Opinion
No. 63438-1-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 02-3-05316-9, Mary E. Roberts, J., entered April 6, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Becker and Ellington, JJ.
In the first appeal in this case, we held the trial court has the authority under RCW 26.09.191(3)(g) to impose foreign travel restrictions on residential time if the court expressly finds the parent's conduct is adverse to the best interests of the child and the restrictions are reasonably calculated to address the harm. In re Marriage of Katare, 125 Wn. App. 813, 105 P.3d 44 (2004). Because the trial court found that the father did not appear to present a serious threat of abduction, yet imposed foreign travel restrictions on his residential time with the children to prevent abduction, we remanded to the trial court to clarify whether the court found there was a risk of abduction that justified the imposition of the restrictions. On remand, the court expressly found that the father made credible threats to take the children to India without the mother, "[t]he risk of abduction has not abated," the father's conduct was adverse to the best interests of the children, and the passport and travel restrictions are "reasonably calculated to address this identified harm." The father's primary argument in this appeal is that the trial court erred in relying on inadmissible evidence in finding credible threats to abduct and imposing the foreign travel restrictions. The father also contends that the trial court erred in denying his motion in limine to exclude profile evidence on the grounds that the witness was not qualified to testify, the evidence does not meet theFrye standard, and the prejudice of such testimony outweighs any probative value. We agree the trial court abused its discretion in admitting the profile evidence. However, without regard to the impermissible profile evidence, because substantial evidence supports the trial court's imposition of the foreign travel restrictions, we affirm.
Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
FACTS
The facts are more fully set forth in In re Marriage of Katare, 125 Wn. App. 813, 105 P.3d 44 (2004) and will be repeated only as necessary.
Background
Brajesh Katare was born and raised in India. Brajesh is very close to his family. All of his family members live in India. After obtaining a computer science degree in India, Brajesh enrolled in school in Florida to pursue a postgraduate degree. Brajesh obtained his master's degree in 1991, and then worked in the computer industry in Florida. In 1995, Brajesh and Lynette Katare were married in Clearwater, Florida. Lynette is from the Clearwater area and has a close relationship with her extensive family in Florida.
We refer to the parties by their first names to avoid confusion and intend no disrespect by doing so.
In 1999, Microsoft offered Brajesh a job. Lynette did not want to leave her family and move to Washington state, but eventually agreed to do so. The couple's daughter, A.K., was born on May 27, 2000, and their son, R.K., was born on September 20, 2001. Brajesh became a U.S. citizen in the summer of 2000.
In 2002, Brajesh sought a position at Microsoft that did not require as much travel. In April 2002, Microsoft offered Brajesh a job in Florida, but he did not accept the offer. In May, Microsoft offered Brajesh a two-year position in India to begin in the summer or fall of 2002. Brajesh accepted the offer. Lynette did not want to move to India with the children. Despite her objections, Brajesh stopped looking for another position. As the deadline to move approached, Brajesh and Lynette frequently argued about moving to India.
In July 2002, Brajesh went on a two-week trip to India to make arrangements for the move. While Brajesh was gone, Lynette filed for dissolution of the marriage. In her request for a restraining order, Lynette states that Brajesh threatened to take the children to India without her.
Brajesh and Lynette agreed to appoint Margo Waldroup to conduct a parenting assessment and make recommendations regarding the parenting plan. In October 2002, Lynette filed a notice of her intent to relocate with the children to Florida.
Waldroup completed her parenting assessment and report in fall 2002. The report includes an extensive discussion of threats to abduct and the risks of abduction. Waldroup states that while Brajesh denied making any threats, Lynette's fear was credible and her allegation was corroborated by two witnesses. According to the two witnesses, during the summer of 2002, Brajesh said he would take the children to India without Lynette if she did not agree to go. Waldroup concluded Brajesh made the threats, and regarding the imposition of permanent travel restrictions, states:
There is no way to know if the father is at risk of taking the children to India and therefore I cannot recommend restrictions, or lack of them, based on the allegations. I do believe the father made the threats to take the children to India without Lyn, and had likely done so in an effort to coerce Lyn into moving to India. Whether he would take the children at this time to "punish" Lyn remains unknown.
Waldroup recommended that the supervised visitation restrictions that were in place at the time should "certainly not be lifted until the children's passports have been secured." She also suggested that the court consider placing the passport numbers on a watch list or requiring Brajesh to post a bond.
