IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AMINA J. CONDEL, No. 84310-9-I
Respondent, DIVISION ONE v.
FRANK GARRETT CONDEL, UNPUBLISHED OPINION
Appellant.
SMITH, C.J. — Amina and Frank Garrett Condel1 married in 1999 and have
four children together. After enduring years of abuse, Amina petitioned for a
domestic violence protection order (DVPO) for herself and their children. After a
contested hearing, a court commissioner granted her petition, entered a DVPO,
and ordered Garrett to surrender any weapons and attend a domestic violence
treatment program. The commissioner denied Garrett’s motion for
reconsideration and a judge denied his motion for revision. On appeal, Garrett
raises a number of challenges, both procedural and substantive. Finding no
merit in his contentions, we affirm.
FACTS
Amina and Garrett Condel married in 1999 and have four children
together: B.C., G.C., J.C., and L.C. Three of the children are minors and L.C. is
an adult with autism, dependent on her parents for care.
1 For clarity, we refer to the parties by their preferred first names—in
Mr. Condel’s case, his middle name—because they share a last name. No. 84310-9-I/2
Soon after the parties married, Garrett became physically and
psychologically abusive toward Amina. His behavior escalated over the years to
eventually involve the parties’ children. Garrett’s aggressive behavior caused
Amina to “live in extreme fear for [her] life and [the] children’s lives.” Amina’s
situation only worsened with the onset of the COVID-192 pandemic. Forced to
remain at home with Garrett, his controlling and abusive behavior became
unbearable.
In March 2022, Amina petitioned for a domestic violence protection order
(DVPO) for herself and the children. Amina’s declaration in support of the DVPO
detailed years of abuse directed at her and the children. She stated that Garrett
first became aggressive during their first year of marriage and that when Garrett
got upset, “he would often wrap his arms around [Amina] and physically hold
[her] against her will . . . so that [she] could not move or escape.” She described
that over the years, Garrett habitually abused her, calling her crude names and
being generally demeaning. She also alleged that Garrett used “threatening
body language to intimidate [her],” including charging after her and putting his
face aggressively close to hers.
On July 17, 2019, in what Amina described as “[o]ne of the scariest
incidents,” Garrett “slapped [her] hand with so much force that his finger jabbed
into [Amina’s] eye and [her] head slammed backwards and struck the frame of
[her] bedroom door.” Amina experienced eye pain “non-stop” for a month and
2 COVID-19 is the World Health Organization’s official name for
“coronavirus disease 2019,” a severe, highly contagious respiratory illness that quickly spread throughout the world after being discovered in December 2019.
2 No. 84310-9-I/3
received medical care for her eye and head injuries.
Amina recounted several incidents of violence against her witnessed by
the children. For example, in November 2019, when Amina asked G.C. to leave
the garage to go to bed, Garrett “came charging toward the door and slammed
the door on [Amina’s] right arm and side.” And in March 2020, during an
argument about finances, Garrett suddenly “sprung up from his chair and the
chair slammed down hard on [Amina’s] foot.” Amina cried out in pain and the
children “ran to [her] to see if [she] was ok, and [Amina] cried for several
minutes.”
Amina’s declaration also contained several examples of violence directed
towards the parties’ children. For instance, in March 2018, Garrett “got physically
aggressive with GC by slapping his leg.” A few days later, “Garrett became
physically aggressive with LC by slapping, grabbing and being rough with her
and scaring her to the point where she was shaking and crying.” In total, Amina’s
declaration contained more than 20 accounts of violence towards her or the
children.
Garrett denied committing any acts of violence towards Amina or the
children and claimed that “notwithstanding her hyperbolic melodrama, Amina has
never been frightened of [him] in any way whatsoever.” Garrett noted that while
he had been raised “in a loving family with no exposure to domestic violence,”
Amina was “raised by a single mother” and “had been the victim of multiple
childhood traumatic events.” Garrett stated that he believed “these unfortunate
childhood experiences have had a detrimental impact on [Amina’s] personality,
3 No. 84310-9-I/4
her perceptions, and her views about parenting.” In support of his position,
Garrett provided excerpts from his daily journal, which he said he “felt compelled
to start keeping . . . to protect [himself] from [Amina’s] fabrications.”
