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supports the proposition that the Legislature gave the courts authority todelegate [decisions about frequency of visitation]”); see also, WASH. REV.CODE ANN. §26.09.187(3)(b) (specifically mentioning the best interests ofthe child). In cases involving GALs, the Washington legislature asks courtsto “match a child with special needs with a guardian ad litem who hasspecific training or education related to the child’s individual needs.”WASH. REV. CODE ANN. §26.12.175(1)(a). However, a court may alsodisregard the recommendations of a GAL. In re Marriage of Magnuson,141 Wn. App. 347, 350-51, 170 P.3d 65 (2007).B.Special Needs Cases, Like This Case, Are Uniquely ChallengingAutism is a lifelong developmental disability, which impacts verbaland nonverbal communication, social comprehension and interaction, andother areas of functioning. Daniel W. Hoover & Joan Kaufman, Adversechildhood experiences in children with autism spectrum disorder, 31PSYCHIATRY.COMautismCO-128, 129 (Mar. 2018) (hereinafter Hoover). Hallmark iors,communication abnormalities, disturbances in social and language skills,repetitive activities, stereotyped movements, lack of empathy or reciprocity,difficulty with relationships and understanding group dynamics, inability torecognize facial expressions, difficulty trusting, resistance to change, andsensory defensiveness to stimuli (such as oversensitivity) which can causeeasily and highly stressed feelings. Sheila Jennings, Autism in Childrenand Parents: Unique Considerations for Family Court Professionals, 435

FAM. CT. REV. 582, 582-83 (2005) (hereinafter Jennings). Autism is notsimply a mental illness or an intellectual disability; it impacts most areas offunctioning, with severity depending on location on the spectrum of autisticdisorders. See generally Autism Spectrum Disorder, NAT’L INST. d/index.shtml (hereinafter NIMH).Autistic children, regardless of disorder severity, often have aheightened need for environmental control, consistency, and stability.Jennings, at 586. This is also true for B.W., who requires transition overtime. RP 379-84. He began engaging in self-harming behaviors after courtordered changes to his residential schedule based on a GAL’srecommendations which conflicted with the recommendations of histreating physicians and experts in the field. RP 1335-36; CP 1465.Often, autistic individuals, like B.W., need an extraordinary level ofcare and support, as evidenced by the significant amount of care he hasneeded. See NIMH; Daniel B. Pickar & Ronbert L. Kaufman, ParentingPlans for Special Needs Children: Applying a Risk-Assessment Model, 53FAM. CT. REV. 113, 127 (2015) (hereinafter Pickar); CP 1433-34. Childrenwith autism can also be at greater risk for abuse and the “negativeconsequences of abuse,” and therefore represent a particularly vulnerablepopulation. David S. Mandell, et. al., The prevalence and correlates ofabuse among children with autism served in comprehensive community6

based mental health settings, 29 CHILD ABUSE & NEGLECT 1359, 1368(2005); see Hoover, at 131.C.Courts Should Use Their Discretion to Weigh Input of CurrentTreatment Providers and Experts Over Other Recommendations for aParenting Plan, Especially in Special Needs CasesThere has been a dramatic increase in custody cases involvingchildren with disabilities. Pickar, at 113. Judges are placed in a challengingposition where they are expected to make a decision about the best interestof the child at issue, often without having the necessary and unique trainingto make these decisions. This burden is especially heavy in cases whereparents do not agree on a parenting plan, like this case.Although they are encouraged to educate themselves on the specificmedical needs of each case, Margaret Price, Special Needs and Disabilityin Custody Cases: The Perfect Storm, 46 FAM. L.Q. 177, 181 (2012)(hereinafter Price), judges also have broad discretion to consider expertvoices to determine what serves the best interest of a particular child. Seee.g., In re Marriage of Littlefield, 940 P.2d 1362, 1373 (Wash. 1997); In reDependency of J.A.F., 278 P.3d 673, 670 (Wash. Ct. App. 2012);Kirshenbaum v. Kirshenbaum, 929 P.2d 1204, 1208 (Wash. Ct. App. Jan.27, 1997) (“Courts frequently rely on the recommendations of mental healthprofessionals in fashioning and making alterations to visitationschedules.”); 20 WASH. PRAC., FAM. AND COMM. PROP. L. §33:16. Becauseof the challenges presented by cases involving disabled children, “it ishighly recommended that family court judges use a variety of experts7