Waldroup states in her report that because Brajesh denied making any threats, she could not predict whether the father would abduct the children.
No evaluation of this type can tell whether the father will abduct the children. I am not aware of any criteria that can predict if such would occur. The Katare's situation is somewhat unusual in that there is not only the allegation of abduction but corroboration of two witnesses hearing the threat that Brajesh would take the children to India "with our [sic] without" their mother. As Brajesh denies these statements it is impossible to evaluate whether the statements were said in crisis to pressure the mother to move to India, rather than being his literal intent or whether Brajesh truly intended to remove the children from the country without the mother's consent. Because Brajesh is not willing to acknowledge his anger over the mother's lack of agreement to move, I cannot assess whether his anger has decreased over time and if he has gained any perspective on his actions of last summer. His assurances that he has surrendered his Indian passport and citizenship are of no comfort given that he can easily be reinstated as an Indian citizen and obtain a passport.
The five-day dissolution trial took place in July 2003. Lynette testified about the threats Brajesh made to take the children to India. She said Brajesh told her: "I've taken this position. . . . [w]hether it results in divorce or not," and that "we're all going" and she had "no choice." As corroborated by other witnesses, Lynette testified that Brajesh was extremely angry and frustrated because of her opposition. Lynette said that Brajesh initially tried to force her to agree to move with him to India but then eventually said he did not want her to go. Lynette said Brajesh told her that he was "going to take [the children] to India without [her]," and she would have "no recourse to get the children back." Lynette also said that Brajesh told her he could "hire a nanny to replace [Lynette] as mother" and his family would help raise the children. Lynette testified that Brajesh told her that he would take the children to India without her at least eight different times.
Lynette testified that Brajesh told her the job in India was not just for two years but would be "as long as he wanted it to be." Lynette said that Brajesh also told her "it would be very easy for him to regain Indian citizenship," and he would be able to get a job with an Indian company and "live there forever." Lynette testified that she found an application for an India PIO card (similar to a United States "green card") on Brajesh's computer.
Lynette also said that during the arguments, Brajesh routinely swore at her and at one point threatened murdering the family and suicide.
Brajesh's account was very different. Brajesh testified that Lynette was "excited" and "[v]ery supportive" of him accepting the position in India. Brajesh testified that there was no conflict over the move, but rather, they both had an "equal amount of concerns" that they were "working constructively to figure out." Brajesh said that he did not "press Lynn very hard, but [he] did talk to her about moving to India." However, Brajesh admitted that the "India job precipitated" all the difficulties in the marriage.
Although Brajesh testified that he had been to India six to eight times since July 2002, he said he did not intend to move to India after the dissolution was finalized. When asked about his plans to move to India if Lynette and the children moved to Florida, Brajesh testified, "I cannot move to India because there is no position for me in India." Brajesh said he was supervising employees based in India but his role there would soon "diminish."
During cross examination, Lynette's attorney sought to impeach Brajesh with his 1997 application to IBM in India in which he asserted that he was "planning to settle in India." Lynette also presented evidence that Brajesh sold the family car in preparation for the move and that during discovery, Brajesh requested copies of various documents that he would need to take the children to India, such as applications for the children's passports, Indian tourist visas, and immunization records.
Waldroup believed Brajesh made the threats reported by Lynette: "I do believe the father made the threats to take the children to India." She testified that two witnesses heard Brajesh tell Lynette he would take the children to India with or without her on two separate occasions. Waldroup also testified that Lynette's concerns about Brajesh taking the children to India were "justified" and "not out of proportion to the situation." Waldroup believed Brajesh "used threats of kidnaping [sic] the children or killing the family in an effort to force Lynette's agreement to move to India."
However, because he denied making the threats, Waldroup said it was very difficult to predict whether Brajesh would abduct the children. Waldroup told the court it would have to decide whether the risk was significant enough to impose the restrictions.
During his cross examination of Lynette, Brajesh introduced into evidence the declarations of the two witnesses identified by Waldroup as corroborating the threats made by Brajesh. One witness said she talked to Brajesh in the summer of 2002 at Lynette's grandfather's memorial service, and Brajesh said Lynette was being "`stupid'" and "`stubborn'" about the move and he would take the children to India "`with or without'" her. The other witness said that during the same time period, she heard Brajesh tell Lynette over the telephone that he did not need her and was taking the children to India where his family would help raise them.