At the DVPO hearing before a court commissioner, the court concluded
that Amina met her burden of proving Garrett had perpetrated acts of domestic
violence. The court specially highlighted the July 17 eye injury incident as
supporting a DVPO’s entry and noted that it found Amina’s version of events to
be more credible than Garrett’s. The court found that the children were present
for many of the incidents alleged in Amina’s petition, including the one on
July 17, and that this exposure constituted domestic violence against the
children. The court noted that an incident on December 15, 2019—in which
Garrett was alleged to have grabbed J.C. around the neck—warranted including
the children in the DVPO. The court concluded that Garrett presented a credible
threat to Amina and granted her petition. It also ordered Garrett to surrender any
weapons in his possession and attend a domestic violence treatment program.
Finally, the court stated that the DVPO was subject to any visitation rights
granted in the parties’ ongoing dissolution proceeding.
Garrett moved for reconsideration, which the commissioner denied. He
then moved for revision, which a superior court judge denied.
ANALYSIS Standard of Review
A court commissioner’s decision is subject to revision by the superior
court. RCW 2.24.050. On a motion to revise, the superior court reviews the
4 No. 84310-9-I/5
commissioner’s findings of fact and conclusions of law de novo based on the
evidence and issues presented to the commissioner. In re Marriage of Moody,
137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). “A revision denial constitutes an
adoption of the commissioner’s decision, and the court is not required to enter
separate findings and conclusions.” Maldonado v. Maldonado, 197 Wn. App.
779, 789, 391 P.3d 546 (2017). On appeal, we review the superior court’s ruling,
not that of the commissioner. Maldonado, 197 Wn. App. at 789, 791.
We review the superior court’s decision to grant a domestic violence
protection order for an abuse of discretion. In re Marriage of Stewart, 133 Wn.
App. 545, 550, 137 P.3d 25 (2006). The court abuses its discretion if its decision
is manifestly unreasonable or based on untenable grounds or untenable reasons.
In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). Where,
as here, the court weighed contradictory evidence, “[w]e review the superior
court’s findings for substantial evidence,” and defer to the trier of fact on
questions of witness credibility, conflicting testimony, and persuasiveness of the
evidence. In re Vulnerable Adult Petition for Knight, 178 Wn. App. 929, 936-37,
317 P.3d 1068 (2014). Evidence is “substantial” when it is sufficient to persuade
a fair-minded person of the truth of the matter asserted. In re Marriage of Black,
188 Wn.2d 114, 127, 392 P.3d 1041 (2017).
Motions to Refer
Garrett argues the court abused its discretion by refusing to rule on his
motions to file a report with law enforcement or the Department of Social and
Health Services (DSHS) or to refer the case to Family Court Services (FCS). We
5 No. 84310-9-I/6
disagree. The court effectively denied Garrett’s motions by granting the DVPO
petition.
RCW 26.12.170 provides that the court “may” file a report with law
enforcement or DSHS if it has reasonable cause to believe that a child of the
parties has suffered abuse or neglect. It also provides that the court “may” order
or recommend Family Court Services. RCW 26.12.170. The statute grants the
court the ability to make a referral. Therefore, we review the court’s
determination for an abuse of discretion. See In re Guardianship of Johnson,
112 Wn. App. 384, 387-88, 48 P.3d 1029 (2002).
Here, the court did not file a report with law enforcement or DSHS and did
not refer the parties to FCS for an assessment. Instead, after finding that Garrett
committed domestic violence against both Amina and their children, the court
granted Amina’s petition for a DVPO. By granting Amina’s petition, the court
effectively denied Garrett’s requests for referrals. That denial was not an abuse
of discretion.3
Garrett’s Video Exhibits
Garrett asserts that the court erred by refusing to admit or consider video
exhibits that he wished to submit as evidence. However, because the court was
unable to play them, Garrett chose to proceed with the hearing without the
exhibits rather than postponing the hearing. We conclude that in doing so, he
3 Garrett also claims that both parties moved the court to refer them to
FCS. But Amina only requested the court refer the parties to FCS if it was not inclined to grant her a protection order.
