In re McCann

Citation: 424 P.3d 234Docket: No. 76113-7-I

Court: Court of Appeals of Washington; August 20, 2018; Washington; State Appellate Court

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Orr's appeal for a new trial is based on the trial court's denial of her requested disability accommodations under GR 33, which she claims violated her constitutional rights and compromised her right to a fair trial. However, the court found that Orr did not sufficiently prove she had a qualifying disability for accommodations. The dissolution case centered on the custody of the couple's daughter, diagnosed with high-functioning autism and related conditions. Psychologist Dr. Gary Wieder's evaluation indicated the daughter faced significant impairments and required specialized treatment. Following trial, the court awarded McCann full decision-making authority regarding their child's education and medical care and mandated a shared living arrangement. Orr had previously changed attorneys multiple times and represented herself during the trial after her last attorney withdrew. In the lead-up to the trial, Orr requested a 30-day continuance to explore potential accommodations for her alleged disability, but her request was denied due to procedural issues and the potential prejudice it posed to McCann.

On September 14, 2016, Orr submitted additional materials to support her request for a trial continuance, citing a psychiatric injury linked to the stress of caring for her daughter with developmental disabilities. This included a form and a declaration from Dr. Karin Huffer, a licensed therapist and ADA advocate, who described Orr as a qualified individual under the ADA Amendments Act due to her psychiatric injury. Although no formal medical diagnosis of PTSD or other disabilities was provided, Dr. Huffer indicated that Orr required a disability advocate present during the trial and requested a 30-day continuance for proper evaluation of necessary accommodations.

On September 16, Orr filed an addendum seeking a continuance until December 1, 2016, primarily to review extensive discovery obtained from subpoenas. She noted that lack of accommodations had hindered her access to justice, though she did not specify missed deadlines or procedures aside from the request for an ADA advocate.

McCann opposed the continuance, and the trial court denied both requests on September 23. When trial began on September 26, Orr requested a two-week continuance to secure representation, expressing fear of self-representation and cross-examination. The court denied this request, citing Orr's prior opportunities to obtain legal counsel and her demonstrated ability to advocate effectively in writing.

At trial, the issues centered on the care of the daughter, property division, and maintenance. Orr called McCann as a witness and examined him in detail, followed by Dr. Huffer, who testified via phone about accommodations for their child without diagnosing Orr or asserting her competence in such matters. During cross-examination, Dr. Huffer mentioned providing a "functional evaluation" for accommodations but did not clarify its meaning or its relation to Orr's PTSD claim.

On September 28, 2016, Orr was absent from trial due to health issues, including vomiting and chest pains, prompting the court to recess until the following day. The court received two packets from Orr, containing information from Dr. Huffer related to a disability accommodation request. However, the materials primarily referenced the disability of the parties' daughter and lacked sufficient evidence to establish Orr's disability under GR 33, leading the court to order the trial to continue on October 3.

On October 3, the court received another packet from Orr, which included a new diagnosis of Post-Traumatic Stress Disorder (PTSD) from Dr. Huffer. Despite this, the court found the evidence inadequate to confirm Orr's disability. The court raised concerns about Dr. Huffer's credentials and the lack of specific references to Orr's situation in her memorandum. Ultimately, the court could not find that Orr had a disability.

Out of respect for Orr and the child involved, the court chose to address the nine accommodation requests proposed by Dr. Huffer, emphasizing the importance of ensuring a fair trial and the child's best interests. The court noted that accommodations must be directly connected to a verified disability, as stipulated by GR 33.

The trial court found no disability for Orr but did not completely reject her nine requested accommodations, granting some fully, partially granting others, and denying some as unwarranted or impractical. Following the trial, McCann was awarded full decision-making authority regarding the child's education and medical care, and the child was ordered to live with McCann half the time. A guardian ad litem was appointed, and McCann was ordered to pay spousal support while receiving the family residence. Orr subsequently moved for a new trial, arguing her disabilities were not properly accommodated, but the court denied her motions. 

