Seattle Attorneys Blog

Washington Appeals Court Denies Termination of Permanent Protection Order

March 7, 2019 | by Blair & Kim, PLLC

In some instances involving alleged domestic violence, courts may issue permanent protection orders. Even if there are no intentions to contact the protected party, a respondent may find an ongoing protection order to have other consequences and seek to terminate it. The court is to consider nine factors to determine if a substantial change in circumstances supports termination of the protection order. Only factors that address whether the respondent is likely to commit domestic violence acts against the other party in the future are to be considered. The respondent has the burden of showing the substantial change in circumstances by a preponderance of the evidence.

A man recently sought termination of a permanent protection order. According to the appeals court opinion, the man’s wife filed for legal separation and a one-year protection order after he assaulted her in 1996. The divorce decree prohibited each party from going to each other’s homes or workplaces.

In 2002, the ex-wife sought a protection order against her ex-husband on behalf of herself and their children. She alleged that he had behaved aggressively toward their son, but he denied any abuse. The court entered an ex parte domestic violence order of protection.

Washington Court Gives Father Custody Based on Alleged Abuse in Mother’s Home

March 4, 2019 | by Blair & Kim, PLLC

The rules of evidence can be important in any court case, even in a Washington custody case. A mother recently challenged a custody modification that gave the father primary residential custody on the grounds certain evidence should have been excluded at trial.

The children had been living with their mother and her husband in Germany. While they were in Washington for several weeks visiting their father, he petitioned to become the custodial parent. He alleged abuse in the mother’s home was harmful to the children’s physical, mental, and emotional health.

According to the court’s opinion, the father took the children to the doctor after they told him about abuse, and they were referred to a counselor. The counselor testified the children told her about several incidents of abuse and violence at their mother’s home. She said those statements helped her diagnose and treat them. She diagnosed all three children with adjustment disorder with anxiety and dysthymia, and one of them with depression.

Changes to Title IX Sexual Harassment Investigation Requirements

March 4, 2019 | by Blair & Kim, PLLC

Washington Title IX defense attorneys know that the procedures used by schools and colleges to investigate allegations of sexual harassment are not always fair. The Secretary of Education has proposed amendments to the regulations that implement Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in education programs and activities receiving federal financial assistance. The proposed regulations would define sexual harassment, specify when a school must respond to a sexual harassment allegation, impose a standard for a school’s response to sexual harassment allegations, set forth when a school must initiate its grievance procedures, and require procedures to ensure a fair and reliable factual determination during the investigation and adjudication of a sexual harassment complaint.

The Secretary found problems with how Title IX has been applied. These problems included definitions of sexual harassment that were too broad, lack of notice, not providing both parties with the evidence reviewed by the investigator, not allowing cross-examination of the parties and witnesses, and adjudications that applied the lowest standard of evidence.

The proposed regulations are intended to ensure that allegations are properly investigated and procedures are fair to both parties. Unfortunately, sometimes schools and universities engage in procedures that deny due process to those accused of sexual harassment, regardless of whether the accused person is a student or a faculty member.

Qualifying for Residential-Based DOSA Sentencing in Washington

February 25, 2019 | by Blair & Kim, PLLC

In a Washington criminal case, the court must generally impose a sentence within the standard sentence range. RCW 9.94A.505. In some circumstances, however, the court may deviate from the standard range. These exceptions include exceptional sentences, first-time offender waivers, and Drug Offender Sentencing Alternative (DOSA). DOSA allows a reduced sentence, treatment, and increased supervision for certain non-violent drug offenders with a goal to help them recover from addiction. The DOSA statute sets forth the criteria for qualifying for special sentencing and provides for both prison-based and residential chemical dependency treatment-based alternatives. RCW 9.94A.660. Under the statute, the residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is not greater than 24 months.