6 No. 84310-9-I/7
waived this issue.
Under RAP 2.5(a), we may refuse to hear any claim of error not raised
before the trial court. Waiver requires both knowledge and intent; it is the
intentional and voluntary relinquishment of a known right, or conduct that infers
relinquishment of such right. Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d
960 (1954). “It is a voluntary act which implies a choice, by the party, to dispense
with something of value or to forego some advantage.” Bowman, 44 Wn.2d at
669. The ability of an attorney to waive a right on their client’s behalf depends on
the nature of the right, but statutory and procedural rights are typically waivable
without the client’s express permission on the record. See, e.g., State v. Israel,
19 Wn. App. 773, 779, 577 P.2d 631 (1978) (attorney’s waiver of statutory right
to examination by two experts in competency hearing); In re Adoption of M.S.M.-
P., 184 Wn.2d 496, 500, 358 P.3d 1163 (2015) (attorney’s waiver of
constitutional right to public proceedings).
At the April 20 hearing, the court informed the parties that it had not been
able to review the video exhibits submitted by Garrett’s counsel. The court noted
that it did not have access to the exhibits and that it was unsure how to view the
exhibits—it suggested that counsel might need to appear and play the exhibits in
open court. The court stated that the parties could proceed that day without the
exhibits or the hearing could be continued to allow the court time to view the
exhibits.4 Garrett’s counsel opted to proceed: “I think my client would prefer to go
4 The court offered to grant a shorter than usual continuance: “[I]f it’s
important that the Court review this prior to . . . a hearing or . . . issuing a
7 No. 84310-9-I/8
forward.” The court then reiterated that it “ha[d] not reviewed any video evidence
that was submitted, and that [the video exhibits were] not going to be considered
as part of the Court’s decision.” Garrett’s counsel did not object further.
In response to Amina’s waiver argument, Garrett urges this court to look to
the superior court’s ruling on his motion for revision, in which it concluded that it
was “unclear from the audio recording of the April 20th hearing” if Garrett waived
viewing of the video exhibits by agreeing to go forward. The superior court also
determined that, regardless of waiver, it could not review the exhibits because
Amina did not consent to being recorded and “it is illegal to record a
communication without consent from all parties involved.” See RCW
9.73.030(1)(b). Garrett argues that exceptions to the Washington Privacy Act,
chapter 9.73 RCW, apply and that the superior court erred in not admitting his
exhibits.
Because we conclude that Garrett’s actions at the hearing constituted a
waiver, we decline to reach whether the exhibits violated the Privacy Act. The
record before us clearly demonstrates that Garrett was fully aware of his right to
present the video evidence and knowingly and voluntarily chose to relinquish it.5
Domestic Violence Protection Order
Garrett maintains that the court abused its discretion by granting Amina’s
petition for a DVPO because she failed to meet her burden of proving by a
preponderance of the evidence that domestic violence occurred. He specifically
decision . . . then the best thing I can suggest is . . . a short continuance, like, less than the standard two weeks.” 5 We reviewed a transcript of the hearing, rather than an audio recording.
8 No. 84310-9-I/9
takes issue with the two incidents the court outlined as examples for the bases
for the protection order and claims they were not domestic violence as defined by
statute. We disagree and conclude that substantial evidence supports the court’s
finding that Garrett committed acts of domestic violence.
At the time Amina filed her petition, the Domestic Violence Prevention Act
(DVPA), former chapter 26.50 RCW (2019), governed civil domestic violence
protection order proceedings.6 A party seeking a protection order must allege
the existence of domestic violence and must be accompanied by an affidavit
made under oath stating the specific facts and circumstances from which relief is
sought. Former RCW 26.50.030(1) (2005). Domestic violence is “[p]hysical
harm, bodily injury, assault, or the infliction of fear of imminent physical harm”
between intimate partners or between family or household members. Former
RCW 26.50.010(3) (2019). Evidence demonstrating a present fear based on
past violence is a sufficient basis for granting a DVPO. Muma v. Muma, 115 Wn.
