Washington Appeals Court Upholds Renewal of DVPO

A Washington Domestic Violence Protection Order (“DVPO”) may order a respondent to participate in state-certified treatment, and failure to do so may be considered if the petitioner seeks renewal. A respondent recently challenged renewal of a DVPO, arguing the court should have considered his relocation and participation in an out-of-state treatment program.

According to the appeals court’s opinion, the petitioner and respondent were a married couple living in Montana when they separated in 2018. After moving to Washington, the wife sought a Domestic Violence Protection Order (“DVPO”). A court commissioner issued a DVPO for one year, requiring treatment and counseling in a domestic violence perpetrator program approved by Washington’s Department of Social and Health Services (“DSHS”).

The petitioner sought renewal of the order in 2020.  The petition stated she still feared the respondent and future violent acts if the order was allowed to expire.  She also stated she was afraid to visit her daughter, who lived in the same town as the respondent, without a DVPO.  The respondent argued he was not a threat to the petitioner because he was still living in Montana.  He offered evidence he had completed a Montana domestic violence treatment program.

The commissioner renewed the order for another year, noting the respondent had failed to complete a Washington-State-Certified program.  The commissioner found he “exhibit[ed] no responsibility and no accountability. . .”

The petitioner petitioned for another renewal in 2021. The respondent again argued he lived outside Washington, did not violate the DVPO, and had completed a treatment program.  The commissioner granted the petition, renewing the DVPO for another five years, noting the respondent had not completed counseling or treatment certified by Washington.

After the superior court judge adopted the commissioner’s findings and conclusions, the respondent appealed.  He argued the trial court abused its discretion when it renewed the DVPO.

The renewal procedure for a DVPO applicable to the petition was contained in former RCW 26.50.060.  Pursuant to that statute, the petition must state the reasons for renewal.  The petitioner does not have to show that the respondent has committed additional acts of violence, but must show that there was past abuse and that there is present fear.  Once the petitioner makes these showings, the petition must be granted unless the respondent shows by a preponderance of the evidence they will not commit domestic violence after the expiration of the order.

The petitioner’s renewal petition described past abuse and explained why she thought the respondent was still a threat to her.  The respondent argued he was no longer a threat because he now lived in Montana and had completed a domestic violence treatment program certified by Montana.

The court concluded, however, that he had not shown that he would not resume acts of domestic violence by a preponderance of the evidence.  The court indicated the respondent had not shown “any acknowledgement or any change in behavior or any accountability” and raised concerns he did not want to participate in the ordered evaluation process or “take responsibility” as required by the Washington-certified programs.

The respondent argued the trial court only focused on one factor in former RCW 26.50.130(3)(c). The appeals court noted, however, that this statute applies to a respondent’s motion to terminate or modify a DVPO, not a motion for renewal.  He argued that the trial court focused on whether he had acknowledged responsibility without considering whether he had committed other acts since the order was entered, whether he violated the terms of the order and how long it had been since the order was entered, and his relocation.  The appeals court noted, however, that the factors were not weighted.  Additionally, the statute provides that the court should not determine there was a substantial change in circumstances based only on relocation or the passage of time without a violation.  The statute specifically states that domestic violence “may be committed from any distance.” The record showed the court had considered how much time had passed, that there had not been additional act of domestic violence, and that the respondent had relocated.  The trial court, however, concluded his refusal to meet the treatment requirement and the wife’s frequent visits to Montana, supported renewal.  The appeals court found no abuse of discretion.

The respondent also argued abuse of discretion in the trial court’s refusal to accept the Montana treatment as compelling evidence he would not resume acts of domestic violence.  He argued the statutory factor did not specify that the treatment must be certified by Washington State.

The appeals court noted that, pursuant to RCW 26.50.060(1)(e), a court may order a respondent’s participation in a treatment program approved under former RCW 26.50.150, which provides DSHS “must” certify programs providing domestic violence treatment.  RCW 26.50.130(3)(c)(v) allows a court to consider whether the respondent “completed domestic violence perpetrator treatment” to determine the likelihood of the respondent committing future acts.  The appeals court concluded that the statutes, read together, showed a legislative intent for the court to consider whether the respondent completed a DSHS-approved domestic violence perpetrator treatment program.

The appeals court concluded the trial court could reasonably not give the out-of-state program the same weight it would give a program certified by DSHS.  The appeals court noted the order required the respondent to complete treatment certified by DSHS.  The appeals court also pointed out the treatment certified by Washington State is different from out-of-state treatment.  Washington has rules setting standards to assess the risks, needs, and responsivity of perpetrators;  increase safety; and enforce accountability for meeting the program requirements. Former WAC 110-60A-0025(1). There are also additional requirements around how the treatment program is operated.

The appeals court found no abuse of discretion in the trial court’s renewal of the DVPO.

The respondent also argued requiring participation in treatment certified by Washington State violated his right against self-incrimination.  He argued that the requirement he “take responsibility” for the allegations against him and execute releases of information that could be disclosed violated his right against self-incrimination.

The appeals court noted there was no direct penalty if the respondent refused to comply with these requirements.  There was no pending criminal case. The appeals court rejected the self-incrimination argument.

The appeals court affirmed the trial court’s order and awarded the petitioner attorney’s fees.

Although this case was decided under former DVPO statutes, the current renewal statute, RCW 7.105.405, is similar.  It no longer requires the petitioner to show “current reasonable fear of harm by the respondent.” In determining if there has been a substantial change in circumstances, the court specifically may consider the factors listed in former RCW 26.50.130(3)(c), with some changes.  The enfactor that was at issue in this case allows the court to consider whether the respondent has either acknowledged responsibility or “successfully completed state-certified perpetrator treatment or counseling since the protection order was entered.”

Whether you are seeking or opposing a protection order, the skilled Washington civil protection order attorneys at Blair & Kim, PLLC, have the experience to help.  We also have significant experience in both family law and criminal defense and can assist with associated cases.


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