State v. Veliz ( 2013 )

FILE·,.,
IN CLERKS OFFICI •
IUPR!'!ME COURT, STATE OF ~II«J'RRt
DATE MAR 0120\3. I
-~~
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 85860-8
v. )
) En Bane
JOSE R. VELIZ, JR., )
)
Petitioner. ) Filed MAR 072013
)
WIGGINS, J.-ln this case we must decide whether a domestic violence
protection order that includes a child visitation 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
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
State v. Veliz, No. 85860-8
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. [O]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.
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.
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:
[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.
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.
2
State v. Veliz, No. 85860-8
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 Wash. App. 396, 408, 247
P.3d 833 (2011).
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 Wash. 2d 1028, 257
P.3d 663 (2011 ). Answering this question in the negative, we now reverse.
ANALYSIS
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
1
State v. Knapstad, 107 Wash. 2d 346, 729 P.2d 48 (1986).
3
State v. Veliz, No. 85860-8
"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
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 de
novo." State v. Morales, 173 Wash. 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." /d. at 567. "We construe the meaning of a statute by reading it in
2
RCW 9A.40.060(2) provides :
A parent of a child is guilty of custodial interference in the first degree if the
parent takes, entices, retains, detains, or conceals the child, with the intent to deny
access, from the other parent having the lawful right to time with the child pursuant to
a court-ordered parenting plan, and:
(a) Intends to hold the child permanently or for a protracted period; or
(b) Exposes the child to a substantial risk of illness or physical injury; or
(c) Causes the child to be removed from the state of usual residence.
4
State v. Veliz, No. 85860-8
its entirety, and consider the entire sequence of all statutes relating to the same
subject matter." /d. (citation omitted).
The first degree custodial interference statute does not define "court-ordered
parenting plan." Neither is the term defined in RCW 9A.40.01 0 (defining kidnapping,
unlawful imprisonment, and custodial interference terms) or in RCW 9A.04.11 0
(defining general criminal code terms). 3 When a statutory term is undefined, we
typically apply the term's '"plain and ordinary meaning unless a contrary legislative
intent is indicated."' State v. Jones, 172 Wash. 2d 236, 242, 257 P.3d 616 (2011)
(quoting Ravenscroft v. Wash. Water Power Co., 136 Wash. 2d 911, 920-21, 969 P.2d
75 (1998)). But when a technical term or term of art is used, we "turn[] to the
technical definition of a term of art even where a common definition is available."
City of Spokane v. Dep't of Revenue, 145 Wash. 2d 445, 452, 38 P.3d 1010 (2002).
This case requires us to determine which meaning the legislature intended-
the common and ordinary meaning or the term-of-art meaning of the term "parenting
plan." In light of the context and history of the legislative enactments involving
parenting plans, both in the domestic relations title and in the custodial interference
statutes, we hold that the legislature intended "parenting plan" to mean the specific
type of document a court orders pursuant to the dissolution proceedings chapter,
26.09 RCW.
3
Though the terms "[p]ermanent parenting plan" and "[t]emporary parenting plan" are defined in
RCW 26.09.004(3) and (4), this statute states that the definitions "apply throughout this chapter"
signifying that the terms are not meant to define terms appearing in the criminal code. /d.
5
State v. Veliz, No. 85860-8
A. The parenting act of 1987
The legislature invented the "parenting plan" in 1987 when it adopted the
parenting act. LAWS OF 1987, ch. 460, §§ 1-61. The parenting act of 1987
fundamentally changed the legal procedures and framework addressing the parent-
child relationship in Washington. The legislature explained the policy underlying the
act: ''The state recognizes the fundamental importance of the parent-child
relationship to the welfare of the child, and that the relationship between the child
and each parent should be fostered unless inconsistent with the child's best
interests." LAWS OF 1987, ch. 460, § 2 (codified at RCW 26.09.002).
To realize its policy objective, the legislature significantly changed the legal
terminology applicable to parenting. Previous statutes couched much of the parent-
child relationship in terms of which parent had "custody" and which parent was
allowed "visitation." See, e.g., former RCW 26.09.010 (1975), amended by LAWS OF
1987, ch. 460, § 1; former RCW 26.09.050,.070 (1973), amended by LAWS OF 1987,
ch. 460, §§ 5-6. As the drafting committee on the parenting act noted, these terms
tended to treat children as a prize awarded to one parent and denied the other.
