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Supreme Court recognizes harm to children exposed to domestic violence - parents can petition for Protection Orders

The scourge of family and intimate partner violence plagues every community and causes long-term physical and emotional injuries to victims and children. Despite strong legislative safeguards, judges across the state have been unwilling to grant the full protections of the Domestic Violence Prevention Act (DVPA). NJP’s statewide campaign to ensure families and children receive the full protections of law resulted in several court rulings that dramatically improve protections for Washington families.  

The June 29, 2017 unanimous Supreme Court decision in Rodriquez v. Zavala unequivocally establishes that exposure to domestic violence harms children and that a parent’s fear of harm for a child comes within the definition of “domestic violence” for purposes of a petition for a domestic violence protection order. See High court: Abuse victims can protect their kids from abusers - seattlepi.com and State Supreme Court says Tri-City judge got domestic violence ruling wrong - Tri-City Herald

 
The decision reversed the Court of Appeals affirming a Superior Court decision not to include a two-year old child in a DVPO.  The court cited lack of evidence of the child’s fear because he was asleep in the next room during a violent  assault on his mother.  The court rejected the mother’s petition based on her fear for her child.  

Construing the statutory definition of “domestic violence”, the Supreme Court made clear that excluding children from protection orders “because they fail to or cannot show fear of a harm they may not understand subjects them to violence the legislature expressly intended to prevent.”  The Supreme Court reviewed extensive literature on the harm to children and families from domestic violence to hold that “direct and indirect exposure to domestic violence is harmful” and is within the scope of harm the legislature sought to prevent in the Domestic Violence Prevention Act.

Congratulations to Karla Camac Carlisle (NJP-Pasco) and Jaqueline High-Edward, Senior Attorney (NJP-Spokane), who represented the mother in this case. They, along with Leslie Savina, NJP Advocacy Coordinator, and our statewide Domestic Violence Advocacy Team are leading NJP’s successful efforts to ensure Washington families have the full legal protections from the physical, social and psychological harm that result from family violence. Thank you also to the amici who supported NJP’s client, Child Justice, Inc. and Legal Voice.   

This important victory is also the result of the work of domestic violence advocates across the state who work closely with CLEAR, NJP regional offices, and all of our Alliance for Equal Justice partners to make justice a reality for our client communities. Thank you!

In a far reaching case argued by NJP-Bellingham’s Mary Welch, the Court of Appeals (Div. III) ruled that failure to grant year-long domestic violence protection orders (DVPOs) is an abuse of discretion that fails to fulfill the legislative intent to provide safety for victims. The court stated: Short-term protection orders … require a victim of domestic violence to come to court multiple times to face her or his abuser. Prolonged court proceedings increase the risk of danger to a victim of domestic violence. Studies show an increased risk of homicide during extended…proceedings. Juarez v. Juarez, 195 Wn. App 880, 382 P. 3d 13 (2016). 


In Maldonado v. Maldonado, Court of Appeals (Div. I), NJP-Everett’s Mark Ferraz and NJP-Bellingham’s Mary Welch challenged the court’s entry of a short term DVPO that protected only one of three children who had been abused by their mother, and directed the father to seek a modification of the parenting plan to address the safety concerns for all of the children. The court held that the trial court abused its discretion “by failing to state in writing the particular reasons why the other two children were not included in the protection order and by denying protection on the basis that relief could be obtained in another…action.” 


NJP-Spokane Senior Attorney Jacqueline High-Edward and NJP-Pasco’s Karla Carlisle successfully petitioned the Washington Supreme Court to review a case where the Court of Appeals, Div. III, held that a parent could not petition for an order protecting a child based on the parent’s fear, without providing evidence of the child’s fear or evidence that domestic violence is harmful to children. In this case, the trial court entered a DVPO protecting the mother and three of her four children. One child, age 2, was excluded because he was sleeping when the father broke into the house in the middle of the night and tried to strangle the mother.  Esmeralda Rodriguez v. Luis Daniel Zavala, Supreme Court No. 93645-5.


NJP was granted leave to appear as amicus (friend of the court) in an important recent Supreme Court case of Aiken v. Aiken, Supreme Court No.92631-0. In Aiken, a father challenged entry of a domestic violence protection order and sought cross-examination of his teenage daughter, who had attempted suicide to avoid visitation with the abusive father.  NJP-Everett’s Mark Ferraz was allowed to present oral argument as amicus and he and NJP-Tacoma’s Jennifer Ammons co-authored NJP’s brief. The Supreme Court held there is no right to cross examination or live testimony before entry of a domestic violence protection order, upholding the prior decision in Gourley v. Gourley, that allowing testimony and cross-examination must be determined on a case-by-case basis. The court stated: While individual circumstances may warrant the cross-examination and live testimony of child witnesses under due process principles before a domestic violence protection order can be issued, there is no statutory right to either under chapter 26.50 RCW.


In another case to enforce provisions of domestic violence protection laws, NJP joined Legal Voice in a motion seeking publication of a Court Appeals (Div. II) decision “that the trial court abused its discretion when it declined to enter a finding… [of] a domestic violence history because it wanted to protect” the perpetrator from collateral consequences. Legal Voice’s David Ward was the attorney in In Re The Parentage of L.H. and C.H., where the court found domestic violence and noted a past incident, but refused to make a finding of a history of domestic violence under RCW 26.09.191, “because it would ’hate to have this record follow him around like some ghost’ and that such findings would ’haunt him…’ [which the judge did not think] necessary.”  In the (unpublished) decision, the Court of Appeals found the trial court’s reasoninguntenableand an incorrect standard that “abused its discretion.”


NJP also appeared as amicus in two important cases involving protections for victims of sexual assault.  NJP Advocacy Coordinator Leslie Savina joined the Washington State Coalition Against Domestic Violence and Legal Voice as amici in a case challenging the trial court’s denial of a sexual assault protection order because the petitioner, a UW freshman who, was too intoxicated to remember the events surrounding her rape by another student, could not contradict the respondent’s claim that she had consented. The Court of Appeals remanded the case finding that in the face of “evidence of excessive alcohol consumption, or other impairments, the trial court has an obligation to determine if the petitioner had the capacity to consent.” Rebecca Nelson, Appellant v. James Duvall, Respondent, No. 73416-4 [link], Court of Appeals Division I.


In another excellent decision NJP joined with Legal Voice as amicus in a case that challenged the trial court’s denial of a sexual assault protection order because the petitioner had failed to prove acts of the respondent which made her fearful of future contact. The Court of Appeals (Division I) reversed and remanded holding that “the SAPO Act does not require a petitioner to prove an allegation of ‘specific statements or actions’. The only substantive allegation … to prove was that a sexual assault occurred.” Megan Roake, Appellant v. Maxwell Delman, Respondent, No. 73337-1 [link]. (The Washington Supreme Court granted Delman’s petition for discretionary review which will be argued in late March - NJP continues to coordinate with Legal Voice in their supplemental amicus briefing).