In a recent case, the state challenged the imposition of a residential-based DOSA sentence because the defendant’s standard range midpoint was greater than 24 months. According to the opinion, the defendant twice sold his prescription Suboxone strips to a police informant within 1,000 feet of a school bus stop. He was charged with two counts of delivering the drug, each with a sentence enhancement for delivering within 1,000 feet of a school bus stop. The standard sentence range for the defendant, based on his offender score and the seriousness of the crime, was 12 to 20 months, plus a 24-month enhancement for each count.

The state offered a deal that would drop one count and recommend prison-based DOSA for the other. This would have resulted in 20 months in prison and 20 months in community custody. The state rejected the defendant’s counter offer to plead guilty if the state removed the school-zone enhancements so he could serve a residential-based DOSA rather than a prison-based DOSA.

Washington Juvenile Courts Must Enter Findings as to Each Element of the Crime

February 8, 2019 | by Blair & Kim, PLLC

Washington Juvenile Courts are subject to their own rules, which may be different from the rules and procedures that apply to a criminal trial of an adult. A juvenile being tried in a juvenile court does not have a right to a jury. RCW 13.04.021. The case is instead heard by a judge. The court must find the juvenile guilty or not guilty and state its findings of fact. The court must include the evidence it relied upon in its findings. The court must also enter written findings of fact and conclusions of law in a case that is appealed. The findings must include the ultimate facts that prove each element of the crime. JuCR 7.11. Generally, the appropriate remedy on appeal for a juvenile court’s failure to enter sufficient findings is remand to the juvenile court to enter the appropriate findings.

A juvenile recently challenged her conviction based on insufficient findings by the juvenile court. The juvenile was arrested after a woman reported seeing a girl rummaging around in her car and then riding away on a bicycle. A sergeant from the sheriff’s department found the juvenile sitting on a bicycle and looking into a truck a couple of blocks from the woman’s home. According to the appeals court opinion, the girl provided the officer with a name that was not her own. The sergeant arrested the girl. When the girl was searched, police found two knives, two speakers, and some change when she searched her.

The juvenile was charged with second degree vehicle prowling and providing a false statement to a public servant. According to the juvenile court’s findings, the woman identified the juvenile as the girl she saw in her car, based on the girl’s clothing, complexion, and build. The juvenile court found the juvenile guilty of both charges.

Washington Court Denies Father’s Relocation in Shared Custody Case

January 24, 2019 | by Blair & Kim, PLLC

Custody issues can get complicated when one parent wants to move. There is a presumption that relocation by the custodial parent will be permitted, but the non-custodial parent has the right to object. Things are not so straightforward, however, when the parents share custody equally.

A father recently appealed a court’s denial of relocation where the parents shared custody. The couple divorced in 2012. The child resided with the mother the majority of the time until 2016. In 2016, the court approved an agreed-upon parenting plan that split residential time equally on a 50/50 basis. The designated both parents as having “equal rights and responsibilities…”

The plan also provided that either parent who planned to move would give notice to anyone entitled to court ordered time with the child. The father filed a notice in April, 2017, stating his intent to move with the child. His current wife was entering a five-year residency in emergency medicine and pediatrics in Baltimore, and he planned to join her there.

Washington Appeals Court Upholds Anti-Harassment Protection Order

January 24, 2019 | by Blair & Kim, PLLC

Washington civil protection orders are available to protect individuals from contact by someone who has harassed, threatened, or assaulted them. Washington has several types of protection orders that may apply in various situations, including an anti-harassment protection order. An anti-harassment protection order may be issued against a person who has harassed another. Unlike a domestic violence protection order, it does not require evidence of a particular type of relationship between the parties.

A Washington appeals court recently considered an appeal of an anti-harassment order. A woman had petitioned for an anti-harassment order against her ex-spouse’s new romantic partner. The petitioner alleged the respondent harassed and threatened her through calls, texts, and social media. The respondent was a resident of New Mexico. The court issued the temporary anti-harassment protection order and scheduled a hearing. Both women testified at the hearing. The court ultimately issued a three-year anti-harassment order prohibiting the respondent from direct or indirect contact with the petitioner. The respondent appealed.

