It is common for a person with a Washington temporary protection order to seek renewal before the order expires. If a victim petitions for renewal, the court must order a hearing. The burden is on the respondent to show by a preponderance of the evidence that he or she will not commit acts of domestic violence against the petitioner or the petitioner’s family or household members if the order ends. If the respondent fails to meet this burden, then the court will grant the renewal.
A Washington appeals court recently reviewed the renewal of a protection order against the petitioner’s brother. The sister sought a temporary protection order against her estranged brother in 2017. She alleged he made threats against her through her mother and other brother. She also alleged he was emotionally unstable and had firearms. The court granted a protection order for one year. During the year, they had some indirect contact through other family members.
The sister petitioned for renewal shortly before the order expired. She alleged her brother threatened to come to her home after the order expired. Both parties testified at the hearing. The evidence included voice mail transcripts and a letter from another brother.
The court granted the petition to renew and extended the order for two more years. The brother appealed, arguing he proved he would not resume acts of domestic violence after the order lapsed by a preponderance of the evidence.
The statute requires the court to renew a protection order upon a petition unless the respondent proves by a preponderance of the evidence that he will not resume acts of domestic violence. He argued that seven of the Freeman factors weighed in his favor. The Freeman factors are a set of factors identified by the Washington Supreme Court to be considered in determining if a permanent protection order should be terminated. The factors are: 1) whether the victim agreed to terminate the order; 2) the victim’s fear of the other person; 3) the nature of the current relationship of the parties; 4) whether there have been convictions for violation of the order; 5) alcohol and drug use by the restrained person; 6) other violent acts; 7) domestic violence counseling; 8) the restrained person’s age and health; 9) whether the victim is opposing the motion to terminate in good faith; 10) protection orders against the restrained party in other jurisdictions; and 11) any other factors the court finds to be relevant.
The appeals court found, however, that the Freeman factors are an analytic tool and not a dispositive test. The court noted it is “a guiding framework, subject to judicial discretion.” In fact, the eleventh factor allows the court to identify other factors it deems relevant.
The brother also argued that the sister had not submitted sufficient evidence to support renewal. However, a petitioner only has to show that there was threatened abuse and a present fear of the respondent. The brother argued her alleged fears were unfounded because she did not establish that he had committed or was likely to commit domestic violence or that her fear was reasonable, and he had disputed her allegations of domestic violence.
There was evidence the brother had made death threats and owned weapons. There was also evidence supporting the sister’s claim the brother was emotionally unstable. Furthermore, there was evidence of ongoing indirect contact and hostilities. The appeals court could not find that the trial court abused its discretion. The court did not have to accept the brother’s testimony that he did not want to have any contact or relationship with his sister.
The brother also argued the trial court erred by allowing the other brother’s letter into evidence because it was inadmissible hearsay and had not been authenticated. The appeals court noted, however, that the rules of evidence do not apply to a proceeding for a protection order. Hearsay can be competent evidence supporting a trial court’s decision in a protection order proceeding. It was within the trial court’s discretion to determine that the statements in the letter were likely those of the other brother and that they were helpful in resolving the issue. The letter was signed by the other brother and presented by his sister. The respondent brother submitted no evidence suggesting his brother had not written the letter. The appeals court therefore found no error in the trial court’s admission of the letter.
The appeals court affirmed the renewal of the protection order.
As this case illustrates, renewal of a protection order does not require the petitioner to meet a high burden. This case also serves as a reminder that protection orders are not limited to former romantic partners and may be available to protect a person from family members.
If you seek or oppose a renewal of a protection order, the skilled Washington civil protection order attorneys at Blair & Kim, PLLC, can help you. Call us at (206) 622-6562o discuss your case.