The court granted Lynette's motion to relocate to Florida. The parenting plan gave Brajesh three-day visits each month within a two-county area in Florida until R.K. reached age five. The court found that Brajesh did not appear to present a serious threat to abduct and the statutory basis for imposition of restrictions based on parental conduct did not apply. Nonetheless, the trial court imposed foreign travel restrictions based on the following findings:
2.20.1 India is not a signator to the Hague Convention on International Child Abduction.
2.20.2 Based on the evidence, including the testimony of expert witnesses, the husband appears to present no serious threat of abducting the children. Nonetheless, under the circumstances of this case, given the ages of the children, the parties' backgrounds, ties to their families and communities, and history of parenting, the consequences of such an abduction are so irreversible as to warrant limitations on the husband's residential time with the children, including: location of exercise of residential time, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children. The mother shall retain the children's passports.
First Appeal
In the first appeal, Brajesh challenged the foreign travel restrictions and the two-county restriction while with the children in Florida. Brajesh argued that because the court did not find a basis for limitations under RCW 26.09.191 and determined there was "no serious threat" that he would abduct the children, the findings did not support the imposition of restrictions.
We held that a court has the authority under RCW 26.09.191(3)(g) to impose restrictions in a parenting plan if the court expressly finds "`factors or conduct . . . adverse to the best interests of the child,'" and the restrictions are "reasonably calculated to address the identified harm."Katare, 125 Wn. App. at 826 (quoting RCW 26.09.191(3)(g)). Because the court found there was no basis to impose restrictions but also found that the imposition of foreign travel restrictions was justified based on an implicit finding of the risk of abduction, we remanded. Katare, 125 Wn. App. at 830-31.
As to the two-county geographical limitation in Florida, we held that the restriction was not "logically related to the risk of abduction" and the court's stated reason that the children were too young to travel any further was not supported by the evidence in the record. Katare, 125 Wn. App. at 832.
Although the trial court stated Brajesh "appears to present no serious threat of abducting the children," it addressed concerns about the risk of abduction and imposed limitations to prevent abduction. Whether the court found there was a risk of abduction that justified the imposition of limitations is at least ambiguous. Indeed, such a finding is implicit in the trial court's discussion of the risk of abduction, the findings it made, and the limitations it imposed. Except for the inconsistent entry that states the RCW 26.09.191 basis for restrictions does not apply, the court's findings support restrictions under RCW 26.09.191(3)(g). Rather than speculate, we remand for the trial court to clarify the legal basis for its decision to impose restrictions to prevent Brajesh from taking the children to India and if appropriate to make the necessary findings.
Katare, 125 Wn. App. at 831 (footnotes omitted).
On remand, the trial court amended the parenting plan by restating the previous findings related to foreign travel restrictions, including the finding that Brajesh presents "no serious threat of abducting the children," but added a finding that "[t]he risk of abduction is a factor justifying limitations under RCW 26.09.191(3)(g)."
In re Marriage of Katare, 140 Wn. App. 1041, *2, 2007 WL 2823311.
Second Appeal
In the second appeal, Brajesh argued that the trial court failed to comply with this court's mandate. We agreed and held:
By basically restating its earlier findings as the justification for imposing limitations on Brajesh's residential time with the children under RCW 26.09.191(3)(g), the trial court does not resolve the ambiguity and does not expressly address whether the evidence supports the limitations under RCW 26.09.191(3). The amended parenting plan still states that "the husband appears to present no serious threat of abducting the children," and again, without express findings to justify the limitations, the court imposed restrictions, apparently based on an implicit risk of abduction. In addition, the court also does not expressly address the best interests of the children.
In re Marriage of Katare, 140 Wn. App. 1041, *3, 2007 WL 2823311. Because the findings did not expressly address the justification for foreign travel restrictions under RCW 26.09.191(3), we held that the court did not comply with the mandate and remanded. Given the passage of time, we directed the trial court to also examine current relevant information to determine whether any restrictions under RCW 26.09.191(3) were justified. Katare, 2007 WL 2823311, at *3.