App. 1, 6-7, 60 P.3d 592 (2002). A person may also petition for protection on
behalf of minor household members, regardless of whether those minors
witnessed acts of domestic violence or were themselves victims. Former RCW
26.50.020(1)(a) (2019); Rodriguez v. Zavala, 188 Wn.2d 586, 592-93, 598-99,
398 P.3d 1071 (2017). The petitioner must prove each element of former
RCW 26.50.030 by a preponderance of the evidence. See Reese v. Stroh, 128
Wn.2d 300, 312, 907 P.2d 282 (1995) (setting out burden of proof in civil cases).
6 The DVPA was repealed by 2021 ch. 215 § 170, effective July 1, 2022.
Its provisions are now codified under Civil Protection Orders, ch. 7.105 RCW.
9 No. 84310-9-I/10
To meet this standard, the court must find that it was more likely than not that
domestic violence occurred. See In re Marriage of Freeman, 169 Wn.2d 664,
672-73, 239 P.3d 557 (2010).
Here, Amina’s declaration alleged that she was “increasingly afraid of
Garrett,” that “[m]ost of the incidents of violence occur in front of the children or
involve them,” and that at times, she lived “in extreme fear for [her] life.” Her
declaration detailed more than 20 episodes of violence toward her and the
children. In one of the worst incidents, Garrett slapped Amina’s hand with such
force that his finger jabbed into her eye and her head slammed backwards,
striking a doorframe. A few minutes later, Garrett started filming Amina holding
J.C., and told her, “Don’t hit me.” Amina responded: “You just assaulted me, you
went into my eye and my head hit the wall.” B.C. also witnessed Garrett
recording Amina and appeared “very confused” about what was happening.
After that incident, Amina said she “experienced eye pain non-stop for a month
and received medical care for [her] eye and head.” Attached to her declaration
are photos from almost every incident, either of Amina or the children. The
photos show red marks, bruises, and scratches consistent with Amina’s
recounting of the incidents. She also noted that Garrett owns several guns,
many of which are stored inside the couple’s house, and that she was unsure if
the guns were locked or loaded.
After considering the evidence presented by the parties, the court
concluded that Amina’s version of events was “more credible” than Garrett’s.
The court found that the parties’ children “were present for many of the incidents
10 No. 84310-9-I/11
alleged in the petition,” including the July 17, 2019 incident where Garrett injured
Amina’s eye. The court also noted that the December 15, 2019 incident—in
which Amina alleged that Garrett grabbed J.C. by the neck—supported including
the children in the DVPO. Though Garrett denied this allegation, the court again
found Amina’s account “more credible.”
Substantial evidence supports the court’s findings and conclusion that
Garrett perpetrated domestic violence against Amina and their children. Amina
provided detailed a recounting of incidents that resulted in bodily harm, physical
injury, and fear of imminent physical harm. And because the parties’ children
were present for and involved in certain instances of domestic violence, it was
appropriate for the court to include them in the DVPO. Rodriguez, 188 Wn.2d at
595-98 (children’s exposure to domestic violence constitutes domestic violence).
Garrett contends that the two incidents the court mentioned at the hearing
do not constitute domestic violence as a matter of law.7 We disagree.
First, Garrett asserts that the court wrongly concluded he did not act in
self-defense during the July 17 incident in which Amina suffered an eye injury.
7 Garrett also implies that the two incidents discussed by the court were
the only instances of domestic violence the court identified. But Garrett grossly misinterprets the record. The court merely highlighted these two incidents as examples of bases for the DVPO—it did not indicate that these were the only incidents of domestic violence. The court told Garrett’s counsel as much after counsel tried to limit the court’s ruling: MR. BERRY: And, again, if I may, Your Honor, just so I’m clear on the incidence of domestic violence, the one on July 17th . . . that’s the assault that the Court is relying upon? THE COURT: That is the—that’s the explicit one the Court discussed during its ruling, yes.
