HearSay
THE OFFICIAL MAGAZINE OF THE CLARK COUNTY BAR ASSOCIATION
June 2024
JESSE
Clark County, WA Bar Association
OTLA Guardian
WSAJ Eagle DON JACOBS
Trial Lawyer of the Year, Clark County (2015)
The Clark County Bar Association is a professional organization that serves to support our local attorney community through providing education and networking opportunities designed to enhance and foster better relationships within the local legal community.
June Hearsay Contributors
Josh Sherman
Jane Clark Legal
Josh Sherman dedicates his practice to medical malpractice cases. Josh is admitted to practice law in Washington and Oregon, and he regularly litigates cases in both states.
Krystle Nixon
Wheeler Boyd
Krystle is a Paralegal at Wheeler Boyd, specializing in Family Law. In her spare time, she is either studying for the APR 6 program, or spending time with her husband and two pups.
Jean Mccoy Landerholm, P.S.
Jean McCoy’s practice focus is real estate transactions and conflict resolution, landlord/tenant and creditors’ rights.
honorable
scott collier (ret.) of counsel
Mediation and Arbitration for Civil Matters
Judge Scott Collier (Ret.) brings his broad judicial experience and extensive knowledge of the law to help individuals reach effective and mutually beneficial solutions that protect what they value most.
information and scheduling
call: (360) 830-6961 email: mediation@mckinleyirvin.com
B A D E I C L E : R a i s i n g t h e B a r : I d e a s o n H o w t o M a k e
W a s h i n g t o n ’ s L e g a l C o m m u n i t y M o r e A c c e s s i b l e ,
E q u i t a b l e , a n d D i v e r s e
July 17, 2024
12:00pm - 1:30pm
Zoom
1
R E E !
T h e D E I C o m m i t t e e ’ s 2 0 2 4 * F R E E * S u m m e r C L E w i l l b e h e l d
v i r t u a l l y , o n J u l y 1 7 , 2 0 2 4 , f r o m n o o n t o 1 : 3 0 p . m . T h i s y e a r ’ s C L E
i s t i t l e d , “ R a i s i n g t h e B a r : I d e a s o n H o w t o M a k e W a s h i n g t o n ’ s
L e g a l C o m m u n i t y M o r e A c c e s s i b l e , E q u i t a b l e , a n d D i v e r s e . ”
T h i s t o p i c c o u l d n ’ t b e m o r e t i m e l y , a s t h e W a s h i n g t o n S t a t e
S u p r e m e C o u r t r e c e n t l y a n n o u n c e d u p d a t e s t o t h e
Presented by: Justice Raquel Montoya-Lewis, Terra Nevitt, and Brent Williams-Ruth C l i c k h e r e t o r e g i s t e r !
W a s h i n g t o n S t a t e B a r E x a m r e q u i r e m e n t f o r a t t o r n e y s , b a s e d
( i n p a r t ) o n t h e r e p o r t o f a n i n v e s t i g a t i v e T a s k F o r c e . T h e D E I
C o m m i t t e e i s i n c r e d i b l y l u c k y t o h a v e w e l l - v e r s e d s p e a k e r s f o r
t h i s C L E , a l l h a v i n g b e e n i n v o l v e d w i t h t h e T a s k F o r c e ,
i n c l u d i n g W A S u p r e m e C o u r t J u s t i c e ( a n d T a s k F o r c e C o -
C h a i r ) R a qu e l M o n t o y a - L e w i s , W S B A E x e c u t i v e D i r e c t o r T e r r a
N e v i t t , a n d W S B A G o v e r n o r A t - L a r g e B r e n t W i l l i a m s - R u t h . T h i s
C L E w i l l d i s c u s s t h e h i s t o r i c a l c o n t e x t o f m i n o r i t i e s s e e k i n g b a r
a d m i s s i o n , p r o v i d e a
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Impacts of Substance Use Disorder on Child Custody Cases
by Krystle Nixon
If you were to ask family law attorneys what the toughest issue is to resolve, the answer is easy… custody disputes. Dividing assets/debts and determining spousal support is simple, it just comes down to numbers and figuring out what is a fair and equitable division. When you add in the complexity of children, emotions become high and you see parents compromise their values in an effort to convince the Court why they should be primary parent.
What happens when one parent struggles with substance use? Our family law bench was happy to share their views on substance abuse and how it affects their decisions when ruling on a Parenting Plan.
First and foremost, it is important to be sensitive to the issue and show support to reduce the potential of relapse or the feeling of shame. Be attentive to the words you use in your pleadings.
Common terms used:
Substance Abuse
Try this instead:
Substance use Disorder
“clean” sober
“dirty” positive
Relapse return to use
Substance use disorder includes both legal and illegal substances. We commonly see allegations of substance use disorder when it interferes with the performance of parenting functions. A parent should not bring claims of substance abuse if the parent uses a substance when the child(ren) are not in their care and it is not interfering with their parenting functions.
RCW 26.09.004(2) “Parenting functions” means those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include:
(a) Maintaining a loving, stable, consistent, and nurturing relationship with the child;
(b) Attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
(c) Attending to adequate education for the child, including remedial or other education essential to the best interests of the child;
(d) Assisting the child in developing and maintaining appropriate interpersonal relationships;
(e) Exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and
(f) Providing for the financial support of the child.