available to them,” including and not limited to “the child’s teachers,therapists, or other clinical professionals currently treating the child”because “[t]hese individuals can provide the clinical analysis needed toappropriately evaluate all of the information relevant to a final custodydetermination and parenting plan.” Hindi Mermelstein et al., Best Interestsof the Special Needs Child: Mandating Consideration of the Child’s MentalHealth, 54 FAM. CT. REV. 68, 75 (2016); see also ABA CHILD CUSTODYANDADOPTION PRO BONO PROJECT, A JUDGE’S GUIDE: MAKING CHILD-CENTERED DECISIONSavailableINCUSTODY CASES 49-50 (ABA, 2nd ed. oads/2017/10/judges guide.pdf. By appointing evaluators andreceiving testimony from the child’s treatment team and other experts,judges are in a better position to order a constructive plan for a child.Donald T. Saposnek, et. al., Special Needs Children in Family Court Cases,43 Fam. Ct. Rev. 566, 571 (2005).The court in 2015 in this caseappropriately relied on the recommendations of experts who were able toaccount for B.W.’s special circumstances in crafting a parenting plan,instead of relying solely on the input of the GAL and the ParentingEvaluator. CP 130, 1574-76. In 2015, the court specifically mentioned theinput of testimony from treating physicians, Dr. Orlich and Dr. Stobbe,giving their testimony weight in the parenting plan. CP 130-31. There isno negative downside for this Court to consider the updated input fromautism experts and B.W.’s current treatment providers while making a8

decision about B.W.’s parenting plan and custody arrangement. Indeed, itis necessary to ensure the best interest of B.W. is served.II.A COURT-APPOINTED GAL SHOULD BE REQUIRED TOCONSIDER CURRENT MEDICAL PROVIDER OPINION AS PARTOF THE MANDATE TO SERVE THE CHILD’S BEST INTEREST,WHICH DID NOT OCCUR IN THIS CASEGuardians ad litem also have a duty to operate under the best intereststandard. WASH. REV. CODE ANN. §26.12.175(1)(b). “In the case of a childwith special needs, the representative [GAL] has a duty of vigorous,specific, knowledgeable advocacy to ensure that a child with such needsreceives appropriate services to address the physical, mental, ordevelopmental needs.” John Crouch, The Child’s Attorney, 26 WTR FAM.ADVOC. 31, 32 (2004). This means that a GAL must consider all the bestmedical input available in a special needs case, in order to best respond tothe unique needs of a particular child. Where a GAL does not have expertknowledge of a child’s special needs, the GAL should defer to the treatingphysicians and experts in the field, and, if not, the court should exercise itsdiscretion to prioritize the opinions of experts and current doctors whosetraining can overcome that gap.If no specially trained GAL is available to the court, the appointedGAL is expected to become informed about the case, the specific needs ofthe children, and review material sources, including the views of treatmentproviders. Elizabeth A. Turner, 4A WASH. PRAC., R. PRAC. GALR 2 (7thed.) (hereinafter GALR 2); Pickar, at 115. Courts maintain list of personsqualified to serve as GALs. To be eligible for such a registry, the GAL must9

