COX, J.
¶ 1 Amy Kozel appeals the trial court's order denying her motion to intervene in this wrongful death of a child action by Steven Bunch, the personal representative of the child's estate and the child's father. On this record, the trial court did not abuse its discretion in denying Kozel's motion. We affirm.
¶ 2 The material facts are largely undisputed. They are documented in this record by two declarations, one from each of the deceased child's parents.
¶ 3 In October 1992, Ashlie Bunch was born to a substance addicted mother.
¶ 4 Thereafter, Bunch moved to Washington. Ashlie and her younger sister remained in Florida with Kozel for the next two years. At some point, Ashlie began to suffer from mental illness. During that time, Bunch regularly paid child support for both children and visited them annually.
¶ 5 In 2003, Kozel sent Ashlie to live with Bunch in Washington after she began to exhibit abusive behavior toward her younger
¶ 6 In January 2008, while in the residential care of McGraw Center, fifteen-year-old Ashlie took her own life.
¶ 7 More than a year after Ashlie's death, Bunch, individually and as personal representative of Ashlie's estate, commenced this wrongful death action against McGraw Center and others. He claimed, among other things, a permanent loss of parent-child consortium under RCW 4.24.010. That statute permits the mother, father, or both, of a minor child to sue for that child's death, provided the parent "has regularly contributed to the support of his or her minor child."
¶ 8 Bunch did not join Kozel to the action. However, pursuant to the provisions of RCW 4.24.010, he provided her with written notice of the suit. Kozel moved to intervene based on her declaration and briefing. Bunch opposed her intervention with his own declaration and briefing. We discuss in more detail these submissions of the parties later in this opinion. The trial court denied the motion to intervene.
¶ 9 Kozel appeals the order denying her motion to intervene.
¶ 10 Kozel argues that the trial court abused its discretion in denying her motion to intervene. Specifically, she argues that she is entitled to intervene based on RCW 4.24.010 and CR 19. For the first time on appeal, she also argues that she is entitled to intervene based on CR 24.
¶ 11 We hold that she has failed to show that the trial court abused its discretion in denying her request to intervene based on either RCW 4.24.010 or CR 19. We do not address her new argument on appeal based on CR 24.
¶ 12 We review a CR 19 decision for an abuse of discretion, with the caveat that any legal conclusion underlying the decision is reviewed de novo.
The court also considers to what extent a judgment rendered in the person's absence might be prejudicial to them, and whether a judgment rendered in the person's absence will be adequate.
¶ 13 The goal of statutory interpretation is to carry out the intent of the legislature.
¶ 14 When statutory language is unclear, we may review legislative history to determine the scope and purpose of a statute.
¶ 15 RCW 4.24.010 provides in relevant part:
¶ 16 "`[C]auses of action for wrongful death are strictly a matter of legislative grace and are not recognized in the common law.'"
Because the legislature has defined who may sue for the wrongful death or injury of a child, this court may not alter the legislative directive.
¶ 17 This statutory cause of action requires a parent of a minor child to demonstrate that he or she "has regularly contributed" to the "support" of that child to be entitled to relief. Where, as here, these statutory terms are not defined by the legislature, we may examine the relevant statement of legislative intent and relevant case authority to assist us in determining legislative intent.
¶ 18 We turn first to the word "support." Both the 1998 statement of legislative intent accompanying the amendment of this statute and the relevant case authority are instructive.
¶ 19 In Guard v. Jackson,
Accordingly, we must read the current statute to define support to include "but not limited to emotional, psychological, or financial support."
¶ 20 This court's 2003 decision in Postema v. Postema Enterprises
¶ 21 Here, there is no dispute that both Bunch and Kozel regularly contributed to the support of Ashlie prior to their divorce in 2001. Likewise, they both regularly contributed to support her through 2003, when Ashlie moved to Washington to live with Bunch. The factual and legal dispute is whether Kozel regularly contributed to support Ashlie after 2003.
¶ 22 According to her declaration, Kozel "spoke with [Ashlie] regularly by phone, at least once a week, until she was admitted to inpatient facilities."
¶ 23 Kozel also testified in her declaration that she "sent [Ashlie] Christmas presents."
¶ 24 Bunch replied to Kozel's declaration with his own testimony. In his declaration, he testified that Kozel "did not provide any financial support from the time Ashlie came to live with me and [my wife], to the time of Ashlie's death."