11 No. 84310-9-I/12
Whether he acted in self-defense is fundamentally a question of fact, susceptible
to the court’s determination after hearing evidence. See State v. Hatt, 11 Wn.
App. 2d 113, 134-35, 452 P.3d 577 (2019) (whether defendant acted in self-
defense is a question for the fact-finder). The parties agree that during that
incident, Amina held her hand up in front of Garrett and that Garrett hit Amina’s
hand out of the way. Amina argues that she held her hand up to communicate
“stop” and that Garrett responded with violence. Garrett contends that he
interpreted Amina’s raised hand as an act of aggression and responded by
slapping her hand to protect himself. The trial court determined that Amina’s
story was more credible and Garrett cannot attack the court’s credibility
determination on appeal. Knight, 178 Wn. App. at 937 (“We defer to the trier of
fact on the persuasiveness of the evidence, witness credibility, and conflicting
testimony.”).
Second, Garrett claims the court erred by concluding the December 15
incident—in which Amina alleges Garrett grabbed J.C. by the neck—did not
constitute “reasonable physical discipline,” because it based its conclusion
“solely on speculation.” The court did not err in determining that Garrett’s actions
were not reasonable physical discipline.
RCW 9A.16.100 allows parents to use moderate and reasonable physical
discipline for purposes of restraining or correcting their children. The statute
provides a nonexclusive list of unreasonable physical disciplinary actions
including: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child
12 No. 84310-9-I/13
with a closed fist; (3) shaking a child under age three; (4) interfering with a child’s breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks.
RCW 9A.16.100.
In determining whether physical discipline is reasonable, the fact finder
should consider the age, size, and condition of the child, the location of the injury,
the nature of the misconduct, and the child’s developmental level. RCW
9A.16.100; WAC XXX-XX-XXXX.
Amina alleged that on December 15, 2019, “Garrett became physically
aggressive with JC and lashed out at him by grabbing him around his neck.” In
support of this allegation, she provided photos of J.C. after the incident with red
marks on his neck. The red marks on J.C.’s neck resemble finger marks,
consistent with her story. The court noted that “[Garrett] denie[d] the incident
took place and thus [did] not seem to be arguing that this was discipline per
RCW 9A.16.100,” but that “even if he had made such an argument . . . this
conduct is beyond what is reasonable per that statute.” The court concluded that
“[g]rabbing a child’s neck would interfere with a child’s breathing and is explicitly
stated within the statute as per se unreasonable.”
The court did not err in concluding that Garrett’s actions were likely to
interfere with J.C.’s breathing, and therefore, not reasonable physical discipline
under the statute. Contrary to Garrett’s assertion, it is not speculative to
conclude that grabbing a child by the neck hard enough to leave finger marks
would interfere with their breathing. The photos provided by Amina show clear
13 No. 84310-9-I/14
red marks on J.C.’s neck, consistent with Amina’s version of the events. The
court did not abuse its discretion in granting the DVPO.
Challenges to Findings of Fact
Garrett challenges two of the court’s findings of fact as not being
supported by substantial evidence: (1) that he presented a credible threat to
Amina, and (2) that the couple’s children were exposed to domestic violence.
We conclude that both findings were supported by substantial evidence.
Evidence is “substantial” when it is sufficient to persuade a fair-minded
person of the truth of the matter asserted. Black, 188 Wn.2d at 127.
1. Garrett Presents a Credible Threat
The many episodes of abuse detailed in Amina’s declaration demonstrate
that Garrett perpetrated acts of domestic violence against her. Amina’s
description of these incidents, along with the supporting documentation and
photos she provided, constitute substantial evidence supporting a finding that
Garrett presented a credible threat to Amina.
Garrett attempts to contrast this case with In re Parentage of T.W.J., 193
Wn. App. 1, 367 P.3d 607 (2016). In T.W.J., this court upheld a finding that
respondent represented a credible threat based on an e-mail from respondent’s
counsel to petitioner, in which counsel warned petitioner of respondent’s threat to
kill her. 193 Wn. App. at 6-7. Garrett asserts that there “is no such evidence
here” and that Amina “has never alleged that [Garrett] has ever threatened to
physically harm her or their children.” But this argument misses the mark.