The respondent argued the trial court did not have personal jurisdiction over her because she is not a resident of the state and has insufficient contact with the state. She also argued that there was not any evidence that any of the contact “originated in the state of Washington.” The appeals court found, however, that the statute, RCW 10.14.155, allows jurisdiction over non-residents of Washington in some situations when the conduct occurred outside the state. The statute provides for jurisdiction where the respondent’s conduct represents an “ongoing pattern of harassment that has an adverse effect on the petitioner,” if the petitioner is a Washington resident. The petitioner in this case was a Washington resident.

Washington Court Upholds Restitution for Loss of Gun Held as Evidence

January 18, 2019 | by Blair & Kim, PLLC

Restitution is a concept in criminal law that requires an offender to compensate crime victims for their losses. It is designed to both punish the offender and compensate the victim. In a Washington criminal case, restitution is to be ordered when the defendant is convicted of an offense that results in personal injury or property damage or loss. The injury or loss must be “causally connected” to the offense. Generally, this means that the loss would not have occurred but for the crime. The loss does not, however, have to be foreseeable.

In a recent case, a court ordered restitution for the loss of a weapon that was in the possession of the sheriff’s office. The defendant challenged a court order to pay restitution to the owner of a gun he was convicted of stealing. He argued the court erred in ordering him to pay restitution when the gun could have been returned to the owner instead.

According to the court’s opinion, the man had been served with a no-contact order that arose from an arrest for assaulting his estranged wife. In the same day, he visited the gun owner and asked to see his guns. He stole a pistol and left while the gun owner was in the bathroom. He later used the weapon to threaten his wife. The gun was recovered by the sheriff’s office and placed into evidence. The defendant admitted stealing it from the owner.

Washington Court Finds No Proximate Cause and No Res Ipsa Loquitur in Ladder Fall Case

January 18, 2019 | by Blair & Kim, PLLC

The plaintiff in a negligence case generally must prove all four elements of negligence. In some rare cases, however, a Washington personal injury defendant may not have to prove the negligence elements based on the doctrine of res ipsa loquitur. Res ipsa loquitur is a doctrine that allows plaintiffs to succeed on a negligence claim without proving a specific act of negligence in certain circumstances. The plaintiff must show that the accident that resulted in the injury is a type that does not ordinarily occur absent negligence, that the injury was caused by something within the defendants’ exclusive control, and that the plaintiff did not contribute to the accident.

A plaintiff recently argued res ipsa loquitur applied to his fall from a ladder. A friend asked the plaintiff to help him attach trim to the soffit of an outbuilding on some property he co-owned. The friend had set up two stepladders. The friend held the ladder as the plaintiff ascended it. The plaintiff had not asked him to do so and did not expect him to continue to hold it. The plaintiff stated the ladder felt steady, but the next thing he remembers is being on the ground with blurry vision. He did not know if the ladder broke or just fell. He did not see it after he fell.

The plaintiff sustained a punctured lung, torn spleen, and other injuries. The friend later told the plaintiff he did not know what happened. He turned his back and the next thing he knew, the plaintiff was on the ground.

Washington Dept. of Corrections Not Liable for Death of Domestic Violence Victim

December 31, 2018 | by Blair & Kim, PLLC

The Department of Corrections (DOC) has a duty to supervise offenders who are released on supervised probation. The DOC is generally not liable for Washington personal injuries caused by a probationer, unless it acts with gross negligence in supervising him or her. To show gross negligence, a plaintiff must show that the DOC substantially breached its duties and acted without even slight care.

The Washington Supreme Court recently considered whether the DOC was liable for the murder of a woman by a man on probation.

According to the Court’s opinion, the probationer received a suspended sentence in 2010 for misdemeanor violation of a court order that prohibited him from contacting the victim, on the condition he serve 180 days in jail and 24 months’ probation. He physically assaulted and threatened to kill the victim in 2011, resulting in a guilty plea to misdemeanor assault and felony harassment. This sentence also included 24 months of probation. The court ordered a number of conditions, including prohibiting contact with the victim.