Hearing on Remand
On remand, the trial court scheduled a two-day hearing to address whether the evidence supports foreign travel restrictions under RCW 26.09.191(3) and to examine the current information to determine whether restrictions were justified.
Lynette identified Michael C. Berry, an attorney with experience in legal proceedings involving the return of abducted children, as an expert witness in her disclosure of possible primary witnesses. Lynette stated that Berry would testify about the difficulties and expense of obtaining the return of an abducted child and "the profile of persons who . . . are likely to abduct." Brajesh filed a motion in limine to exclude profile testimony. Brajesh argued profile evidence was inadmissible, that Berry was not qualified to testify about the profile of a potential child abductor, and such testimony was not supported by generally accepted scientific principles underFrye. The court reserved ruling on the admissibility of Berry's testimony.
The court heard testimony from Brajesh and Lynette and also from Brajesh's girlfriend and his coworker at Microsoft. The court also considered extensive e-mail correspondence between Brajesh and Lynette from after the 2003 trial until the beginning of 2009. The court allowed Berry to testify. The court ruled that the testimony would assist it in understanding the literature on international child abduction submitted as exhibits and observed that the court was ultimately responsible for making the determination of risk of abduction.
Brajesh has been based in Redmond since October 2005. He has received two significant promotions since completing the assignment in India and purchased a residence in 2008.
On April 6, 2009, the court entered detailed "Findings of Fact and Conclusions of Law on Second Remand." The court found that Brajesh made credible threats to take the children to India without the mother in 2002 and the risk of abduction "[had] not abated." The court concluded Brajesh's conduct and testimony "alone" put the children at risk of abduction justifying the imposition of passport and foreign travel restrictions on his residential time with the children under RCW 26.09.191(3)(g).
Based on the evidence presented at the 2003 trial, the court expressly found that "there is a sufficient risk of abduction to warrant a geographical limitation on the father's residential time," and deleted its earlier finding that Brajesh presents "no serious risk" of abduction. The court found that the credible evidence of threats was corroborated by evidence of Brajesh's actions around the time of the dissolution. Consistent with an intent to unilaterally move to India with the children, an application for a PIO card was found on Brajesh's computer, and he sought to obtain copies of documents in discovery which would assist him in taking the children to India. The court further found that the "consequences of abduction to India are incredibly serious and irreversible." The court's findings, based on the evidence at the 2003 trial, state:
· The father was born and raised in India, where his immediate family still remain. Other than the parties' children, the father has no family ties to the United States. (He is now engaged to marry an Indian woman who lives and works in the Seattle area and has applied for a green card).
· Even after the mother expressed her disagreement in moving the family to India, the father nevertheless pursued the family's relocation to India.
· In the months leading up to the mother filing a petition for dissolution of their marriage, the father threatened to take the children to India without the mother. Third parties interviewed by the parenting evaluator stated that they heard the father make similar threats. The trial court finds that the mother's testimony that the father made threats was credible, when viewed in conjunction with the testimony of others.
· The father sought information for the children in discovery, which would have allowed him to obtain documents (Indian PIO cards) which would assist in removing the children from the country. The information requested included: copies of the applications for the children's passports and Indian tourist visas, copies of passport pages and Indian tourist visas from their passports, and copies of the children's immunization records.
· The mother found an application for an Indian PIO card (similar to a U.S. "green card") on the father's computer.
· The father has the means and potential to relocate to India for employment.
· The children were too young to seek help if the father improperly retained them in India.
Although the court found that the children were too young to effectively seek assistance if retained in India, it declined to base this finding on Lynette's testimony which it characterized as "overly dramatic."
· The consequences of abduction to India are incredibly serious and irreversible.
· The risk of abduction was sufficient to warrant limitations on the father's time with the children.
· It was in the best interests of the children to have their residential time with their father in the United States given the above findings; it was in their best interest to limit their travel outside the United States as well, given the risks.
The court also addressed current circumstances and found that the evidence presented on remand "shed light on some of the court's earlier findings." The court found:
The risk of abduction has not abated, and based on evidence presented at the hearing on remand, is seen more clearly to have been strong at the time of the original trial, and perhaps to have now increased. From the emails between the parties after the first trial, it is evident that the father still harbors resentment against the mother, which could manifest itself by an abduction of the children. The father's emails demonstrate extreme anger, abuse, unreasonableness, and poor judgment. This is of particular concern given that he knew that the emails would likely be presented in court. He addressed the mother in a condescending and humiliating manner, indicating utter disdain for the mother. This continuing conduct, especially when the father is aware of the court's involvement, heightens the risk to the children.