present a written statement providing evidence of their “[s]pecific trainingor education related to child disability or developmental issues.” WASH.REV. CODE ANN. §26.12.175(3)(d).Once appointed, the GAL is paid to “investigate and report factualinformation regarding the issues ordered to be reported or investigated tothe court.” WASH. REV. CODE ANN. §26.12.175(1)(b). The purpose of aGAL is to increase the likelihood that a child’s best interest will be served.Id. A GAL must “make reasonable efforts to become informed about thefacts of the case and to contact all parties” and impartially “examinematerial information and sources of information, taking into account thepositions of the parties.” GALR 2; see also In re Marriage of Bobbit, 144P.3d 306, 314 (Wash. Ct. App. Jul. 25, 2006) (“It has long been a concernof the legislature that GALs . . . work fairly and impartially . . . [the GALRs]are intended to assure that the welfare of children whose parents areinvolved in litigation concerning them remains the focus of anyinvestigation and report”). Washington law requires that “[i]f a childexpresses a preference regarding the parenting plan, the [GAL] shall reportthe preferences to the court.” WASH. REV. CODE ANN. §26.12.175(1)(b).GALs must not omit this information in their reports, nor create falsenarratives. It is more than reasonable to require GALs to include fullopinions of treating physicians and experts in their reports about childrenwith disabilities like B.W.10

The same standard should be applied to a parenting coordinator.The Association of Family and Conciliation Courts Model Standards ofPractice recommend stringent practices for parenting coordinators.Aparenting coordinator should complete continuing education on issues ofdisability, especially as it relates to the willingness of parents to coparentand coordinate care. Guidelines for Parenting Coordination, Ass’n ofFamily and Conciliation Cts. 5, Appx. A, p. 7 (2019), available s/Guidelines%20for%20PC%20with%20Appendex.pdf?ver 2020-01-30-190220-990.The firsttwo guidelines that a parenting coordinator is encouraged to follow are thoseof competency and impartiality. Id., at 3-5.The roles of parenting coordinators and GALs are similar in thatboth are required to assist in achieving the best interest of the child in eachcase. To that end, both roles require observing a family, gaining expertopinion, and using all resources necessary to make recommendations to thecourt in the best interests of the child. Where parenting coordinators andGALs similarly function to inform and prepare the court to make a decision,they should be held to similar standards of having professional knowledgeand training with respect to the unique issues of a case.The GAL’s 2017 report recommendations were not in B.W.’s bestinterest.In the original 2015 trial, the court rejected the GAL’srecommendations, giving Dr. Ahmed the majority of visitation time anddecision-making authority, in favor of B.W.’s treatment providers and11

experts' input about B.W.’s best interests. CP 44-53; CP 131. The GAL in2017 and 2018 filed lengthy reports, underscoring one parent’s complaintsabout the other parent’s parenting style while disagreeing with medicalprovider assessments that B.W.’s stress-induced behaviors stemmed fromaltering his schedule. RP 424, 1595-96; Ex. 61 (000771-775). Bothchildren also indicated to the GAL that they were doing well with the 2015schedule Dr. Wahan sought to upend, but the GAL did not include this inthe 2017 interim report. RP 1700-1701. Rather than seek current provideropinion, the GAL relied only on specific portions of the 2015 trialtranscript mainly the father’s testimony rather than the mother’s and yearsold evaluations. RP 1324; RP 1710; CP 279-357. Current providersindicated that no changes should be made to the custody arrangement,highlighting B.W.’s disability-driven need for stability. RP 497, 1288; Ex.62 at 10-11. In fact, B.W.’s progress has significantly halted and regressedsince the new plan introduced variable scheduling. CP 2247-57. Despitethe significant level of evidence from past providers, and what would havebeen found if current providers were involved in the GALs report, the GALrecommended the entire arrangement be upended. Ex. 61 (785, 798). Hadthe views of the professionals currently involved in treating B.W. beenprioritized over the GAL’s recommendations, it would have been clear in2018 that B.W.’s best interest required returning to the stability of the 2015parenting plan.12