¶ 25 Bunch also summarized his view of the contact between Ashlie and Kozel during the period from 2003 until Ashlie's death as follows:
¶ 26 Notwithstanding this detailed testimony from Bunch, Kozel neither refuted his assertions nor provided any further information regarding the nature and extent of her support of Ashlie. Thus, the record shows that Kozel did not provide any financial support to Ashlie after her move to Washington to live with her father in 2003. The record also shows there was only one five minute telephone communication between Kozel and Ashlie after March 2007 until her death in January 2008. The trial court was entitled to conclude from this record that Kozel failed to establish that she contributed to Ashlie's support, which includes but is not limited to "emotional, psychological, or financial support," after March 2007.
¶ 27 Consideration of support alone does not end our inquiry. We must shift our focus to the remaining question: whether Kozel demonstrated that she "
¶ 28 Here, Bunch's testimony that Kozel provided no financial support for Ashlie after 2003 is unrefuted. Additionally, the following testimony of Bunch is unrefuted:
¶ 29 In sum, Kozel has provided no evidence in this record to show that she "regularly contributed" to Ashlie's "support," as that word is broadly defined, after March 2007. This record also supports the determination that she did not "regularly" contribute to Ashlie's "support" between 2003 and March 2007. This failure is fatal to her claim that the trial court abused its discretion in denying her motion to intervene pursuant to CR 19 and RCW 4.24.010.
¶ 30 In an attempt to avoid these evidentiary and substantive deficiencies, Kozel makes several arguments. None of them are persuasive.
¶ 31 Kozel first argues that the use of the past tense both in the 1998 amendment to this statute and in the related statement of
¶ 32 This argument relies on a faulty premise: that a statement of legislative intent may contradict the plain language of a related statute. Here, RCW 4.24.010 states in relevant part:
¶ 33 The related statement of legislative intent states:
¶ 34 As this court stated in Postema, when construing the word "support" in this statute, "a court cannot use a statement of [legislative] intent to contradict the plain language of a statute."
¶ 35 We also reject her argument because the words in the statement of legislative intent on which she relies focus on a different issue: the scope of the word "support" in the context of the legislature dealing with a constitutional issue. The words "regularly contributed" are distinct from the scope of the word "support." Moreover, "regularly contributed" has nothing to do with the constitutional issue underlying the legislature's amendment of the statute in 1998.
¶ 36 The correct focus is on the legislature's use of the past tense in the statute— "has regularly contributed to the support of his or her minor child." The use of the word "has" imposes a temporal element. The right to sue for this statutory cause of action arises from "regularly" contributing to the support of one's minor child prior to the injury or death of that child, not at some later time. The question is whether this regular contribution of support prior to the death or injury of a minor child includes any other temporal element.
¶ 37 In Blumenshein v. Voelker,
¶ 38 In deciding that Blumenshein did not have standing under the statute, the court stated:
¶ 39 We agree with this reasoning. RCW 4.24.010 creates a statutory cause of action for either or both parents that did not exist at common law. Without the death of Ashlie, no claim for destruction of any parent-child relationship between her and either parent would exist. Thus, it is reasonable to strictly construe this statute, which is in derogation of the common law, to limit its application to a time at or near the time of the death or injury of the minor child.
¶ 40 More importantly, the legislature has taken no action in response to Blumenshein since that decision was handed down in 2004. In stark contrast, the legislature amended the former version of RCW 4.24.010 in 1998 in direct response to the 1997 Guard opinion from the supreme court. Had the legislature disagreed with Blumenshein's determination of legislative intent regarding the significance of timing, it could have amended the statute.
¶ 41 Accordingly, we reject Kozel's argument that the relevant time for purposes of "regularly contributing to the support" of one's minor child for purposes of this statute is "at any time" prior to the death of that child. Rather, we conclude that the legislature intended that either or both parents must show that they "[had] regularly contributed to the support" of the child at or near the time of the death or injury of that child.
¶ 42 Kozel also argues that strict construction of this statute is not necessary because it is for the jury to decide the differing contributions of the parents in deciding damages under the statute.
¶ 43 The damages portion of RCW 4.24.010 states as follows:
Kozel appears to argue that a broad reading of eligibility to intervene as a parent who "has regularly contributed to the support" of one's minor child is required because of the above language. Specifically, she claims that a trier of fact must determine the amount of damages based on just and equitable principles in the case of attenuated involvement of a parent in the minor child's life.
¶ 44 This argument is not persuasive. The trial court, in the exercise of its sound discretion, was charged with the responsibility of determining whether Kozel's CR 19 motion to intervene should have been granted. That function is distinct from the later determination by a trier of fact whether and to what extent to award damages to either or both parents. In short, there is nothing in this statute, CR 19, or any case authority that we are aware of to support this argument.
¶ 45 At oral argument, Kozel described several hypothetical situations that make our reading of the legislature's intent unlikely. These arguments are not persuasive.