Pointing to Brajesh's "extreme anger," "bitterness towards [Lynette]," and his "demonstrated . . . willingness to punish the children in response to the parenting plan," the court found that his "pattern of abusive, controlling, punishing behavior puts the children at risk of being used as the tools to continue this conduct." The court also found that "[c]ontrary to his representations at the previous trial, the father has spent significant time in India since that trial. He lived and worked there for at least two years."
In addition to the court's earlier finding that India is a non-signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), the court made findings about the legal impediments to effectuating return of children abducted to India by a parent. Based on exhibits admitted during Berry's testimony, the court found that abduction by a parent is not a crime in India, there is "no guarantee of enforcing a U.S. parenting order in India," such proceedings can take from six months to a year, and that the "custody order of a foreign state is only one of the factors which will be taken into consideration by a court of law in India." With respect to the profile testimony, the trial court found that the literature identified "profiles" or risk factors for abduction and that according to the literature, "[t]o the extent that families meet the criteria for more than one profile, the risk for abduction is probably increased." The court further found:
Respondent's behavior, including his behavior in 2002 as shown in Exhibits 39 and 40 and his emails in Exhibit 15, his bitterness towards Petitioner and the lack of resolution of difficulties between the parties show that he meets the criteria for several Profiles and "red flags" which indicate a risk of abduction by the father, which is against the best interests of the children.
Exhibits 39 and 40 were documents showing that in the summer of 2002, Brajesh designated the children in place of Lynette as insurance beneficiaries and designated his father in India as his emergency contact person.
Based on Brajesh's conduct and testimony, the court concluded it was not in the best interests of the children to remove the foreign travel restrictions and the restrictions were reasonably calculated to address the harm. Brajesh appeals.
ANALYSIS
The primary argument Brajesh makes on appeal is that the trial court erred in finding credible threats of abduction and imposing foreign travel restrictions under RCW 26.09.191(3). Brajesh also contends substantial evidence does not support the court's characterization of the e-mails. Brajesh argues that absent a finding of a substantial risk of abduction, there is no actual harm and the foreign travel restrictions are not warranted. In addition, Brajesh argues the court erred in denying his motion to exclude profile testimony.
A trial court's parenting plan decisions are reviewed for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). This court will not reverse its decision unless it was manifestly unreasonable or based on untenable grounds or reasons. Littlefield, 133 Wn.2d at 46-47. An appellate court will not retry the facts on appeal, and will accept findings of fact as verities if they are supported by substantial evidence in the record. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991). Evidence is substantial when there is a sufficient quantum of evidence "to persuade a fair-minded person of the truth of the declared premise." In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). "So long as substantial evidence supports the finding, it does not matter that other evidence may contradict it."Burrill, 113 Wn. App. at 868. This court does not review the trial court's credibility determinations, nor can it weigh conflicting evidence. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
Foreign Travel Restrictions
A trial court has the authority to impose limitations on visitation in a parenting plan under RCW 26.09.191(3) based on "factors or conduct as the court expressly finds adverse to the best interests of the child." RCW 26.09.191(3)(g). InKatare, we held that under RCW 26.09.191(3), the trial court has the discretion to impose foreign travel restrictions if the court expressly finds the parent's conduct justifies the imposition of the restrictions under RCW 26.09.191(3).Katare, 125 Wn. App. at 830-31.
Brajesh challenges the trial court's finding that Lynette's testimony that Brajesh threatened to take the children to India without her was "credible" when "viewed in conjunction with the testimony of others." Citing Group Health Cooperative of Puget Sound, Inc. v. The Department of Revenue, 106 Wn.2d 391, 399-400, 722 P.2d 787 (1986), Brajesh asserts that as a matter of law, the court erred in relying on hearsay statements of the corroborating witnesses cited by Waldroup in concluding that Lynette's testimony was credible. In Group Health, the court held that an expert can rely on otherwise inadmissible hearsay evidence for the limited purpose of establishing the basis of the expert's opinion. Group Health, 106 Wn.2d at 399; see also ER 703.