DRAFTING COMM., 1987 PROPOSED PARENTING ACT: REPLACING THE CONCEPT OF CHILD
CUSTODY cmt. at 2 (sponsored by Wash. State Rep. Appelwick) (on file with Wash.
State Archives). The drafters also noted that the "current system fails to separate the
process of ending the marriage from the process of changing the parent and child
relationship" and that there were "no adequate standards by which the parties and
the court can define appropriate continuing relationships of children with both
parents." /d. at 3.
6
State v. Veliz, No. 85860-8
The 1987 parenting act addressed these issues by providing for specific
residential schedules, outlining the responsibilities of both parents, and planning for
the future needs of children. /d. at 11-13. Consistent with this objective, the
parenting act eliminated most references to custody and visitation and replaced
them with the more functional terms "parenting plan" and "residential schedule."
See, e.g., LAWS OF 1987, ch. 460, §§5-6, 11-12, 15, 19 (codified as amended at
RCW 26.09.050, .070, .110, .160, .210, .260); see also HOUSE JOURNAL, 50th Leg.,
Reg. Sess., at 1539 (Wash. 1987) ("[The parenting act] eliminates the concept of
custody in favor of separating decision-making from the allegation [sic] of the
residential schedule.").
The increased functionality of the legislature's approach is evident in section 8
of the act, listing objectives of permanent parenting plans, including providing for
children's physical care and emotional stability, stating each parent's responsibilities,
minimizing children's exposure to parental conflict, and anticipating and meeting
future child needs without having to continuously revisit the plan. LAWS OF 1987, ch.
460, § 8 (codified at RCW 26.09.184). The act also requires the parenting plan to
contain provisions for dispute resolution, allocation of decision making authority, and
a residential schedule. /d. Similarly, the act calls for affidavits from both parents to be
considered in issuing a temporary parenting plan, including parents' contact
information, each parent's performance of parenting functions in the preceding year,
the parents' current work and child-care schedules, and any negative factors that
pose a serious risk to children. /d.§ 13 (codified at RCW 26.09.194). These statutes
7
State v. Veliz, No. 85860-8
reveal strong intent that parenting plans were to become the new standard to
address the rights of parents and the needs of children.
The legislature harmonized this complete overhaul of the legal concepts of
parenting with Washington's criminal statutes by importing the language and
terminology of the parenting act into the criminal code. Sections 52 through 54 of the
parenting act would have amended the first and second degree custodial
interference statutes by assigning criminal liability to those who "with the intent to
deny access to the child ... by ... a parent with whom the child resides pursuant to
a parenting plan order . .. take[], entice[], retain[], detain[], or conceal[] the child ...
from a parent .... " LAWS OF 1987, ch. 460, §§ 52-54 (emphasis added). This
proposed change to the custodial interference statutes also shows that the
legislature intended the new parenting plan framework to extend beyond the
domestic relations title into the criminal code. 4
Barb. 1989 Amendments
In 1989, the legislature revisited the parenting act of 1987, continuing to
delete the old terms "custody" and "visitation" to give way to parenting plan
terminology. See LAWS OF 1989, ch. 375, §§ 2-3, 5, 12, 16, 18 (codified as amended
4
Governor Booth Gardner vetoed these sections, expressing concerns "that involving the police in
settling non-violent visitation disputes where harm to the child is not evident is an improper
approach." 1987 FINAL LEGISLATIVE REPORT, 50th Wash. Leg., at 368 (letter from Governor Booth
Gardner to House of Representatives (May 18, 1987)). Governor Gardner also cited his full veto of
Substitute Senate Bill 5088, which made it second degree custodial interference to deny access of a
child to a person with court-ordered visitation rights. /d.; see also 1987 FINAL LEGISLATIVE REPORT,
50th Wash. Leg., at 195 (outlining effects of Substitute S.B. 5088). In the veto message on
Substitute Senate Bill 5088, Governor Gardner stated that he chose to veto amendments to second
degree custodial interference because "[w]e need to give this new parenting/custody determination
procedure in [the Parenting Act] a chance to work." 1987 FINAL LEGISLATIVE REPORT, 50th Wash.
