State v. Veliz

298 P.3d 75, 176 Wash. 2d 849
Washington Supreme Court·Decided March 7, 2013·No. No. 85860-8·Published·Cited by 26 cases

Opinions

Wiggins, J.

¶1 In this case we must decide whether a domestic violence protection order that includes a child [851]*851visitation provision qualifies as a “court-ordered parenting plan,” a necessary element under a specific provision of Washington’s first degree custodial interference statute, RCW 9A.40.060(2). We conclude that it does not because the legislature created the phrase “court-ordered parenting plan” as a term of art that refers specifically to a document created under chapter 26.09 RCW. Accordingly, we reverse the Court of Appeals and remand for dismissal of Jose Veliz’s custodial interference conviction for insufficient evidence.

FACTS

¶2 Jose R. Veliz Jr. and Lorena Velasco were married in 2006 following the birth of their daughter, N.V., in 2004. They separated in April 2008, and Velasco obtained an order for protection on May 5, 2008 pursuant to the Domestic Violence Prevention Act (DVPA), chapter 26.50 RCW. The protection order included the partially handwritten provision, “[Veliz] will be allowed visitations as follows: Weekends Saturdays & Sundays. [0]r in accordance with a Court approved parenting plan. Sat & Sunday. Sat from 10 a.m. to Sunday at 5 p.m.” Clerk’s Papers (CP) at 37. The protection order was signed by Veliz, Velasco, and the judge. Veliz thereafter promptly filed for dissolution of his marriage to Velasco on May 14, 2009.

¶3 Veliz and Velasco complied with the protection order’s visitation provision over the next three months without incident. On Saturday, August 16, 2008, Veliz had a normally scheduled visitation with N.V. Veliz did not return N.V. to Velasco on the next day by 5:00 p.m. as required by the protection order. Veliz had taken N.V. out of Washington, first to Los Angeles, California, and later to various cities in Mexico.

¶4 On August 22, 2008, before any formal parenting plan had been filed, the prosecutor charged Veliz by information with first degree custodial interference under RCW 9A.40-.060(2)(a). The information stated:

[852]*852[D]uring the time intervening between the 16th day of August, 2008, and the 17th day of August, 2008, then and there, being the parent of and with intent to deny access from Lorena [Velasco], the other parent having the lawful right to time with N.V. pursuant to a court ordered parenting plan, did retain N.V., a child under eighteen years of age, and intended to hold N.V. permanently or for a protracted period.

CP at 56 (emphasis added). Three days later, on August 25, 2008, the court entered a temporary parenting plan in the dissolution proceeding pursuant to RCW 26.09.197. The State has never amended the information.

¶5 Veliz and N.V. did not return to the United States until December 21, 2008 when Veliz was arrested at the Mexico-United States border.

¶6 Before trial, Veliz filed a Knapstad1 motion to dismiss. He argued that the May 5, 2008 protection order was not a “court-ordered parenting plan” and consequently that there was insufficient evidence to prove first degree custodial interference under RCW 9A.40.060(2) as a matter of law. The trial court denied Veliz’s Knapstad motion. A jury convicted Veliz of custodial interference in the first degree under RCW 9A.40.060(2). The Court of Appeals affirmed Veliz’s conviction, holding that the May 5, 2008 protection order was a “court-ordered parenting plan” for the purposes of the first degree custodial interference statute. State v. Veliz, 160 Wn. App. 396, 408, 247 P.3d 833 (2011).

¶7 We granted review on the limited issue of whether a domestic violence protection order can constitute a “court-ordered parenting plan” for the purposes of the first degree custodial interference statute. State v. Veliz, 171 Wn.2d 1028, 257 P.3d 663 (2011). Answering this question in the negative, we now reverse.

[853]*853ANALYSIS

¶8 Veliz challenges his conviction for first degree custodial interference on the ground that one of the elements of the crime — a court-ordered parenting plan — was not proved beyond a reasonable doubt. We agree and hold that there was insufficient evidence to convict Veliz in this case. The State failed to prove an essential element of RCW 9A.40-.060(2), namely, the existence of a court-ordered parenting plan. We reach this conclusion for three reasons. First, the context and history of the parenting plan concept in Washington reveals that the legislature created the term “parenting plan” as a term of art. Because the legislature intended “parenting plan” as a term of art, the term as used in the custodial interference statutes has the same meaning as in the dissolution proceedings statutes, chapter 26.09 RCW. Second, the related language and history of the DVPA, chapter 26.50 RCW, demonstrates that the legislature did not intend DVPA protection orders to constitute parenting plans. Finally, in the first degree custodial interference statute, the legislature has protected the parent-child relationship by creating alternatives for prosecuting parents who abduct their children in the absence of a parenting plan. Accordingly, we conclude that there was insufficient evidence to convict Veliz of first degree custodial interference, reverse the Court of Appeals, and remand with instructions to dismiss Veliz’s conviction.

I. The term “parenting plan” is a term of art derived from the context in which the legislature created it

¶9 We begin by determining the meaning of “court-ordered parenting plan” as it is stated in RCW 9A.40-.060(2).2 “We review questions of statutory interpretation [854]*854de novo.” State v. Morales, 173 Wn.2d 560, 567 n.3, 269 P.3d 263 (2012). Our “fundamental objective in construing a statute is to ascertain and carry out the intent of the legislature.” Id. at 567. “We construe the meaning of a statute by reading it in its entirety, and consider the entire sequence of all statutes relating to the same subject matter.” Id. (citation omitted).

¶10 The first degree custodial interference statute does not define “court-ordered parenting plan.” Neither is the term defined in RCW 9A.40.010 (defining kidnapping, unlawful imprisonment, and custodial interference terms) or in RCW 9A.04.110 (defining general criminal code terms).3

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State v. Veliz, 298 P.3d 75, 176 Wash. 2d 849 (Wash. 2013).

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