Moreover, while Brajesh asserts he is challenging only the evidence admitted in the 2009 evidentiary hearing, not the 2003 trial, the corroborating evidence was mentioned only in passing during the 2009 hearing. The court also explicitly states that its finding that the threats were credible was based solely on the evidence presented at the 2003 trial.
But here, unlike in Group Health, the evidence Brajesh objects to was introduced by him and admitted into evidence at his request during the cross examination of Lynette. Brajesh relied on the declarations to elicit the fact that both witnesses were close family friends who gave earlier statements which failed to specifically mention his alleged statements about taking the children to India without Lynette. Brajesh also used the exhibits to cross examine Waldroup, suggesting the possibility that the witnesses were coached by Lynette.
Although Brajesh refers to the statements of the corroborating witnesses as "unsworn," both declarations were made under penalty of perjury.
In arguing against the imposition of restrictions, Brajesh also brought these issues regarding the corroborating evidence to the court's attention.
An error is waived if the party asserting such error materially contributed to the error. In re Dep. of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995). We conclude that here, any error in relying on the corroboration of the sworn affidavits was waived.
Brajesh also contends substantial evidence does not support the trial court's characterization of the voluminous e-mail correspondence and its conclusion that the risk of abduction "has not abated." The court found that the e-mails demonstrate Brajesh's "extreme anger, abuse, unreasonableness, . . . poor judgment," and "utter disdain" for Lynette, and that "it is evident" he still "harbors resentment against the mother, which could manifest itself by an abduction of the children." Brajesh claims that the e-mails merely show continued "[b]ickering" between the parties and argues that the animosity is not one-sided.
The e-mails, including the specific examples cited by the court, are replete with examples that support the trial court's finding. The e-mails reveal Brajesh's unrelenting verbal abuse and anger. He calls Lynette "vindictive," "sick," a coward, an unfit parent, and refers to her family as a "bunch of losers." Brajesh tells her that "[the children] need to know in [the] future who eliminated their daddy from their lives," and "[h]opefully one day [Lynette and family] will answer to [the children] for depriving them of their heritage, culture and the fantastic life they could have enjoyed." Brajesh further states, "[A]ll signs point that they will know who robbed them as they grow older." Brajesh also constantly accuses Lynette of not acting "in the best interest of the children." Brajesh continually accuses Lynette of lying, referring to her as a "born lier [sic]," a "pathological liar," and a "compulsive" liar. The e-mail evidence also reveals Brajesh bringing the children into the parties' hostilities, for example, by threatening to show written exchanges to them. The court's characterization of the e-mail correspondence is amply supported by the evidence. The record also supports the trial court's conclusion that Brajesh's "pattern of abusive, controlling, punishing behavior puts the children at risk of being used as the tools to continue this conduct."
Substantial evidence supports the trial court's finding that Brajesh made credible threats to abduct the children and that "the father's testimony and conduct alone" supports the conclusion that the risk of abduction had not abated. The evidence also supports the trial court's finding that "it is not in the best interest of the children to allow them to travel with their father outside the United States such that they might be put in a position of being kept from returning to the United States."
Brajesh and the amici curiae argue the court misconstrued Indian law, overstated the seriousness of the consequences of abduction in India, and placed unjustified reliance on the fact that India is not a signatory to the Hague Convention.
The Fred T. Korematsu Center for Law and Equality, Asian Bar Association, and Vietnamese American Bar Association.
Foreign law is a fact which may be proved in Washington courts like any other fact. State v. Rivera, 95 Wn. App. 961, 966, 977 P.2d 1247 (1999) ("Foreign law is a fact issue that must be pleaded and proved like any other fact by the party relying on the foreign law."). Here, because the only evidence presented to the court on Indian law and the enforcement of foreign custody orders in Indian courts was uncontroverted, the record supports the court's findings regarding the consequences and seriousness of abduction to India.
To the extent that the two cases cited by the amici curiae contradict the court's findings regarding Indian courts' treatment of foreign custody orders, neither was brought to the attention of the trial court. See RAP 2.5(a) (a party waives its right to appeal issues not brought to the attention of the trial court).