Leg., at 424 (letter from Governor Booth Gardner to Senate (May 18, 1987)).
8
State v. Veliz, No. 85860-8
at RCW 26.09.015, .020, .080, .220, .285, .909); see also 1989 FINAL LEGISLATIVE
REPORT, 51st Wash. Leg., at 161 ("Several obsolete references to custody and
visitation are corrected .... ").
In addition to amending provisions of the parenting act, the legislature began
the task that Governor Booth Gardner had curtailed by veto in 1987-incorporating
the term "parenting plan" into the custodial interference statutes. With regard to
second degree custodial interference, the legislature added a new section that read
A parent of a child is guilty of custodial interference in the second
degree if: (a) The parent takes, entices, retains, detains, or conceals
the child, with the intent to deny access, from the other parent having
the lawful right to time with the child pursuant to a court-ordered
parenting plan; or (b) the parent has not complied with the residential
provisions of a court-ordered parenting plan after a finding of contempt
under ... this act; or (c) if the court finds that the parent has engaged
in a pattern of willful violations of the court-ordered residential
provisions.
LAWS OF 1989, ch. 318, § 2(2) (emphasis added) (codified as amended at RCW
9A.40.070). The legislature also amended chapter 26.09 RCW provisions to require
parenting plans to include warning language that violation of the residential
provisions "may be a criminal offense under RCW 9A.40.070(2)" (capitalization
omitted). LAWS OF 1989, ch. 318, § 4 (codified at RCW 26.09.165). The legislature's
1989 amendments provide further support that the legislature intended the term
"parenting plan" to have a term-of-art meaning consistent with chapter 26.09 RCW.
C. 1994 Amendments
Five years later in 1994, the legislature made additional amendments that
demonstrate its continued commitment to using the specific parenting plan
terminology. This time, the legislature amended the first degree custodial
9
State v. Veliz, No. 85860-8
interference statute (under which Veliz was charged) to match the 1989
amendments to the second degree custodial interference statute:
A parent of a child is guilty of custodial interference in the first
degree if the parent takes, entices, retains, detains, or conceals the
child, with the intent to deny access, from the other parent having the
lawful right to time with the child pursuant to a court-ordered parenting
plan, and:
(a) Intends to hold the child permanently or for a protracted period;
or
(b) Exposes the child to a substantial risk [of] illness or physical
injury; or
(c) Causes the child to be removed from the state of usual
residence.
LAWS OF 1994, ch. 162, § 1(2) (codified at RCW 9A.40.060(2)). The legislature also
inserted a reference to first degree custodial interference in the warning provision -
required in all parenting plan orders in RCW 26.09.165, amended by LAWS OF 1994,
ch. 162, § 2. These amendments addressed the need for consistency between the
first and second degree custodial interfere.nce provisions and authorized felony
charges against parents who violated parenting plan provisions. Indeed, the final
legislative report provided that "[t]he effect of having amended only custodial
interference in the second degree to reflect the updated terminology of the parenting
plan is that a parent who denies the other parent access to a child when a parenting
plan is in effect is guilty only of a gross misdemeanor regardless of the extent or
nature of the denial." 1994 FINAL LEGISLATIVE REPORT, 53d Leg., at 68. These
amendments therefore show that the legislature intended the references to
parenting plans in the custodial interference statutes to refer, as a term of art, to the
specific parenting plan documents created in chapter 26.09 RCW.