Orr appeals, focusing on whether she has a disability and if the accommodations—or lack thereof—affected her right to a fair trial. She presents three arguments: the trial court misapplied GR 33, abused discretion by denying a mistrial, and violated her procedural due process rights. McCann contends that GR 33 is not appealable in the same case where the accommodation was denied and that Orr failed to prove she has a disability, making GR 33 inapplicable.

McCann asserts that GR 33 does not provide a right to appeal and that the King County Superior Court, not McCann, is the proper party for claims related to violations of GR 33. The document notes that while GR 33 does not explicitly grant a right to appeal, Washington appellate courts have previously entertained appeals regarding similar rules. Furthermore, McCann's argument that King County is the proper party fails, as past cases have allowed appellants to challenge the application of general rules without necessitating claims against the counties involved.

Orr argues that her fair trial rights were compromised due to the trial court's incorrect application of courtroom procedures, rather than any actions by McCann. The central issue is the fairness of Orr's trial, distinct from whether King County should face sanctions for not accommodating her needs. The court dismissed McCann's claim that the accommodation appeal must be separate from the main case and that King County should defend it.

The trial court determined that Orr did not sufficiently demonstrate she had a disability, which meant that accommodations under General Rule 33 (GR 33), including a continuance, were not justified. GR 33 mandates that court services must be accessible to individuals with disabilities, defined in accordance with the Americans with Disabilities Act (ADA) and the Washington State Law Against Discrimination (WLAD). The ADA outlines a disability as a condition that significantly limits major life activities, while WLAD offers a broader definition, including perceived disabilities, which Orr claims includes her PTSD diagnosis.

GR 33 allows a trial court to deny accommodation requests based on specific criteria, such as failure to meet substantive requirements, inability to provide accommodations without significant prejudice, health threats, financial burdens, or fundamental alterations to court services. The trial court's stance that proof of disability is necessary for accommodations under GR 33 was upheld, indicating no error in its interpretation.

The trial court found insufficient evidence to support Orr's claim of a disability, specifically PTSD. Orr argued that the court showed bias against mental illness, but this claim did not address the lack of a competent diagnosis for her PTSD. Dr. Huffer, who Orr engaged for assistance with her anxiety, based her recommendations on the assumption that a PTSD diagnosis existed. Orr's request for a 30-day continuance for ADA evaluations was supported by Dr. Huffer’s declaration, which noted Orr's psychiatric injury related to stress from caring for her daughter with developmental disabilities. However, Dr. Huffer's subsequent submissions focused on diagnostic considerations regarding the daughter, not Orr, and did not substantiate allegations of domestic violence against McCann, with assessments indicating that Orr herself had been controlling in the relationship. The domestic violence protection order was ultimately dismissed. Dr. Huffer failed to provide a competent PTSD diagnosis for Orr, and during trial, she did not claim to possess the necessary credentials for such a diagnosis. The trial court concluded that Orr did not meet the requirements for proving a disability, a finding supported by substantial evidence. Consequently, the court's denial of the requested accommodations was not erroneous.

Orr contends that the trial court mishandled her requests for accommodations under GR 33 in several ways: (1) by failing to issue a written decision denying her requests; (2) by not informing her of her right to file an ADA complaint; (3) by not processing her requests entirely ex parte; and (4) by not acting promptly on her requests. However, GR 33 does not mandate a written decision in every instance; it only requires that the court inform the requester of its decision, either in writing or on the record, and the trial court fulfilled this requirement by stating its rulings on the record. Orr did not demonstrate how the lack of written orders affected her right to a fair trial.

Regarding the ADA complaint, while the trial court did not inform Orr of her right to file, she was aware of it and did not argue that this oversight prevented her from filing or prejudiced her ADA remedies. As for the ex parte argument, GR 33 allows but does not require that requests be handled entirely ex parte. The requests for continuance did not adequately document a disability or the need for accommodations, and although the trial court sealed the relevant health care information, it permitted McCann access as per the rule's stipulations.