Domestic violence is not confined to threats of physical violence. And Amina has
14 No. 84310-9-I/15
alleged that she felt threatened by Garrett on several occasions. Faced with
overwhelming evidence, which it determined credible, and evidence that
corroborated Amina’s assertions that Garrett habitually committed acts of
domestic violence, the trial court did not err in finding that Garrett presented a
credible threat to Amina.
2. Children’s Exposure to Domestic Violence
The December 15, 2019 incident, in which Garrett is alleged to have
grabbed J.C. by the neck constitutes substantial evidence supporting a finding
that the children were exposed to domestic violence. The incidents described in
the section of Amina’s declaration entitled “Past Violence Toward Children,” also
supports a finding that the children were exposed.
In an attempt to cabin the court’s finding that the children were exposed to
domestic violence, Garrett asserts that “there is no evidence that any of the
parties’ children, with the exception of [J.C.], were present at either of the two
incidents which the court concluded constituted domestic violence.” But the
court’s finding was not confined to the July 17 and December 15 incidents. The
court clarified that those incidents were “the explicit one[s] the Court discussed
during its ruling” and did not state that those were the only incidents supporting
its findings. And contrary to Garrett’s assertion, the record demonstrates that
J.C. was not the only child present during the alleged incidents. For example, in
March 2018, Amina alleges that Garrett “got physically aggressive with GC by
slapping his leg.” A few days later, Amina states that Garrett “became physically
aggressive with LC by slapping, grabbing and being rough with her and scaring
15 No. 84310-9-I/16
her to the point where she was shaking and crying.” Amina recalls Garrett
“yelling, being aggressive, domineering, and threatening to LC.” Photos of L.C.
from after the incident corroborate Amina’s story.
We conclude that substantial evidence supports the court’s finding that the
couple’s children were exposed to domestic violence.
Constitutional Challenges
Garrett raises a series of constitutional challenges on appeal. He asserts
the court erred in (1) not considering whether Garrett’s constitutional right to
parent was affected by the DVPO, (2) not conducting a strict scrutiny analysis,
and (3) restricting Garrett’s contact with his children. We do not find his
arguments persuasive. Washington courts have already determined that the
DVPA—and protection orders authorized by it—do not interfere with the
constitutional right to parent.
“[P]arents have a fundamental right to autonomy in child rearing
decisions.” In re Custody of Smith, 137 Wn.2d 1, 13, 969 P.2d 21 (1998).
Where a fundamental right is involved we apply the “strict scrutiny” test, which
holds that the State may only interfere if it can show that it has a compelling
interest and its interference is narrowly tailored to meet that compelling interest.
Smith, 137 Wn.2d at 15. This test is satisfied when the State, exercising its
parens patriae power, interferes in a parental relationship in which a child has
been harmed or there is a credible threat of harm to the child. Stewart, 133 Wn.
App. at 555; Smith, 137 Wn.2d at 16. We review constitutional challenges de
novo. Aiken v. Aiken, 187 Wn.2d 491, 501, 387 P.3d 680 (2017).
16 No. 84310-9-I/17
Here, the court found that Garrett represented a credible threat to the
physical safety of Amina and their children. The court also concluded that
Garrett had harmed at least one of the children. Therefore, State interference in
the form of a DVPO is justified to protect the children and does not violate
Garrett’s fundamental right to parent his children. Moreover, there was no error
in the court not explicitly considering this right; it had no obligation to rehash
settled case law when it granted the DVPO.