¶ 46 First, the hypotheticals that she presented have nothing to do with the facts of this case, as evidenced by the record before us. Thus, her claim that the result in this case is unjust is not persuasive.
¶ 47 Second, as the supreme court stated in Philippides, the statutory cause of action established by the legislature here is not to be changed by the courts.
¶ 48 At oral argument, Kozel also claimed that the trial court applied its own thoughts on whether Kozel was a good mother in making its decision to deny her motion. Nothing in this record supports the view that the trial court made its decision on an improper basis. This argument is baseless.
¶ 49 Under CR 19, the court must determine whether a party is needed for the just adjudication of the action.
¶ 50 Kozel also claims a right to intervene under CR 24. She did not make this argument below. Consequently, we do not address it on appeal.
¶ 51 We conclude that the trial court properly exercised its discretion by denying Kozel's motion to intervene. She failed in her burden to show that she "[had] regularly contributed to the support" of Ashlie at the time of the child's death in January 2008.
¶ 52 Kozel argues for the first time on appeal that the trial court abused its discretion by failing to hold an evidentiary hearing to resolve disputed questions of fact. We disagree.
¶ 53 Here, Bunch asked the court to hold an evidentiary hearing for live testimony in order to resolve any conflicting evidence whether Kozel should be allowed to intervene.
¶ 54 Kozel cannot now complain that the trial court chose not to conduct an evidentiary hearing that she never requested. In such a case, there simply is no abuse of discretion by the trial court.
¶ 55 Moreover, the quotation showing her response to Bunch's request for an evidentiary hearing shows that she opposed such a hearing. In any event, if she desired to avoid travelling to Washington from Florida to attend a hearing, she offered no alternatives—telephone or video conference—to address the need she now claims.
¶ 56 The trial court committed no error in deciding this matter on the declarations and other submissions of the parties.
¶ 57 We affirm the order denying her motion to intervene.
WE CONCUR: DWYER, C.J.
BECKER, J., dissenting.
¶ 58 The majority holds that the statutory cause of action for wrongful death of a child, RCW 4.24.010, is available only to those parents who made regular contributions to the child's support at or near the time of the death or injury of that child. Majority at 572. I respectfully dissent. The temporal limitation is not found in the statute, it frustrates legislative intent, and it is based on a misreading of precedent.
¶ 59 Ashlie Bunch was born to a substance addicted mother. Ashlie and her sister, two years younger, were placed in foster care, where they were abused. Steven Bunch and his wife Amy Kozel adopted them when Ashlie
¶ 60 The parents divorced in 2001 when Ashlie was nine. Bunch moved to Washington State. Kozel remained in Florida with the two girls. Bunch visited twice. During this time, Ashlie began to assault her younger sister. Finally, Kozel decided she had to separate the two girls. In 2003, she sent Ashlie to live with her ex-husband and his new wife in Washington. Kozel Declaration at 1-2.
¶ 61 According to the complaint Bunch filed in 2007, Ashley was committed involuntarily to a mental health hospital when she was 14. By this time, she already had a long documented history of suicidal thoughts and plans. After this hospital stay, she was adjudicated as gravely disabled and sent to McGraw Residential Center for inpatient psychiatric treatment and care. She was diagnosed as being dangerous both to herself and to others. Complaint at 6.
¶ 62 During the six months Ashlie spent at McGraw before she died, she made frequent attempts to kill herself. The protocol for watching over her included five minute checks. She was to sleep with the door open and to have all strings and shoelaces removed. According to the complaint, the staff did not follow this protocol. On the night Ashlie took her own life, someone had given shoelaces to Ashlie at her request. Her door remained closed all night, and the monitoring logs were presigned to indicate five minute checks. Ashlie strangled herself with the shoelaces and died at about 4:30 a.m. Her body was not discovered until almost 8 a.m. Complaint at 8.
¶ 63 These allegations, if true, reveal the anguish that must have been experienced by all of the adults who had a hand in raising Ashlie. If her death was wrongful, I see no basis in the statute for limiting the right of recovery to the father simply because he was there for Ashlie's last four years of life. Surely, the mother who lived with Ashlie and cared for her from age 4 to age 11—two of those years as a single mother—is also entitled to make a claim. Kozel's declaration states, From the date I adopted Ashlie until the date I sent her to live with Steven, I paid for Ashlie's living expenses, housed her, clothed her, fed her, and gave her all the emotional and financial support I could. I was her mother in every respect. Clerk's Papers at 57. This is sufficient to give her standing to sue.
