests upon an erroneous

attribution of improper motive for her annual renewals of the protection order.  She 

also contends the court unreasonably excused Delizo from participating in domestic 

violence treatment as required by the protection order.

       The court heard extensive testimony from both parties about the circumstances 

surrounding the protection order.  In essence, Fukuda testified she felt threatened by 

       3 In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).

       4 RCW 26.09.002.

       5 Br. of Appellant at 3.

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physical violence and threats to cause her trouble.  She emphasized that Delizo told 

the court commissioner he intended to file a parentage action.  Delizo denied her 

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allegations and testified he had given up trying to contact Fukuda because he 

concluded from her behavior he was not S.M.F.'s father.

       The court resolved this factual dispute based on its assessment of the 

credibility of the parties.  The court identified inconsistencies in Fukuda's testimony

and observed that despite having had no contact with Delizo for years, Fukuda had 

annually renewed the protection order.  The court found credible Delizo's explanation 

that he had no longer believed he was the father.  The court ultimately found that 

Fukuda withheld the child from Delizo for a protracted time without cause.

       Credibility determinations are the province of the trial judge; appellate courts

do not review those determinations nor substitute our judgment for that of the trial 
court.6 Fukuda fails to establish that the court erred in finding she withheld S.M.F. 

from Delizo for a protracted period without just cause.

       The court was not persuaded that the parenting plan should include restrictions 

on Delizo's residential time or that he should be required to complete domestic 

violence treatment.  This too is a discretionary determination based in part on 

credibility and is supported by the evidence and the CASA recommendation.  We see 

no grounds for  reversal.

       Fukuda contends the parenting plan includes punitive provisions.  But nothing 

in the parenting plan is punitive.  The court imposed only one restriction on Fukuda: 
the requirement that she attend five counseling sessions.7  This is consistent with the 

       6 In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).

       7 See Clerk's Papers at 511, 514 (parenting plan ¶ 2.2; ¶ 3.10). We note that 
Fukuda does not challenge this requirement on appeal.

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No. 66501-4-I/7

CASA's recommendation and is not punitive.

       Fukuda also contends the final residential schedule is outside the bounds of 

reasonable choices.  In particular, she objects to the amount of residential time for 

Delizo, the right of first refusal for two hours or more of child care during residential 
time,8 and joint decision making.  She argues that the scheduled three weekends per 

month with Delizo is "highly questionable" because the quality of Delizo's parenting 
has not yet been assessed and the "norm" is alternating weekends.9 But the three 

weekend plan is not an immediately effective schedule, and the quality of Delizo's 

parenting will be well known before that schedule is in place.  Fukuda also contends

the right of first refusal is not in the child's best interest and undermines her privacy, 

and that joint decision making will be so time consuming and expensive she will be

unable to work except when the child is in school or with Delizo.  But she made no 

objection below regarding the right of first refusal or joint decision-making.  She fails 

to demonstrate error or establish any abuse of discretion in the parenting plan.

       Fukuda next challenges the child support order, contending the court abused 

its discretion by finding Delizo's monthly income to be $1,207 because he listed his 

monthly expenses as $2,934 in his financial declaration.  We review a child support 
order for abuse of discretion.10 The court relied on Delizo's testimony and 

       8 The parenting plan provides:  "Right of first refusal:  [I]f a parent will be 
unable to exercise his/her residential time for two hours or more, the parent shall 
immediately notify the other parent who shall be afforded the option to care for the 
child before the child is placed with any other third party such as a babysitter, 
relatives, friends or daycare." Clerk's Papers at 517.

       9 Br. of Appellant at 42.

       10 In re Marriage of Bell, 101 Wn. App. 366, 371-72, 4 P.3d 849 (2000).

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No. 66501-4-I/8

documentary evidence including tax returns, commission statements, and bank 

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records to determine Delizo's monthly income.  Fukuda did not challenge that 
evidence and offered no contrary evidence or argument.11 The court's determination 

was therefore within the bounds of the evidence presented, and the court did not 

deviate from the uniform child support schedule.  Under these circumstances, Fukuda 

fails to demonstrate any abuse of discretion in the child support order.

       In conclusion, because Fukuda fails to establish any error or abuse of 

discretion, we affirm the challenged orders.  We therefore do not address Fukuda's 

additional arguments regarding proceedings on remand.

       Affirmed.

WE CONCUR:

       11 See RAP 2.5(a); In re Marriage of Burch, 81 Wn. App. 756, 761, 916 P.2d 
443 (1996) (parent waived objection to grant of a health care credit in support 
calculation by failing to raise issue at trial court level).

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