Garrett’s arguments to the contrary are vague and unavailing. While he
recognizes the State may interfere in a parental relationship when a child has
been harmed or if there is a credible threat of harm, he maintains that the
incidents the court relied on do not provide substantial evidence that any of the
children were harmed. Relying on In re Marriage of C.M.C., Garrett claims that
the incidents the court relied on are “de minimus” and that there is no compelling
State interest where there are only “isolated, de minimus incidents which could
technically be defined as domestic violence.” 87 Wn. App. 84, 88, 940 P.2d 669
(1997). In C.M.C., this court, in dicta, noted that the commentary to the proposed
Parenting Act of 1987 stated that the term “history of domestic violence” was
intended to exclude “isolated, de minimus incidents which could technically be
defined as domestic violence.” 87 Wn. App. at 88 (quoting 1987 PROPOSED
PARENTING ACT: REPLACING THE CONCEPT OF CHILD CUSTODY: COMMENTARY AND
TEXT 29 (undated)). But that statute was later amended and is not at issue in the
present case. Moreover, regardless of the precedential value of C.M.C., the
incidents alleged here are certainly not de minimus or isolated. Rather, the
17 No. 84310-9-I/18
record demonstrates a history of domestic violence spanning several years. As
previously discussed, substantial evidence supports the court’s finding that
Garrett posed a credible threat to the children.8
Relying next on State v. Ancira, Garrett asserts that any restriction of his
contact with his children must be “reasonably necessary” and that limiting his
contact to one hour a week over FaceTime or Zoom was not reasonably
necessary. 107 Wn. App. 650, 27 P.3d 1246 (2001). But Ancira is
distinguishable. Ancira involved a sentencing condition in a criminal case that
prohibited the defendant from having contact with his children for five years. 107
Wn. App. at 652-53. On appeal, this court concluded that the evidence was
insufficient to support such a severe prohibition against contact. Ancira, 107 Wn.
App. at 654. Here, the evidence amply supported restricting contact and the
DVPO is subject to residential provisions granted in the parties’ ongoing
dissolution proceeding. We conclude that the DVPO does not infringe upon
Garrett’s constitutional rights.
Domestic Violence Treatment
Garrett contends that the court abused its discretion by ordering him to
participate in domestic violence treatment and the DV Dads program because
8 After argument, Garrett filed a Supplemental Memorandum Clarifying
Responses to Questions Raised During Oral Argument and a related motion for leave to file that memorandum. He cites RAP 18.8(a) as authority allowing us to consider his arguments even though they are made outside of the normal briefing and argument process. RAP 18.8(a) allows us to waive the requirements of the rules of appellate procedure where we find it appropriate. We decline to exercise our discretionary powers under RAP 18.8(a) and do not consider his supplemental briefing.
18 No. 84310-9-I/19
such programs lack proof of efficacy. He also claims that ordering him to partake
in treatment violates his constitutional rights. Both assertions are incorrect.
The DVPA authorizes courts to “[o]rder the respondent to participate in a
domestic violence perpetrator treatment program approved under RCW
26.50.150.”9 Former RCW 26.50.060(1)(e) (2020).
Garrett asserts that the court violated his constitutional rights by ordering
him to participate in a treatment program lacking proof of efficacy. He insists that
“[n]o state interest is furthered by ordering a parent to complete a domestic
violence treatment program which lacks evidence of efficacy.” In support of his
argument, Garrett relies on a 2013 report from the Washington State Institute for
Public Policy.10 But that report was disapproved of by Washington’s Domestic
Violence (DV) Manual for Judges as mischaracterizing the Domestic Violence
Perpetrator Treatment Program, ch. 388-60B WAC, and using generally flawed
research methodology. See GENDER & JUST. COMM’N, W ASH. STATE SUP. CT.,
DOMESTIC VIOLENCE MANUAL FOR JUDGES app. B (2016) (APPENDIX B),
https://www.courts.wa.gov/content/manuals/domViol/appendixB.pdf
[https://perma.cc/C89R-RNEB].11
9 Former RCW 26.50.150 (2019) has been recodified as RCW
43.20A.735. 10 M. MILLER, ET AL., W ASH. STATE INST. FOR PUB. POL’Y (WSIPP), W HAT
WORKS TO REDUCE RECIDIVISM BY DOMESTIC VIOLENCE OFFENDERS? (2013), https://www.wsipp.wa.gov/ReportFile/1119/Wsipp_What-Works-to-Reduce- Recidivism-by-Domestic-Violence-Offenders_Full-Report.pdf [https://perma.cc/6DKL-XKM2]. 11 For example, the DV Manual notes that the studies underlying the 2013
WSIPP report have been “extensively critiqued in multiple peer journals.” APPENDIX B at 3 n.10. The DV Manual also states that WSIPP’s conclusions “are
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But Garrett fails to acknowledge that in 2018, the WAC chapter governing
domestic violence treatment programming was repealed and replaced by WAC
388-60B. The updated WACs require an initial assessment to determine the
“level of risk, needs, and responsivity for the participant” and the “level of
treatment the program will require for the participant.” WAC 388-60B-0400(2)(a)-
(b). The purpose of this assessment is to provide “[b]ehaviorally focused
individualized treatment goals or objectives for an initial treatment plan.”