GALs “can provide an essential voice for the child,” particularlywhen the child has a disability, by diligently putting the child’s best interestahead of everything. Price, at 173. Sadly, the GAL did not do so in thiscase, and the best interest of the child can only be served if this Courtexercises its discretion to rely on relevant experts instead.III.PRIORITIZING THE OPINIONS OF EXPERTS ANDCURRENT MEDICAL PROVIDERS IN CASES OF SPECIALNEEDS IS IN ACCORD WITH CURRENT SCIENTIFICRESEARCH AND WASHINGTON’S COMPELLING INTEREST INCHILD PROTECTIONWashington state has a compelling interest in protecting children.See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)(It is clear that a state’s interest in “safeguarding the physical andpsychological well-being of a minor” is “compelling.”); New York v.Ferber, 458 U.S. 747, 756-57 (1982) (“First. It is evident beyond the needfor elaboration that a State’s interest in ‘safeguarding the physical andpsychological well-being of a minor’ is compelling.”) (quoting GlobeNewspaper Co., 457 U.S. at 607); Ashcroft v. Free Speech Coal, 535 U.S.234, 263 (2002) (O’Connor, J., concurring) (“The Court has longrecognized that the Government has a compelling interest in protecting ourNation’s children.”); Troxel v. Granville, 530 U.S. 57, 60 (2000) (The Courtmay “grant such visitation rights whenever ‘visitation may serve the bestinterest of the child.’”) (citing WASH. REV. CODE ANN. §26.10.160(3)); Inre Rankin, 458 P.2d 176, 179 (Wash. 1969) (“[T]he primary concern of thecourts is always the welfare of the child.”). Children with disabilities areespecially vulnerable to abuse, neglect, and maltreatment.13Children’s

Bureau, The Risk and Prevention of Maltreatment of Children WithDisabilities, CHILD WELFARE INFO. GATEWAY 1, 1 (Jan. 2018), available ourts are one of many institutions in Washington that are chargedwith an elevated level of care to protect the interests of children withdisabilities and unique needs.See WASH. REV. CODE ANN.§26.12.175(1)(a); Protecting Students with Disabilities, U.S. atforchildren with disabilities in education); Children and Youth with SpecialHealth Care Needs, Wash. State Dept. of Health (last visited Mar. renwithSpecialHealthCareNeeds (provisions for specialneeds children in Washington healthcare); Childhood Maltreatment amongChildren with Disabilities, CDC (Sept. 18, 2019), available buse.html. Washingtonrecognizes that children with disabilities in family court settings, like B.W.,should not be forced to suffer costs of their unique needs, merely becausethose needs diverge from commonly understood “best interests.”Washington courts have the discretion to consider expert testimony andcurrent medical provider recommendations to assess the best interests of achild. Littlefield, 940 P.2d at 1373. The best interests of the disable child14

in this case requires this Court to return to the parenting plan that was basedon medical and expert opinion, and to reject the GAL plan that put B.W. atrisk of self-harm and the downward trajectory he has been suffering.CONCLUSIONFor the foregoing reasons, Amicus Curiae asks this Court to void thecurrent parenting plan and return to the 2015 parenting plan, for the purposeof serving the best interest of B.W. based on the best science.Dated: March 30, 2020Respectfully submitted,By:Christopher E. Love, WSBA No. 42832Attorney of RecordPFAU COCHRAN VERTETIS AMALA911 Pacific Avenue, Suite 200Tacoma, Washington 98402Tel: (253) [email protected] A. Hamilton, Esq.CEO & Academic Director, CHILD USARobert A. Fox Professor of PracticeUNIVERSITY OF PENNSYLVANIA3814 Walnut Street, Philadelphia, PA 19104Tel: (215) [email protected]

CERTIFICATE OF SERVICEI declare that on the date noted below I caused a copy of theforegoing Motion for Leave to File Amicus Curiae Brief by CHILDUSA to be served via the Washington Courts E-Portal:Counsel for Appellant/Cross RespondentPatricia Novotny3418 NE 65th Street, Suite ASeattle, WA 98115(206) 525-0711Counsel for DefendantsSidney C. Tribe,WSBA #33160 CARNEY BADLEY SPELLMAN, P.S.701 Fifth Avenue, Suite 3600Seattle, Washington 98104-7010Telephone: (206) 622-8020Facsimile: (206) 467-8215Ca

RP 497, 1288. In fact, Dr. Golombek attributed much of B.W.'s stress to the changes the court made to his schedule in early 2018. RP 424. Conversely, the GAL disagreed that the schedule change caused anxiety for B.W., attributing his stress to other sources. RP 1595-96. In December 2018, the trial court entered an order