¶ 64 McGraw contends that to have standing, the mother must be able to show significant involvement with the child at the time of her death. The statute does not say this. It is true that a parent must have had significant involvement in the child's life in order to recover. Philippides v. Bernard, 151 Wn.2d 376, 384, 88 P.3d 939 (2004). But that involvement does not have to be contemporaneous with the injury or accident. The statute uses the past tense—A mother, or father, or both, who has regularly contributed to the support of his or her minor child. RCW 4.24.010. This language does not foreclose recovery by a parent who has made regular contributions to a child's support in the past, and then becomes geographically or otherwise separated from the child as a result of an event like parental divorce.
¶ 65 The majority gives inadequate weight to the legislature's own statement of intent. The intent of the legislature is to allow a parent to sue for wrongful injury or death of a minor child if the parent has had significant involvement in the child's life. LAWS OF 1998, ch. 237, § 1. The use of the past tense here is consistent with the statutory language has regularly contributed and should be interpreted to mean at any time before the child's injury or death. This interpretation does not contradict the plain meaning of regular. The majority finds a conflict where none exists.
¶ 66 A court may consider underlying legislative purposes, background facts, and statutory context to determine the plain meaning of a statute. Postema v. Postema Enters., Inc., 118 Wn.App. 185, 198 n. 30, 72 P.3d 1122 (2003). If statutory language is susceptible of two constructions—one of which will promote the purpose of the statute and the second of which will defeat it—courts will
¶ 67 The authority offered by McGraw and relied upon by the majority for a strict temporal limitation is Blumenshein v. Voelker, 124 Wn.App. 129, 100 P.3d 344 (2004). Blumenshein arose from a bicycle accident that injured five year old Felicia Felch in Spokane in July 1999. At the time, Felicia and her brother were living with their father. Their mother, Christina Blumenshein, was living in a homeless shelter in Seattle. Due to drug addiction, instability, and incarceration, Christina had very little contact with her children and paid no support. The father obtained a settlement on behalf of Felicia and released his own interests in it. The children were later placed in foster care. One and a half years after the accident, Christina Blumenshein straightened out her life, reunified with her children, and gained custody. In 2002, she filed a negligence action on behalf of her son and herself concerning the injury to Felicia. Her own claim was for loss of consortium under RCW 4.24.010. That claim was dismissed on summary judgment. On appeal, Christina asserted a theory of an after acquired right to sue based on her involvement with Felicia after the accident. It was in this context that this court said the legislature intended parent involvement to be viewed at the time of the accident, not some earlier or later time. Without the injury no claim could exist. Blumenshein, 124 Wash.App. at 135, 100 P.3d 344.
¶ 68 I believe Blumenshein's result is correct, and I do not disagree with the rationale so long as the statement about viewing parent involvement at the time of the accident is understood to mean that a court looks back from the time of the accident to see whether the parent ever regularly contributed support. That was all the court in Blumenshein needed to say because the record showed that the mother did not have significant involvement in Felicia's life until one and a half years after the accident. Blumenshein, 124 Wash.App. at 135, 100 P.3d 344.
¶ 69 The majority reads Blumenshein as directing a court to evaluate the quality of a parent's involvement at or near the time of the injury or death. While I do not believe this reading of Blumenshein is correct, Kozel should be allowed to litigate her claim even if it is. Blumenshein was decided on summary judgment, whereas the present case was decided on a motion to intervene. Kozel has not had the benefit of a record reviewed with all inferences being taken in the light most favorable to her. McGraw summarizes Kozel's involvement as follows: Kozel had not seen Ashlie in the five years preceding her death; she did not talk with Ashlie or her providers about her mental illness; she did not invite Ashlie to visit her; and notably, she did not attend Ashlie's memorial service after her death. McGraw also asserts that Kozel did not provide financial support to Ashlie after sending her to live in Washington. Bri. of Resp't at 17-18. In my opinion, such evidence goes to the question of whether Kozel suffered damage. It is far too one-sided to be accepted by a court as a basis for depriving Kozel of the right to make a claim. The brief record on appeal suggests that Ashlie was a danger to her sister; that Kozel's agreement to send Ashlie to Washington was an effort to protect the sister; that the parents dealt with their responsibility for financial support by each supporting one child; and that Ashlie was too sick to be invited for visits to Kozel's home in Florida. When a family has struggled with problems of this magnitude, it is superficial to judge the depth of a parent's emotional support by counting telephone calls and Christmas presents. Kozel's absence from a memorial service for Ashlie held on the other side of the country by her ex-spouse does not prove anything relevant to her standing in this matter.
¶ 70 I conclude Amy Kozel has standing to bring a claim for her daughter's death under