10
State v. Veliz, No. 85860-8
The various legislative enactments outlined above evidence a continuing clear
legislative intent to incorporate the concept of the "parenting plan" into both our
domestic relations and criminal statutes. At every step, the legislature has sought to
make the first degree custodial interference provisions more consistent with the
policies and terminology underlying the parenting act of 1987. Accordingly, we hold
that the legislature intended "court-ordered parenting plan" as stated in RCW
9A.40.060(2) to be a term of art referring to the specific document provided for by
chapter 26.09 RCW. 5
D. Other provisions of Washington's domestic relations title distinguish between
parenting plans and orders including residential provisions
In contrast to chapter 26.09 RCW that primarily employs the term "parenting
plan," the legislature has directed courts to make "residential provisions for children"
in the context of non parental custody determinations under chapter 26.1 0 RCW and
custody decisions under Washington's Uniform Parentage Act (UPA), chapter 26.26
RCW. 6 The term "residential provisions" in these statutes permits the inclusion of
restraining orders enforceable under the DVPA, chapter 26.50 RCW. The
legislature's use of different terminology shows that the legislature means to
distinguish between residential provisions under chapters 26.10 or 26.26 RCW that
5
We note our agreement with the holding in State v. Pesta, 87 Wash. App. 515, 522, 942 P.2d 1013(1997), that the State need not prove all the actual elements of a parenting plan enumerated in RCW
26.09.184 or RCW 26.09.194 to properly prosecute a defendant for custodial interference under
RCW 9A.40.060(2). Consistent with Pesta, we hold only that there must actually be a parenting plan
ordered by a court in existence to satisfy an essential element of first degree custodial interference
charged under RCW 9A.40.060(2).
6
Chapter 26.09 RCW does use the term "residential provisions," but only as a discrete portion of a
parenting plan. See RCW 26.09.187(3).
11
State v. Veliz, No. 85860-8
can include DVPA restraining orders and parenting plans ordered under chapter
26.09 RCW.
Indeed, the legislature has expressed a clear policy choice to differentiate
Washington statutes related to third-party custody decisions from the 1987 parenting
act. See RCW 26.10.010 ("It is the intent of the legislature to reenact and continue
the law relating to third-party actions involving custody of minor children in order to
distinguish that body of law from the []1987 parenting act amendments to chapter
26.09 RCW .... "). Consistent with this clear intent, chapter 26.10 RCW allows
courts to "consider, approve, or make provision for ... [c]hild custody, visitation, and
the support of any child entitled to support." RCW 26.1 0.040(1 )(a) (emphasis
added). In other words, instead of providing for parenting plans in third-party custody
situations, the legislature adhered to the preexisting terminology of custody and
visitation. Similarly, the UPA employs the term "residential provisions." RCW
26.26.130(7) states in pertinent part that "[o]n the same basis as provided in chapter
26.09 RCW, the court shall make residential provisions with regard to minor children
of the parties, except that a parenting plan shall not be required unless requested by
a party." (Emphasis added.) This language indicates that the legislature intended to
create a distinction between the "residential provisions" entered under the UPA and
the "parenting plan" document. Moreover, as with the nonparental custody statutes,
the UPA permits courts to enter restraining orders or domestic violence protection
orders under chapter 26.50 RCW, RCW 26.26.130(9), and provides that violations of
such orders are criminal offenses under the DVPA, RCW 26.26.130(1 0).
12
State v. Veliz, No. 85860-8
In both the UPA and the nonparental custody statutes, the legislature has
opted for courts to make residential provisions for child custody rather than issue
formal parenting plans. Alongside these residential provisions, the legislature also
permits documents issued under chapters 26.1 0 and 26.26 RCW to include
restraining orders and domestic violence protection orders enforceable under the
DVPA. This demonstrates that the legislature has distinguished between parenting
plans and UPA/nonparental custody orders that include both restraining and
residential provisions. This further supports the conclusion that by the term
"parenting plan," the legislature means the specific document authorized under
chapter 26.09 RCW.
II. Protection orders under the DVPA are not parenting plans
The dissent insists that a domestic violence protection order under the DVPA,
chapter 26.50 RCW, is included in the definition of parenting plan. Dissent at 6. To
the contrary, the language of relevant DVPA provisions does not support this
proposition, and the 1987 amendments to the DVPA in the parenting act
demonstrate that the legislature did not intend DVPA orders to be parenting plans.
A. The language of the relevant DVPA provision precludes equating DVPA
orders to parenting plans
The DVPA allows the court to provide relief to a party suffering domestic
violence by inserting a child residential provision in a DVPA order: "On 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." RCW 26.50.060(1 )(d). The
statute goes on to read, "However, parenting plans as specified in chapter 26.09
13
State v. Veliz, No. 85860-8
RCW shall not be required under this chapter." ld. 7 When the legislature uses
different terms in the same statute, we presume that it intends different meanings. In
re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wash. 2d 834, 842, 215 P.3d 166(2009); State v. Mendoza, 165 Wash. 2d 913, 921, 205 P.3d 113 (2009). The dissent
and the Court of Appeals interpret RCW 26.50.060(1 )(d) as authorizing orders
creating the equivalent of a parenting plan. Veliz, 160 Wn. App. at 408. To the
contrary, a court entering a DVPA order is permitted to make "residential provision
with regard to minor children" not to create parenting plans. RCW 26.50.060(1 )(d).
The plain language of the statute itself distinguishes between "residential
provision[s]" and "parenting plans." In short, if the legislature had intended the
residential provisions in domestic violence protection orders to have the force of
parenting plans for the purposes of the custodial interference statute, it would have
said so by referring to such orders as parenting plans.
B. The 1987 parenting act limited a court's authority under the DVPA to make
custody and visitation determinations
The DVPA's legislative history buttresses our conclusion. Prior to 1987, the
DVPA authorized the court entering a domestic violence protection order to, "[o]n the
same basis as is provided in chapter 26.09 RCW, award temporary custody and
establish temporary visitation with regard to minor children of the parties, and
restrain any party from interfering with the custody of the minor children." Former
7
The dissent asserts that this "indicates that the legislature recognizes more than one type of
parenting plan, including parenting plans other than those created pursuant to chapter 26.09 RCW."
Dissent at 5-6. But the dissent reads too much into the language of RCW 26.50.060(d). The phrase
"parenting plans as specified in chapter 26.09 RCW" means simply that parenting plans, a term of
art, are specifically established in chapter 26.09 RCW.
14
State v. Veliz, No. 85860-8
26.50.060(3) (1985), amended by LAWS OF 1987, ch. 460, § 55. This broad language
suggests a domestic violence restraining order could include custody and visitation
provisions similar to those authorized under chapter 26.09 RCW.
In 1987, the legislature decided to incorporate the parenting plan concept into
the DVPA alongside several other statutes. The parenting act transformed the
language of former RCW 26.50.060 to its current form, allowing the court only to
make "residential provision with regard to minor children" but cautioning that
"parenting plans as specified in chapter 26.09 RCW shall not be required." RCW
26_.50.060(1 )(d). The contrast between the new statute and the old statute is stark.
The legislature removed all custody and visitation language from 26.50.060. It did
not, however, replace it with corresponding parenting plan language. This omission
indicates that the legislature did not intend DVPA orders to be parenting plans. This
further supports our holding that when it speaks of parenting plans, the legislature
refers to the term of art expressed in chapter 26.09 RCW, not the provisions of the
DVPA.
Ill. The State could have charged Veliz with first degree custodial interference
without showing the violation of a "court-ordered parenting plan"
The dissent asserts that it is important to interpret "court-ordered parenting
plan" to include residential provisions in a DVPA restraining order so that the State
can charge a felony for violation of a restraining order. Dissent at 8-9 (quoting FINAL
B. REP. on H.B. 2333, 53d Leg., Reg. Sess. (Wash. 1994)). The dissent also
accuses us of "prioritiz[ing] the rights of the criminal defendant over the rights of the
15
State v. Veliz, No. 85860-8
victims," dissent at 2, and "plac[ing] parents such as Lorena Velasco in an untenable
position," dissent at 9.
But the dissent's assertions wholly overlook the fact that the State has
another option available to charge a defendant with the felony of custodial
interference in the first degree. RCW 9A.40.060(1 ). In fact, the only provision that
requires the State to prove the existence of a "court-ordered parenting plan" is the
provision at issue in this case, RCW 9A.40.060(2).
By contrast, the State may charge a person with first degree custodial
8
interference without having to prove the existence of a parenting plan at all. It
appears rather plainly that subsection (1) of RCW 9A.40.060 would have sufficed to
charge Veliz without regard to the existence of a "court-ordered parenting plan."
Because the State could have charged Veliz under subsection (1) of the first degree
custodial interference statute, the State could have obtained a felony warrant
requiring the cooperation of Washington's sister states, which should assuage the
8
RCW 9A.40.060(1), the first degree custodial interference statute, provides:
A relative of a child ... is guilty of custodial interference in the first degree if, with
the intent to deny access to the child ... by a parent ... the relative takes, entices,
retains, detains, or conceals the child ... from a parent ... and:
(a) Intends to hold the child ... for a protracted period; or
(b) Exposes the child ... to a substantial risk of illness or physical injury; or
(c) Causes the child ... to be removed from the state of usual residence; or
(d) Retains, detains, or conceals the child ... in another state after expiration of
any authorized visitation period with intent to intimidate or harass a parent ... or
to prevent a parent ... from regaining custody.
RCW 9A.40.060(1 )'s term "[r]elative" is defined in the criminal code as "an ancestor, descendant, or
sibling .... " RCW 9A.40.010(5); see also State v. Ohrt, 71 Wash. App. 721, 724, 862 P.2d 140 (1993)
(holding that the term "ancestor" used in the definition of "relative" includes a parent).
16
State v. Veliz, No. 85860-8
dissent's concern. Furthermore, we do not neglect crime victims or leave them in
"untenable position[s]," dissent at 9, by requiring the State to charge the crime of first
degree custodial interference under one of the statutory provisions that it can prove.
CONCLUSION
We hold that when the legislature included the term "court-ordered parenting
plan" in RCW 9A.40.060(2), it meant parenting plans ordered by a court under the
specific provisions of chapter 26.09 RCW. The meaning of the term "parenting plan"
is thus its meaning as a term of art. Because there was no "court-ordered parenting
plan" in Veliz's case at the time he was charged under RCW 9A.40.060(2), there is
insufficient evidence to sustain Veliz's conviction. Accordingly, we reverse the Court
of Appeals and remand for dismissal of Veliz's conviction.
17
State v. Veliz, No. 85860-8
WE CONCUR.
18
State v. Veliz, No. 85860-8
Dissent by J.M. Johnson, J.
No. 85860-8
J.M. JOHNSON, J. (dissenting)-The majority errs by unnecessarily
limiting the definition of "court-ordered parenting plan" under RCW
9A.40.060(2) to documents created pursuant to chapter 26.09 RCW. I
would affirm the Court of Appeals and hold that when RCW 26.50.060
orders contain residential provisions for minor children, they are "court-
ordered parenting plan[s]." Accordingly, a violation of a domestic violence
protection order's residential provisions for children should constitute
custodial interference under RCW 9A.40.060(2). To hold otherwise would
be contrary to the rules of statutory construction and the legislature's express
intent concerning the treatment of crime victims.
The legislature has declared its intent to "ensure that all victims and
witnesses of crime are treated with dignity, respect, courtesy, and
sensitivity." RCW 7.69.010. The rights of victims, survivors, and witnesses
to crimes should be protected "in a manner no less vigorous than the
1
State v. Veliz, No. 85860-8
protections afforded criminal defendants." !d. The legislature has further
recognized the vulnerability of child victims, declaring that they must be
treated with "special care." RCW 7.69A.010. The majority's interpretation
of the statute prioritizes the rights of the criminal defendant over the rights
ofthe victims-the abducted child, N.V., and her mother, Lorena Velasco. I
respectfully dissent.
STANDARD OF REVIEW
We review questions of statutory interpretation de novo. City of
Spokane v. County of Spokane, 158 Wash. 2d 661, 672-73, 146 P.3d 893(2006). The fundamental objective of statutory interpretation is to ascertain
and carry out the legislature's intent. Dep 't of Ecology v. Campbell &
Gwinn, LLC, 146 Wash. 2d 1, 9-10, 43 P.3d 4 (2002). An undefined term will
"be given its plain and ordinary meaning unless a contrary legislative intent
is indicated." Ravenscroft v. Wash. Water Power Co., 136 Wash. 2d 911, 920-
21, 969 P.2d 75 (1998). "Plain meaning 'is to be discerned from the
ordinary meaning of the language at issue, the context of the statute in which
that provision is found, related provisions, and the statutory scheme as a
whole."' Lake v. Woodcreek Homeowners Ass'n, 169 Wash. 2d 516, 526, 243
P.3d 1283 (2010) (quoting State v. Engel, 166 Wash. 2d 572, 578, 210 P.3d
2State v. Veliz, No. 85860-8
1007 (2009) ). Only if the statute is ambiguous do we "resort to statutory
construction, legislative history, and relevant case law for assistance in
discerning legislative intent." Christensen v. Ellsworth, 162 Wash. 2d 365,
373, 173 P.3d 228 (2007).
The legislature has prescribed that "[t]he provisions of [the criminal
code] shall be construed according to the fair import of their terms but when
the language is susceptible of differing constructions it shall be interpreted to
further [four] general purposes." RCW 9A.04.020(2). These purposes are
as follows:
(a) To forbid and prevent conduct that inflicts or
threatens substantial harm to individual or public interests;
(b) To safeguard conduct that is without culpability
from condemnation as criminal;
(c) To give fair warning of the nature of the conduct
declared to constitute an offense;
(d) To differentiate on reasonable grounds between
serious and minor offenses, and to prescribe proportionate
penalties for each.
RCW 9A.04.020(1).
ANALYSIS
The plain and unambiguous language of RCW 9A.40.060 indicates
that "court-ordered parenting plan" includes domestic violence protection
3
State v. Veliz, No. 85860-8
orders that contain residential provisions for children. RCW 9A.40.060(2)
provides that:
A parent of a child is guilty of custodial interference in the first
degree if the parent takes, entices, retains, detains, or conceals
the child, with the intent to deny access, from the other parent
having the lawful right to time with the child pursuant to a
court-ordered parenting plan, and:
(a) Intends to hold the child permanently or for a
protracted period; or
(b) Exposes the child to a substantial risk of illness or
physical injury; or
(c) Causes the child to be removed from the state of usual
residence.
The statute itself does not define the term "court-ordered parenting plan."
Where a term is undefined, it should be given its plain and ordinary
meaning. Ravenscroft, 136 Wn.2d at 920-21. The plain meaning of a
"parenting plan" is "[a] plan that allocates custodial responsibility and
decision-making authority for what serves the child's best interests and that
provides a mechanism for resolving any later disputes between parents."
BLACK'S LAW DICTIONARY 1224 (9th ed. 2009). "Court-ordered parenting
plan" is not, as the majority claims, a term of art limited only to those
parenting plans created pursuant to chapter 26.09 RCW.
I agree with the Court of Appeals that the terms '"permanent
parenting plan"' and "'temporary parenting plan"' within the dissolution
4
State v. Veliz, No. 85860-8
provisions of chapter 26.09 RCW are instructive. State v. Veliz, 160 Wn.
App. 396, 405-06, 247 P.3d 833 (2011) (citing RCW 26.09.004(3), (4)).
"'Permanent parenting plan"' is defined as "a plan for parenting the child,
including allocation of parenting functions, which plan is incorporated in
any final decree or decree of modification in an action for dissolution of
marriage or domestic partnership, declaration of invalidity, or legal
separation." RCW 26.09.004(3) '"Temporary parenting plan"' is defined as
"a plan for parenting of the child pending final resolution of any action for
dissolution of marriage or domestic partnership, declaration of invalidity, or
legal separation which is incorporated in a temporary order." RCW
26.09.004(4). The meaning shared by these two definitions is "a plan for
parenting a child," which is the plain and ordinary meaning of "'parenting
plan."' Veliz, 160 Wn. App. at 405-06.
This interpretation is supported by RCW 26.50.060(1 )(d), which
requires domestic violence protection orders to make residential provisions
for minor children on the same basis as chapter 26.09 RCW. The section
further states that "parenting plans as specified in chapter 26.09 RCW shall
not be required under this chapter." RCW 26.50.060(1)(d). This indicates
that the legislature recognizes more than one type of parenting plan,
5
State v. Veliz, No. 85860-8
including parenting plans other than those created pursuant to chapter 26.09
RCW. If "court-ordered parenting plan" is a term of art referring only to
those parenting plans under chapter 26.09 RCW, then the language "as
specified in chapter 26.09 RCW" is superfluous. Accordingly, the
majority's construction of the term is improper, given that "[s]tatutes must
be interpreted and construed so that all the language used is given effect,
with no portion rendered meaningless or superfluous." Whatcom County v.
City ofBellingham, 128 Wash. 2d 537, 546,909 P.2d 1303 (1996).
Here, the domestic violence protection order contained a plan for
parenting N.Y. The order included residential provisions such that N.Y.
would live with her mother during the week and see her father on weekends.
The parties respected this agreement for several months until the defendant
abducted N.Y. out of state in violation of the court order. This protection
order, which contained a plan for parenting the parties' child, should be
considered a court-ordered parenting plan for the purposes of RCW
9A.40.060(2).
Although we need look no further than the plain and unambiguous
language of the statute, the public policy supporting the Domestic Violence
Prevention Act (DVP A), chapter 26.50 RCW, and the custodial interference
6
State v. Veliz, No. 85860-8
statute supports my conclusion. In 1984, the legislature enacted chapter
26.50 RCW, the DVP A, which authorizes orders of protection in cases of
domestic violence. RCW 26.50.060. These court orders are of vast
importance to women like Lorena Velasco, the mother here. First, they can
be obtained without the assistance of a lawyer, which is critical for those
who may not have adequate access to legal resources. Second, the parenting
provisions are enforceable, so victims of domestic abuse are able to protect
not only themselves, but also their children.
Child abduction is one of the most effective ways that domestic
violence perpetrators control their victims. "Even after separation, batterers
use the children as pawns to control the abused party." WASH. STATE
GENDER AND JUSTICE COMM'N, DOMESTIC VIOLENCE MANUAL FOR JUDGES
2-36 (rev. ed. 2006). This tactic includes "[h]olding children hostage or
abducting the children in efforts to punish the abused party or to gain the
abused party's compliance." I d. at 2-3 7. Court orders under the DVP A are
strong enforcement mechanisms that hold domestic violence perpetrators
accountable for their actions. The majority's holding undermines this
mechanism, effectively expressing that the orders' residential provisions are
7
State v. Veliz, No. 85860-8
less meaningful than parenting plans created pursuant to chapter 26.09
RCW.
The policy supporting the custodial interference statute similarly
supports our interpretation. Washington's first degree custodial interference
statute is aimed at the exact conduct perpetrated by Jose V eliz-one parent
unlawfully depriving the other parent of time with the child. Under the
majority's holding, this conduct would be a violation ofRCW 9A.40.060(2)
only if there were a court-ordered parenting plan in place under chapter
26.09 RCW. According to the majority, the same conduct would not be
punishable under RCW 9A.40.060(2) if perpetrated in violation of a
domestic violence protection order, even if the order's residential provisions
for minor children met all the criteria for a chapter 26.09 RCW parenting
plan. Child abduction in violation of a court order threatens harm to the
child, the victim parent, and society. Furthermore, there is no risk that
enforcing the court order in this way could inhibit legitimate noncriminal
conduct. There is simply no basis to distinguish conduct that violates a
domestic violence protection order from identical conduct that violates a
parenting plan under chapter 26.09 RCW.
8
State v. Veliz, No. 85860-8
House Bill 2333 was enacted to address a potential problem arising in
child abduction cases: "If a parent removes the child from the state with the
intent to go underground, capturing the parent and returning the child may
be very difficult, because law enforcement agencies in other states do not act
on misdemeanor warrants from other states." FINAL B. REP. on H.B. 2333,
53d Leg., Reg. Sess. (Wash. 1994). Mr. Veliz may not have been arrested in
California but for the felony custodial interference charges against him, and
N.V. may never have been returned to her mother. The majority's holding
places parents such as Lorena Velasco in an untenable position. The only
available resource to protect them and their children may be to obtain a
domestic violence protection order, but the majority holds that such an order
cannot be the basis for a felony charge under RCW 9A.40.060(2). In such a
case, a parent may be unlawfully separated from her abducted child, but out-
of-state law enforcement agencies may be unable to aid in her child's safe
return.
CONCLUSION
Because the rights of victims should be protected at least as
vigorously as those of criminal defendants, I respectfully dissent. I would
affirm the Court of Appeals and hold that when RCW 26.50.060 orders
9
State v. Veliz, No. 85860-8
contain residential provisions for minor children, they are "court-ordered
parenting plan[s]." A violation of a domestic violence protection order's
residential provisions for children would accordingly satisfy the violation of
a "court-ordered parenting plan" requirement for prosecution of custodial
interference under RCW 9A.40.060(2).
10
State v. Veliz, No. 85860-8
11