The trial court recognized the separation of McCann and his daughter during the trial and acknowledged McCann's right to notice regarding continuance motions, as per CR 5(a). It mandated service of the continuance and accommodation requests to McCann, with Orr not claiming any resulting prejudice. Orr's continuance requests on September 14 and 16, 2016, were based on her need for more preparation time, stemming from her own discovery efforts after representing herself. Additional requests on September 28 and October 3 included accommodation requests, which were sealed but also ordered to be served on McCann without objection from Orr. The trial court acted within its discretion by requiring notice to McCann rather than proceeding ex parte.

Orr contended that the trial court delayed in addressing her accommodation requests, citing GR 33(b)(1), which mandates prompt action. However, the initial request made on August 26 was not submitted until September 2 due to the administrator's absence, and the court was on leave until September 6. The court denied the request on September 7, demonstrating prompt action. Subsequent continuance requests on September 14 and 16 did not adequately establish a disability, and the court issued a written denial by September 23. The trial court also promptly denied a continuance request on the first day of trial and addressed specific accommodation requests on October 3.

Orr claimed the trial court abused its discretion in denying her motion for a new trial, arguing that procedural irregularities related to the GR 33 accommodations compromised her fair trial rights. Under CR 59(a)(1), a new trial may be granted if such irregularities materially affect substantial rights. The denial of a new trial is reviewed for abuse of discretion, which occurs if the court's order is manifestly unreasonable or based on untenable grounds.

Orr's appeal centers on the trial court's failure to provide necessary disability accommodations as required by GR 33, which she argues constitutes an irregularity impacting her trial. The court ruled that Orr's argument for a new trial hinges on the analysis of GR 33 and rejected her claims of a fair trial violation, affirming the denial of her motion for a new trial. Additionally, Orr contends that the lack of accommodations infringed upon her due process rights under both the U.S. and Washington Constitutions. While the due process clause protects against deprivation of life, liberty, or property without due process, Orr's claim specifically targets the denial of accommodations rather than the overall constitutionality of dissolution proceedings or the challenges of representing herself. The court noted that Orr had opportunities to substantiate her disability but failed to do so, resulting in her ineligibility for the accommodations under GR 33 and leading to the dismissal of her procedural due process claim. Regarding attorney fees, McCann requested compensation for what he characterized as Orr's obstinate litigation behavior, but the court declined the request, indicating that the case's outcome would not prevent McCann from pursuing any legal remedies post-disposition. The court ultimately affirmed the trial court's decisions.

The trial court noted that Orr had the financial means to hire an attorney. Orr contended that the court's praise for her work indicated a substitution of judgment regarding her disability status, a claim deemed baseless due to the context. The materials submitted on October 3 included duplicative documents and an accommodation request cover sheet, with the trial court receiving them late on the morning of the same day. Orr referenced instances of domestic violence in her history, including two reported incidents in 2012 and 2013, with no arrests made and a later domestic violence assessment finding no domestic violence in her marriage. A temporary restraining order was obtained against McCann, and Orr previously filed but later abandoned a tort claim for domestic violence. 

Orr's opening brief included a request to consider new evidence of a PTSD diagnosis from Dr. Beth Falanga, which she could not present earlier due to the physician's unavailability. The court denied this request, as Orr did not adequately analyze the requirements of RAP 9.11. McCann responded by moving to strike Dr. Falanga's diagnosis or to allow submission of Orr’s prior statement denying any mental disorder. The court did not consider Orr's additional evidence, rendering McCann's motion unnecessary. 

Orr requested nine accommodations for her trial, including a 30-day continuance, the presence of a trained ADA advocate, oral and written communication of rules, breaks during symptoms, the ability to record proceedings, limited court hours, a sequestered waiting area, possible further continuances, and access to medical care if needed. Washington courts have established that in employment contexts, the employer must perceive the disability if the employee is relying on perception to establish it. Orr did not argue under this perceived disability theory. The court found no abuse of discretion in denying her continuance requests, as they were not all related to her disability and were close to the trial date, though she was permitted to have supportive individuals present during the proceedings.