Brajesh next contends that the court was not authorized to impose foreign travel restrictions under RCW 26.09.191(3) absent a finding of actual, rather than potential, harm. He claims that the court's order therefore fails to comply with the statutory requirements of the Parenting Act, chapter 26.09 RCW. However, RCW 26.09.191 authorizes limitations based on conduct or factors that may adversely affect the children's best interests. See Burrill, 113 Wn. App. at 871-72 (restrictions upheld under RCW 29.09.191(3)(e) based on abusive use of conflict despite evidence of only potential, not actual harm).
Brajesh relies heavily on In re Marriage of Wicklund, 84 Wn. App. 763, 932 P.2d 652 (1996). In Wicklund, the court held that the restrictions on a parent's behavior were not justified because there was no evidence that the prohibited conduct would be adverse to the best interests of the children.Wicklund, 84 Wn. App. at 770. By contrast, here, the court expressly found that the father's threats to abduct were credible and that the evidence showed the risk had not abated. These findings justified the trial court's decision to impose foreign travel restrictions as reasonably calculated limitations in the best interests of the children.
In sum, the court's findings are supported by substantial evidence and meet the requirements of the statue. The trial court, therefore, was within its discretion in imposing the travel restrictions.
Brajesh also reasserts the constitutional arguments he raised in the earlier appeals. The premise of his constitutional claims is that the foreign travel restrictions in the parenting plan do not comply with the statutory requirements under RCW 26.09.191(3). Because the court's imposition of the restrictions complies with the statute, we disagree with the premise and need not address these arguments again. We also previously considered and rejected the argument that the court had to quantify the level of risk.
Profile Evidence
Brajesh contends the court erred in denying his motion to exclude profile evidence as an indicator of likelihood of child abduction. Below, Brajesh argued the evidence was inadmissible and prejudicial, that Berry was not qualified to testify about psychological profiles, and the profile literature Berry relied on did not meet the Frye standard and was not accepted by the scientific community.
In allowing Berry to testify, the court stated that the testimony would assist it in understanding the "status of the literature." The court observed that it would, however, be responsible for making the "ultimate determination" on the risk of abduction and that the court was capable of giving "appropriate weight" to the evidence. The court also noted that it did not want to "hear much detail in the way of actual application" of the risk factors because the court was familiar with all the facts.
A trial court has broad discretion in admitting expert evidence and a party may introduce expert testimony if the expert is properly qualified, relies on generally accepted theories, and is helpful to the trier of fact. ER 702; Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004). However, an expert may not testify outside the area of his expertise and must have a sufficient factual foundation for his opinion.Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 104, 882 P.2d 703 (1994). Conclusory or speculative expert opinions that lack an adequate foundation should not be admitted. Davidson v. Mun. of Metro. Seattle, 43 Wn. App. 569, 571-72, 719 P.2d 569 (1986). "A trial judge is presumed to be able to disregard inadmissible evidence." State v. Melton, 63 Wn. App. 63, 68, 817 P.2d 413 (1991).
In support of Lynette's position at the hearing that if the foreign travel restrictions were modified, the court should impose a substantial bond and other safeguards, Berry testified about the legal impediments, difficulty, and expense involved in retrieving children unlawfully retained in foreign jurisdictions. Berry had some expertise in this area based on his work on child abduction litigation in foreign jurisdictions, although not specifically in India. During Berry's testimony, Lynette admitted into evidence several publications pertaining to international parental abduction and Indian law. Brajesh did not object to this evidence. Four of the publications contained lists of "risk factors" or "profiles" for identifying a risk of abduction.
These publications consisted of the following: Patricia M. Hoff, Am. Bar Ass'n, Ctr. on Children the Law, Parental Kidnapping: Prevention and Remedies (2000); Janet R. Johnson et al., Early Identification of Risk Factors for Parental Abduction, Juvenile Justice Bulletin, March 2001, at 1; J. Robert Flores, Office of Juvenile Justice Delinquency Prevention, Family Resource Guide on International Parental Kidnapping (2007); and Hoff, Nat'l Ctr. for Missing Exploited Children, Family Abduction-Prevention and Response (2002).
Berry then proceeded to testify about Indian law and about various "risk factors" or psychological "profiles" for identifying a risk of abduction as described in the publications. The risk factors Berry testified about included such factors as existence of "strong emotional or cultural ties to the country of origin," "[f]riends or family living in another country," a "history of marital instability," and "[n]o strong ties to the child's home state." Berry briefly testified about whether particular risk factors identified in the literature were present in this case. On cross examination, Brajesh elicited testimony in support of his position that he did not match any of the profiles and none of the identified risk factors were present.
We hold the court abused its discretion in admitting the testimony about risk factors and profiles. There was no foundation for Berry's profile testimony, nor did Lynette establish that the testimony met the Frye standard because there was no showing that it was based on established scientific methodology. Because the evidence was inherently speculative and unhelpful, it was inadmissible under ER 702. The evidence was essentially akin to profile evidence, inadmissible in criminal proceedings, and was more prejudicial than probative.
In re Det. of Thorell, 149 Wn. 2d 724, 756-58, 72 P.3d 708 (2003), where in the context of sexually violent predator commitment proceedings, the court upheld the use of actuarial assessments to predict future dangerousness, is not analogous. Unlike the challenged evidence in Thorell, the evidence here did not amount to an individualized assessment of risk.
ER 702 provides:
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, expertise, training, or education, may testify thereto in the form of an opinion or otherwise.
Lynette failed to establish that Berry had any expertise in predicting abduction, or that the risk factors had a valid, scientific basis. For this reason, the expert testimony lacked adequate foundation. "It is apparent that where opinion testimony is given by a witness who is not qualified to testify to such an opinion, the testimony given is, by definition, not helpful to the finder of fact." In re Det. of Pouncy, 144 Wn. App. 609, 624, 184 P.3d 651 (2008). Thus, the evidence was also not relevant, nor helpful to the trier of fact.See ER 401; see also ER 702.
And most significantly, as Brajesh pointed out below, the evidence about risk factors was analogous to inadmissible profile evidence. Profile evidence identifies a group of people as more likely to commit a crime, and is inadmissible if it is used to lead to the conclusion that a defendant must have committed the charged crime because he shared the characteristics of known offenders. State v. Braham, 67 Wn. App. 930, 936-37, 841 P.2d 785 (1992) ("[P]rofile testimony that does nothing more than identify a person as a member of a group more likely to commit the charged crime is inadmissible owing to its relative lack of probative value compared to the danger of its unfair prejudice."). Profile evidence is inadmissible because it is essentially unhelpful in determining whether a particular individual committed the charged crime. Likewise, here, the evidence about "profiles" of abductors was not probative because it did not assist the trier of fact to determine whether, and to what extent, Brajesh presented a risk of abduction. We hold that the testimony was inadmissible and the trial court abused its discretion in admitting and considering the testimony.
Brajesh asserts that even assuming validity of the factors, the "central issue is the application of these factors to [him]," and challenges Berry's testimony that certain factors applied to him. The trial court did not, however, adopt Berry's risk factor analysis. Berry testified that numerous risk factors applied, including the existence of strong ties to country of origin, lack of ties to children's home state, lack of a financial reason to stay in the area, and suspicions or concerns about abuse, which the trial court did not rely upon as existing risk factors. The trial court did not identify any of these factors as creating a risk of abduction and, it appears, largely disregarded Berry's opinion about which risk factors applied.
And without regard to any reliance on the impermissible profile testimony, the court found that Brajesh's "testimony and conduct alone" supported the foreign travel restrictions. The court found that a risk of abduction still exists based on Brajesh's conduct and behavior, his apparent anger, and demonstrated "willingness to punish," independent of any risk factor analysis. Those findings are supported by the evidence, and the court's findings support the imposition of the RCW 29.09.191 restrictions.
Because we affirm, it is unnecessary to consider arguments about remanding to a different trial court judge. Also, although Brajesh assigns error to the trial court's failure to timely rule on Lynette's fee application, because he does not include any argument or authority supporting the claim of error in his brief, we do not address the claim of error.See RAP 10.3(a)(6).
Attorney Fees
Lynette requests fees, citing In re Marriage of Greenlee, 65 Wn. App. 703, 829 P.2d 1120 (1992); RCW 26.26.140; and RAP 18.9. She argues that fees are justified because this is Brajesh's third appeal and asserts that he has raised variations of the same arguments in each appeal. The appeal is not frivolous and Lynette has not shown intransigence. Under RCW 26.09.140, this court may award attorney fees in its discretion, balancing the needs of one party against the other's ability to pay. We have considered the financial affidavits submitted by the parties, and also decline to award fees under RCW 26.09.140.
We affirm.