The bench does not want to see a party weaponize a person’s admittance to their return to use as tool to hault custody. It is encouraged the parent give some grace and help work with them during the challenging time. It takes a lot to admit a return to use. If the other parent is going to use that admittance to take parenting time away, then the parent struggling with use may not be so forthcoming if there is another return to use in the future. The bench wants to see parents be allies and help support one another for the sake of their child(ren).
If you have a case where a parent has substance use disorder, propose reasonable schedules. The bench wants to see parents and their child(ren) continue to have a relationship. Consider some of the following:
• Require the parent to provide proof of 90 days of sobriety through UA or Hair/Nail testing.
• If there is credible evidence of substance use, propose supervised visits for six to ten weeks
• There should be UA tests required prior to and immediately after each of the parent’s visit.
• Consider phased-in parenting time to help transition back to the normal visitation schedule if a parent’s time has been reduced due to substance use
• Propose the parent to attend support group therapy (like AA) and work with a sponsor
• Random UA tests at the other parents’ expense. If the UA shows the parent is sober then the parent who requested the test pays the testing fees. If the UA shows the parent is positive for substance(s), then that parent is responsible for the testing fees.
• Use of Soberlink at the expense of the parent alleging use of substance.
If your client is being accused of substance use and you need to prove sobriety, you can request the court to issue a voucher for Advanced Diagnostics (ADS) that will reduce the costs for drug testing. Does the Court give different weight based on the various drug testing methods? There are no endorsed testing facilities, methods, or devices. However, an observed UA test has more weight than a nonobserved UA test. UA tests that are done overtime can show a tapering-off which can be useful to the court. A helpful reminder, Hair/Nail tests will show longer periods of time and a history of use.
When will the court consider appointing a GAL, Family Court Services or other parenting evaluations? The court is going to look at the number of issues, the severity of each issue, the number of people involved, the anticipated timeline and the costs for such evaluation versus the parties available resources. It is important to remember that humans make mistakes and proper support we can overcome those mistakes. We need to treat each other kindly with dignity and respect and ultimately do what is best for the children without compromising their safety.
Left to right: Steven Hogue, Amy Price, Erik Selden (Team Leader), Bryan Dent, Phil Czajka
Clark County Superior Court
BENCH/BAR COMMITTEE MEETING MINUTES
May 14, 2024
Persons in attendance: Nicholas Alexander (nick@vancouverwillsandtrusts.com) Gabrielle Richards (gabby@cascadialawyers.com), Rachel Brooks (rachel@guardianship-law.com), Curtis Welch (cwelch@sussmanshank.com), Jeffrey Keddie (jeffreyk@nwjustice.org), Dan Lloyd (Dan.Lloyd@ cityofvancouver.us), and Judge Fairgeive (John.Fairgrieve@clark.wa.gov)
If you have matters that you would like to bring to the attention of the Bench/Bar, you are welcome to contact the above-mentioned members of the committee.
OLD BUSINESS:
None.
NEW BUSINESS:
Gabrielle Richard: Had great annual meeting – Guardianship Section is hosting a social June 4, at the AC hotel on the waterfront. Open to members, CPG and CV. More CLE are being planned.
Rachel: Changes to the UGA and other PA modifications so important to attend to get your voice heard. Membership is $20.00
Rachel Brooks: Pleasure to watch the guardianship group – get involved!
Jeffrie Keddie: We moved! Moved to the arts building, 1104 main street. I want to put in a plug for the garden party (CCVLP) happening June 15, looking for sponsors for event, it is at Pomeroy Farm from 11 am – 2 pm. Farm-fair type of event. $50 adults $20 kids. On the CCVLP’s website if you’re seeking more information.
Judge Fairgrieve: Court annex is going to be moved into the courthouse, District Court will be moving to old city building; The site would work better for them. Structurally it makes sense that all Superior Court functions in the courthouse with District Court moving to the city building. From an efficiency standpoint it should work out better. All of this takes time, but should be a better situation. At least a year out before District Court makes the move.
New Dir of Public Defense Christohper Swaby. He has substantial experience, will start July 1. My understanding is that his 1st order of business will be to hire staff (attorneys, support staff etc.). County plan is going to assign cases to attorneys, plan to grow office and will wind down reliance on indigent defense contract. There will always be a need for contractors (conflict attorneys) but that process is well underway.
Last Friday Ms. Stone resigned, accepted position with tribal court. Recruiting process for new Superior Court admin. Whitney Freese and Joseph Johnson will be point of contact for Superior Court admin in the meantime.
12 judge position for our county was approved, so there will be a new judge on the bench. The SC has been engaged in internal discussion to discuss issue of how best to use
judges’ time. If attorneys have options or recommendations to spend additional judicial resources, you can send me an email or Judge Vanderwood. We (judges in the small group) will meet June 21 and make recommendations (to the larger group) to the other Judicial Officers. No timeline on when the 12th judge will be coming on-board, hopefully sometime in the Fall.
In custody change of plea. During COVID we adopted non-face-to-face systems of process, which was a zoom supported change of plea. Now we are past COVID, so criminal defense bar is asking to go back to in-person change of plea/sentencing, which can be obliged now that jail is full staff and can support it. June 3 we are going back to in-person change of plea at G-1. We have a big backlog of serious cases that we were not able to be tried. Major ones taking place right now, and likely thorough the fall.
UD docket is a challenge for us, Civil Protection Order docket also somewhat of a problem as the volume is immense. Family Law judge is doing the drug court, so that does not make sense. We are looking at the 12th judge fits in best.
MEETING ADORNED 12:31 pm.
Respectfully Submitted,
Nicholas Alexander