WAC 388-60B-0400(2)(c). After the assessment, the program is required to write
a summary including its findings, recommendation, and rationale for the level of
treatment prescribed. WAC 388-60B-0400(19). And as part of this process,
assessors are authorized to recommend no domestic violence intervention
treatment where appropriate. WAC 388-60B-0400(10) and (19)(f). These
procedures minimize the risk that Garrett will receive treatment that is
unnecessary or unhelpful. The court did not abuse its discretion in ordering him
to participate in treatment.
Best Interests of the Children
Garrett argues that the court erred in granting the DVPO without
considering the best interests of the children. We conclude that the court
considered the best interest of the children by granting the DVPO.
The Parenting Act of 1987, chapters 26.09, 26.10 RCW, requires the court
to consider the best interests of the children when entering a parenting plan.
not only inaccurate but simply cannot be supported either by the authors own meta-analysis or by a comprehensive review of the literature.” APPENDIX B at 3 n.10.
20 No. 84310-9-I/21
RCW 26.09.184(1)(g); RCW 26.09.002. Former RCW 26.50.060(1)(d) provides
that “[o]n the same basis as is provided in chapter 26.09 RCW, the court shall
make residential provision with regard to minor children of the parties.” However,
the court is not required to “incorporate the full panoply of procedures and
decision factors from the Parenting Act into the protection order proceeding”
because that proceeding is intended to be “a rapid and efficient process.”
Stewart, 133 Wn. App. at 552. And the court does not need to make formal
findings or follow formal proceedings as it would when entering a parenting plan.
Stewart, 133 Wn. App. at 553. Rather, it only needs to consider the same factors
in making its temporary orders. Stewart, 133 Wn. App. at 553.
Here, the court considered the best interests of the children by granting
the DVPO after finding that Garrett presented a credible threat to the children.
Garrett’s assertion that “the lower court never even considered the best interests
of these children” is not only unsupported by the record but directly contradicted
by it. The court found that the children “were present for many of the incidents
alleged in the petition” and that “exposure to domestic violence is domestic
violence to the children and is sufficient to support a domestic violence protection
order that protects the children as well.” A denial of the DVPO petition, or
ignoring its existence when entering residential provisions, would have been a
failure to consider the best interests of the children. The court did not err.
Fees
Amina requests attorney fees on appeal under former RCW 26.50.060
and RAP 18.1. Garrett contends that because Amina did not request fees before
21 No. 84310-9-I/22
the trial court, she cannot request them on appeal. He also asserts that Amina
cannot recoup fees under former RCW 26.50.060 because it has been repealed
and is no longer an “applicable law” as required by RAP 18.1. We award Amina
her reasonable attorney fees.
When Amina filed her petition, former chapter 26.50 RCW governed civil
DVPO proceedings. That chapter still governs this proceeding. Under former
RCW 26.50.060(1)(g), the court has discretion to require a respondent in a
DVPO proceeding to pay petitioner’s reasonable attorney fees. RAP 18.1
provides that the prevailing party on appeal may recover fees where fees are
permitted at the trial court level. Because Amina is the prevailing party on
appeal, she is entitled to her reasonable attorney fees.
We affirm.
WE CONCUR: