Rodriguez v. Zavala ( 2017 )

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IN THE SUPREME COURT OF THE STATE OF ~~~~~~~~RK
ESMERALDA RODRJGUEZ, ) No. 93645-5
)
Appellant, )
)
v. ) En Banc
)
LUIS DANIEL ZAVALA, )
)
Respondent. ) Filed JUN 2 9 2017
GONZALEZ, J.-As a community, we have recognized the importance of
domestic violence as an offense against our ordered society and we have
committed to providing victims the maximum protection from abuse which the law
and those who enforce the law can provide. RCW 10.99.010. A victim of abuse
may seek this protection by filing a domestic violence protection order. RCW
26.50.020(1 ); see generally LA ws OF 1992, ch. 111. Esmeralda Rodriguez
petitioned for protection on behalf of her two-year-old son, arguing that Luis
Zavala's repeated threats against her son constitute "domestic violence" under the
plain language ofRCW 26.50.010(3) and that she may petition for a protection
order on her son's behalf based on her reasonable fear for him. We agree and
reverse.
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Rodriguez v. Zavala, No. 93645-5
BACKGROUND
In addition to an infant child, L.Z., 1 Esmeralda Rodriguez and Luis Zavala
shared a history of domestic violence. Over the course of their relationship, Zavala
repeatedly physically and emotionally assaulted Rodriguez. He shoved Rodriguez
to the ground while she was pregnant with L.Z., attempted to smother her with a
pillow, blamed her for his failings in life, pulled a knife on her and promised to cut
her into tiny pieces, threatened to kidnap L.Z., and said he would do something so
horrible to Rodriguez's daughters from a prior relationship that she would want to
kill herself. He threatened to kill her, her children, and himself.
Zavala tried to control Rodriguez. He restricted her communication with
friends and family members, and he appeared uninvited wherever she was when
she failed to return his phone calls.
Zavala's history of violence against Rodriguez reached its peak one day in
June 2015 after the couple had separated. At 2:00 a.m. that morning and in
violation of a previous restraining order, Zavala pounded on Rodriguez's door,
threatening to break windows unless she let him in. Rodriguez went to the door
and opened it enough to tell Zavala to leave. Taking advantage of the opening,
Zavala pushed past Rodriguez, cornered her, and began choking her. He told
Rodriguez he was going to "end what [he] started." Clerk's Papers at 5.
1
We will use the initials L.Z. throughout to refer to Rodriguez and Zavala' s minor child.
2
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Rodriguez v. Zavala, No. 93645-5
Rodriguez feared Zavala would make good on his past threats and kill her, her
daughters, their son, and then kill himself. After Zavala's hands wrapped around
her neck, Rodriguez reached out, grasped a kitchen knife, and stabbed Zavala and
screamed to her daughter to call for help. The police arrived and arrested Zavala.
A few days later, Rodriguez petitioned ex parte for a domestic violence
protection order for herself and her children, including L.Z. In her petition,
Rodriguez described the assault that compelled her to seek the order, as well as
Zavala's history of violence. The court issued a temporary order pending a full
hearing. The temporary order restrained Zavala from contacting Rodriguez and all
four children.
At the later protection order hearing, Zavala appeared. Rodriguez recounted
the choking incident and told the court that L.Z. had been asleep in another room
during the most recent attack. She feared Zavala would take their son based on
previous threats. Zavala admitted to coming to the house because he wanted to see
L.Z. but denied Rodriguez's allegations of abuse. The trial court issued a
protective order for Rodriguez and her daughters, but excluded L.Z., explaining
that the boy was not "present" during the assault or threatened at all. Report of
Proceedings at 10-11. According to the trial judge, "[L.Z.] wasn't involved in any
of this." Id. at 12. The order was effective for one year, expiring on June 26,
2016.
3
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Rodriguez v. Zavala, No. 93645-5
Rodriguez appealed. Among other things, she argued that her son should
have been included in the final protection order based on her fear that Zavala
would hurt L.Z. Rodriguez v. Zavala, No. 33649-2-III, slip op. at 7-8 (Wash. Ct.
App. Aug. 18, 2016) (unpublished),
https://www.courts.wa.gov/opinions/pdf/336492_unp.pdf. The Court of Appeals
affirmed, finding that a petitioner may seek relief based only on her fear of
imminent harm to herself. Id. at 9. We granted review and now reverse.
Rodriguez v. Zavala, 187 Wn.2d 1001, 3 86 P .3d 1092 (2017).
ANALYSIS
1. DEFINITION OF "DOMESTIC VIOLENCE"
Rodriguez contends that the trial court erred when it did not include L.Z. in
the domestic violence protection order. She asserts that the plain meaning of
"domestic violence" in RCW 26.50.010(3) allows her to seek a protection order
based on her fear for L.Z. We agree.
a. STANDARDS OF REVIEW
Whether to grant or deny a domestic violence protection order is generally
reviewed for abuse of discretion. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43
P.3d 50 (2002) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d
775 (1971)). However, a key question in this case is whether the definition of
"domestic violence" in chapter 26.50 RCW contemplates a parent's fear of harm
4
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Rodriguez v. Zavala, No. 93645-5
for a child at the hands of another parent. To answer this question we must
interpret the definition of "domestic violence" in RCW 26.50.010(3). We review
questions of statutory interpretation de novo to give effect to the legislature's
intentions. Dep 't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43
P.3d 4 (2002).
When possible, we derive legislative intent solely from the plain language
enacted by the legislature, considering the text of the provision itself, the context of
the statute in which the provision is found, related provisions, and the statutory
scheme as a whole. State v. Ervin, 169 Wn.2d 815,820,239 P.3d 354(2010); Campbell & Gwinn, 146 Wn.2d at 9-10. Plain language that is not
ambiguous does not require construction. State v. Delgado, 148 Wn.2d 723, 727,
63 P.3d 792 (2003) (quoting State v. Wilson, 125 Wn.2d 212,217, 883 P.2d 320(1994)).
b. STATUTORY DEFINITION OF "DOMESTIC VIOLENCE"
To commence a domestic violence protection order action, a person must
file a petition "alleging that the person has been the victim of domestic violence
committed by the respondent." RCW 26.50.020(1)(a). "Domestic violence" is
defined as
(a) physical harm, bodily injury, assault, or the infliction of fear of imminent
physical harm, bodily injury or assault, between family or household
members; (b) sexual assault of one family or household member by another;
5
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Rodriguez v. Zavala, No. 93645-5
or (c) stalking as defined in RCW 9A.46.110 of one family or household
member by another family or household member.
RCW 26.50.010(3) (emphasis added).
When read together, the relevant provisions explain that any person may
petition for protection by alleging that the person has been the victim of "domestic
violence"-that is, the infliction of fear of imminent physical harm between family
members. RCW 26.50.020(l)(a), .010(3)(a). The Court of Appeals construed
"this language to be the fear possessed by the one seeking protection, not fear that
another family member has of harm to the one for whom protection is sought."
Rodriguez, No. 33649-2-III, slip op. at 9.
The Court of Appeals's interpretation is unnecessarily narrow. By relating
the fear of harm back to the petitioner, it ignores the final prepositional phrase
"between family or household members." 2 RCW 26.50.010(3)(a). This phrase
demonstrates that the definition of "domestic violence" is not as limited as the
Court of Appeals concluded. It is true that a petitioner must allege he or she is a
victim of domestic violence and that "domestic violence" is the fear of imminent
physical harm between family members. But the definition does not state that this
2
Under the comma corollary to the last antecedent rnle, the phrase "between family members"
modifies "physical harm, bodily injury, assault, or the infliction of fear thereof." See City of
Spokane v. Spokane County, 158 Wn.2d 661, 673, 146 P.3d 893 (2006) (the presence of a
comma before the qualifying phrase is evidence that the qualifier is intended to apply to all
antecedents).
6
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Rodriguez v. Zavala, No. 93645-5
fear must be between a petitioner and a perpetrator. Indeed, the statute's definition
lists fear between family or household members without restriction. Because
domestic violence includes the infliction of fear of harm between family members
generally, the definition includes a mother's fear of harm to her child by that
child's father. The language of the definition is plain and unambiguous.
The context of the statute, related provisions, and statutory scheme as a
whole also indicate that "domestic violence" in RCW 26.50.010(3) was intended to
cover more than merely a petitioner and a perpetrator. 3 A person may seek a
protection order "on behalf of a minor family or household members" under RCW
26.50.020(1)(a). RCW 26.50.010(6) defines "family or household members"
broadly to include an individual's current and former spouses and domestic
partners, individuals with a child in common regardless of marital status, adult
persons related by blood or marriage, adult persons presently or previously
residing together, dating relationships, and those with biological or legal parent-
child relationships (including stepparents and stepchildren and grandparents and
grandchildren). This definition reflects the legislative recognition that violence in
the home encompasses many different familial and household roles; violence does
not distinguish on the basis of relationship.
3
Indeed, the court included in the protection order Rodriguez's daughter who called the police
and Rodriguez's two other daughters, who were not directly involved in the assault.
7
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Rodriguez v. Zavala, No. 93645-5
Moreover, a person does not have to be a victim of domestic violence to be
included in a protection order. RCW 26.50.060 affords trial courts substantial
discretion to protect victims and their loved ones. The provision explains that a
trial court may bar a respondent from going to the "day care or school of a child"
or having "any contact with the victim of domestic violence or the victim's
children or members of the victim's household" and that, notably, the court may
order "other relief as it deems necessary for the protection of the petitioner and
other family or household members sought to be protected." RCW
26.50.060(l)(b), (h), (f). If the Court of Appeals's reading of"domestic violence"
is correct and an individual must personally appreciate the threat of violence to be
included in a protection order, it makes little sense for the legislature to enact
.060(1 )(b ), (h), and (f), provisions that specifically protect those who are not
victims and were not present when the violence or threat of violence occurred. The
Court of Appeals's interpretation would render these sections meaningless. Cf
Whatcom County v. City ofBellingham, 128 Wn.2d 537, 546, 909 P.2d 1303(1996) (statutes must be interpreted and construed so that all the language used is
given effect, with no portion rendered meaningless or superfluous).
The legislative intent of the Domestic Violence Prevention Act (DVP A) (ch.
26.50 RCW) further supports that "domestic violence" includes a petitioner's fear
of harm between family members. Washington lawmakers expressly found that
8
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Rodriguez v. Zavala, No. 93645-5
"[ d]omestic violence is a problem of immense proportions affecting individuals as
well as communities." LA ws OF 1992, ch. 111, § 1. "Domestic violence must be
addressed more widely and more effectively in our state: Greater knowledge by
professionals who deal frequently with domestic violence is essential ... to reduce
and prevent domestic violence by intervening before the violence becomes severe"
and "to encourage domestic violence victims to end abuse, leave their
abusers, [and] protect their children." Id.; Danny v. Laidlaw Transit Servs., Inc.,
165 Wn.2d 200,213, 193 P.3d 128 (2008). These goals are thwarted by excluding
a threatened child from a protection order because that child may not have known
of the threat or was too young to speak. In this case, Zavala assaulted Rodriguez
when she was pregnant with L.Z., and also threatened to kidnap and kill the child.
In light of the legislature's findings, Rodriguez's petition presented the statutorily
appropriate time to intervene-before Zavala's violent threats against L.Z.
escalated to more violent acts.
The plain language ofRCW 26.50.010(3), related statutes, and statutory
scheme demonstrate that the definition of "domestic violence" allows a petitioner
to seek relief based on a general fear of harm between family members. To
conclude that "domestic violence" means the fear possessed only by the one
seeking protection not only conflicts with the statute's plain language, it would
leave unprotected a vulnerable population: threatened children. Even more
9
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Rodriguez v. Zavala, No. 93645-5
acutely, such an interpretation would fail to protect infants and developmentally
delayed children. These are the most vulnerable of our vulnerable populations.
Excluding these children from protection orders because they fail to or cannot
show fear of a harm they may not understand subjects them to violence the
legislature expressly intended to prevent.
Therefore, Rodriguez's fear that Zavala would harm L.Z. constitutes
domestic violence under RCW 26.50.010(3) and the child should have been
included in the protection order. Accordingly, we reverse the Courts of Appeals
and the trial court's ruling.
2. HARM AND EXPOSURE TO DOMESTIC VIOLENCE
Rodriguez also contends that exposure to domestic violence is harmful and
itself constitutes domestic violence under the DVP A. Rodriguez and amicus
submitted multiple psychological studies supporting her contention to this court
and to the Court of Appeals. See Pet. for Review at 15-18; App.'s Opening Br. at
8-13; Br. of Amicus Curiae Child Justice, Inc. at 8-15. 4
4
In its amicus curiae brief, the American Civil Liberties Union of Washington (ACLU)
characterized Rodriguez's argument as asking this court to mandate that a child exposed to
domestic violence be "automatically included as a person with whom contact is prohibited under
a domestic violence protection order ('DVPO')" and "if the person against whom the DVPO is
issued is the child's other parent, the DVPO should deny all contact with the child." Br. of
Amicus Curiae ACLU at 1-2. The ACLU warns against this approach because it would
circumvent parenting plans and infringe on a parent's fundamental right to raise his or her child.
The warning would be well taken if this were a fair characterization of Rodriguez's argument.
But Rodriguez has never argued for a "blanket rule that contact between an abuser and his or her
children be automatically prohibited when a child has been exposed to domestic violence."
10
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The Court of Appeals declined to reach the issue, concluding that Rodriguez
was raising a new argument because she had not presented the studies to the trial
court or filed a RAP 9.1 l(a) motion for new evidence on review. Rodriguez, No.
33649-2-III, slip op. at 9 (citing In re Det. ofAmbers, 160 Wn.2d 543,557 n.6, 158
P.3d 1144 (2007); RAP 9.1 l(a); State v. Ziegler, 114 Wn.2d 533, 541, 789 P.2d 79(1990)). As Rodriguez notes, she alleged L.Z. was in her home when she was
attacked by Zavala and she "requested that the [trial cJourt determine whether
these facts met the definition of domestic violence. Argument on appeal that
exposure to domestic violence is harmful to children and constitutes domestic
violence, as defined under the DVPA, was just that; argument, not a new issue."
Pet. for Review at 14-15. Considering that she was pro se, as many petitioners are,
the argument was well presented. Whether a child's presence in a violent home
App' s Answer to Amicus Curiae ACLU at 2-3. Indeed, the decision to include a child in a
protection order prohibiting a parent from committing acts of domestic violence against the child
is discretionary and based on the trial court's determination of necessity. Id. at 5 (citing RCW
26.50.060(1)). Further, provisions in domestic violence protection orders are subject to
parenting plans. See In re Marriage of Barone, 100 Wn. App. 241,247,996 P.2d 654 (2000)
(protection orders may not function as de facto modifications of permanent parenting plans and
child support decrees). The ACLU also asks us to reaffirm that there must be a finding of
"reasonable fear of future harm based on the actual facts of the case" in order to restrict a
parent's fundamental liberty interest in contacting his or her child. Br. of Amicus Curiae ACLU
at 4. As Rodriguez states, this standard conflicts with the plain language of the DVPA. RCW
26.50.030 requires a petitioner to allege that domestic violence exists and that the petitioner was
the victim of domestic violence by the respondent. Where a protection order restrains an
individual from contacting his or her minor children, the restraint must be for a fixed period not
to exceed one year, renewable after another hearing and subject to a dissolution or parenting plan
action under chapter 26.09 or 26.26 RCW. RCW 26.50.060(2). No showing of "actual risk of
future harm" is required. RCW 26.50.060(2); see also Aiken v. Aiken, 187 Wn.2d 491,498, 501,
387 P.3d 680 (2017) (discussing chapter 26.50 RCW procedural protections).
11
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Rodriguez v. Zavala, No. 93645-5
meets the definition of "domestic violence" relates to the question of whether the
exposure to said violence is harmful under the DVPA, so we will address it here.
RAP 2.5 (reviewing courts possess discretion to decide whether an argument was
sufficiently raised at trial); see also In re Estate ofMcKiddy, 47 Wn. App. 774,
779-80, 737 P.2d 317 (1987) (the appellate court considered an issue that
"arguably related" to issues raised in the trial court), overruled on other grounds by
In re Estate ofHansen, 128 Wn.2d 605, 910 P.2d 1281 (1996).
We hold that exposure to domestic violence is harmful under the DVPA.
The harm caused by domestic violence can be physical or psychological. As
discussed above, RCW 26.50.010(3) defines "domestic violence" as "[p]hysical
harm ... or the infliction of fear of imminent physical harm, bodily injury or
assault." At least one Washington court has held a child's fear for a parent brought
about by witnessing one parent assault the other is a psychological harm that
qualifies as domestic violence and is a statutory basis for a protection order. In re
Marriage of Stewart, 133 Wn. App. 545, 551, 137 P.3d 25 (2006). According to
Stewart, a child is psychologically harmed or placed in fear by observing violence
against a family member.
Scholarly research supports the conclusion that exposure to domestic
violence is a simpler, more insidious method of inflicting harm. While exposure to
abuse may not leave visible scars, the secondary physical and psychological effects
12
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Rodriguez v. Zavala, No. 93645-5
of exposure are well documented. See, e.g., Danny, 165 Wn.2d at 212-13 ("[t]he
legislature has specifically recognized that children 'are deeply affected by the
violence' in their homes" (quoting LAWS OF 1991, ch. 301, § 1)); DAVID
FINKELHOR ET AL., U.S. DEP'T OF JUSTICE, JUVENILE JUSTICE BULLETIN:
CHILDREN'S EXPOSURE TO VIOLENCE, CRIME, AND ABUSE: AN UPDATE 2-3 (Sept.
2015) (discussing national survey examining childhood exposure to domestic
violence), http://www.ojjdp.gov/pubs/248547 .pdf [https://perma.cc/X8J6-TNSG];
ALICIA SUMMERS, NAT'L COUNCIL OF JUVENILE & FAMILY COURT JUDGES
PERMANENCY PLANNING FOR CHILDREN DEP'T, CHILDREN'S EXPOS1JRE TO
DOMESTIC VIOLENCE: A GUIDE TO RESEARCH AND RESOURCES 8 (2006) (exploring
the detrimental consequences of domestic violence exposure on the "unseen
victims "-children),
http://www.ncjfcj.org/sites/default/files/Childrens%20Exposure%20to%20Violenc
e.pdf [https://perma.cc/DU7A-QR4G]; H. LEIN BRAGG, U.S. DEP'T OF HEALTH &
HlJMAN SERVS., CHILD PROTECTION INFAMILIES EXPERIENCING DOMESTIC
VIOLENCE 9-12 (2003),
https://www.childwelfare.gov/pubPDFs/domesticviolence.pdf
[https://perma.cc/9KHA-9XFB].
In addition to witnessing violence, hearing and seeing its effects on loved
ones may harm a child's brain development and lead to learning disabilities, put
13
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Rodriguez v. Zavala, No. 93645-5
children under emotional stress, and contribute to an increase in anxiety, sleep
disorders, and posttraumatic stress disorder. Pet. for Review at 15-16 ( citing
multiple scientific studies in support); see also State v. Janes, 121 Wn.2d 220, 223-
28, 850 P.2d 495 (1993) (17-year-old murdered his stepfather after years of direct
and indirect exposure to domestic violence); Nicholson v. Williams, 203 F. Supp.2d
153, 197-98 (E.D.N.Y. 2002) (noting studies on the emotional and physical
ramifications for children exposed to domestic violence), vacated in part on other
grounds by Nicholson v. Scoppetta, 116 F. App'x 313,316 (2d Cir. 2004)
(unpublished). More importantly, our legislature has recognized that domestic
violence is "at the core of other major social problems: Child abuse, other crimes
of violence against person or property, juvenile delinquency, and alcohol and drug
abuse." LAWS OF 1992, ch. 111, § 1.
Ample evidence supports the view that direct and indirect exposure to
domestic violence is harmful. Here, L.Z. was in the house while his father choked
his screaming mother at 2:00 a.m. in violation of a no contact order. It may well
be that the infant heard these violent acts. It strains common sense to think that
L.Z. was not somehow exposed to domestic violence given the facts of this case.
Therefore, we hold that such exposure constitutes domestic violence under chapter
26.50 RCW and L.Z. was a victim of that abuse.
14
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3. THE TRIAL COURT ABUSED ITS DISCRETION
The trial court abused its discretion in finding that L.Z. was not involved in
domestic violence where Zavala was threatening the entire family. An abuse of
discretion is found when a judge's decision is exercised on untenable grounds or
for untenable reasons. State v. Powell, 126 Wn.2d 244,258, 893 P.2d 615 (1995).
A decision is based untenable reasons if it is based on an incorrect standard. In re
Marriage ofLittlefield, 133 Wn.2d 39, 47,940 P.2d 1362 (1997) (citing State v.
Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)). The court possessed
clear authority to issue a protection order under these facts, regardless of the
existence or absence of a parenting plan. As discussed above, the trial court
applied the wrong legal standard in reviewing the definition of "domestic violence"
and abused its discretion.
CONCLUSION
Zavala's violent threats against L.Z. are "domestic violence" under the plain
language ofRCW 26.50.010(3), and Rodriguez properly petitioned for a protection
order on L.Z.'s behalf based on her reasonable fear for him. Accordingly, we
reverse the Court of Appeals. We also conclude that exposure to domestic
violence constitutes harm under the DVP A and qualifies as domestic violence
under chapter 26.50 RCW. Because the trial court failed to consider the harm to
L.Z. based on an incorrect reading of .010(3), it abused its discretion.
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WE CONCUR:
16