Shayna M. Harris, V. Ronald A. Smith ( 2021 )

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SHAYNA M. HARRIS, ) No. 81021-9-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
RONALD A. SMITH, JR. )
)
Appellant. )
)
ANDRUS, A.C.J. — Ronald Smith appeals the trial court’s order granting his
former partner’s petition for a domestic violence protection order (DVPO),
protecting herself and their teenage daughter. Smith challenges the DVPO on the
basis that the trial court considered inadmissible evidence, the order violates
federal and state child dependency statutes, and that he was denied procedural
due process. We disagree and affirm the order.
FACTS
Shayna Harris filed a petition for a DVPO on November 18, 2019, seeking
to restrain her former partner, Ronald Smith, from having contact with her and their
teenage daughter, H.E. In the petition, Harris alleged that H.E., who was living
with Smith at the time, went missing on November 15, 2019 and Smith refused to
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call the police due to his criminal activities. Harris alleges that, when H.E. returned
home, she exhibited symptoms of sexual assault, such as isolating herself,
withdrawing, and not paying attention to her personal hygiene, and told Harris she
was scared to speak to anyone about her father. Harris further alleged that Smith
had repeatedly assaulted her, threatened her with bodily harm, trashed her house,
and prevented her from seeing H.E. Harris recounted one instance where Smith
refused to let Harris see H.E. unless Harris engaged in acts of prostitution for
Smith’s financial benefit. In another instance, when H.E. came to Harris’s house
in January 2019, Smith threatened to beat Harris and have her evicted if Harris did
not return H.E. to Smith. Harris and Smith do not have a parenting plan governing
custody of H.E.
On December 2, 2019, Smith submitted a declaration in response to
Harris’s petition, alleging that he was H.E.’s sole care provider for seven years and
that Harris had repeatedly abandoned H.E. so that she could “run the streets. . . .
with different men.” Smith denied Harris’s accusations of neglect or abuse of H.E.
On December 16, 2019, the court ordered the Department of Children,
Youth, and Family (DCYF) or Child Protective Services (CPS) to provide the court
with information regarding any investigation into H.E. or her parents. It ordered
Family Court Services (FCS) to provide a report to the court regarding any DCYF
or CPS investigation. FCS provided the court with a summary of its contact with
CPS in a December 31, 2019 status report. In this report, FCS informed the court
that CPS had an open “Family Assessment Response” (FAR) investigation based
on Harris’s allegation that H.E. suffered from a skin condition that Smith was not
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adequately treating and H.E. fled her father’s home because the home was unsafe.
The CPS investigator reported to FCS that H.E. expressed she felt safe at both
parents’ homes and denied Smith touched her inappropriately. H.E. did report,
however, that Smith had in the past hit her with a belt and a clothes hanger. CPS
indicated it had insufficient information to indicate that there were safety risks or
concerns with either parent at that time.
At the January 3, 2020 hearing on Harris’s petition, Harris described several
incidents where Smith was violent and abusive to her in the presence of H.E.
During one incident in 2007, when Harris attempted to prevent Smith from taking
H.E., Smith kicked down the door to Harris’s house before smashing her head
through the side mirror of a neighbor’s car. Harris reported the incident to the
police, but the charges were ultimately dismissed. Harris later received section 8
housing, but when she informed Smith that he could not live there with her and
H.E., he destroyed the apartment and Harris was evicted. In 2014, Smith, without
informing Harris, transferred H.E. to a different elementary school and prevented
Harris from contacting H.E. for a year. Harris also testified that H.E. had told her
that Smith had slapped and choked H.E. and had witnessed prostitution in the
house. Harris testified that H.E. has been diagnosed with post-traumatic stress
disorder as a result of living with Smith. 1
Smith, appearing pro se, also testified at the hearing and generally denied
all allegations of abuse and neglect. Smith admitted that he had been previously
arrested for domestic violence for incidents occurring in the presence of his
1It appears that Harris also submitted a supplemental declaration in which she supplied additional
mental health records and police reports. Those materials are similarly not in the record before us.
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children. It also appears that Smith submitted under seal a psychiatric evaluation
of Harris dating from June 2003, a CPS summary report of a referral from July
2002, and a police report from the Kent Police Department from September 2019
in which the police indicated Harris had called police to report that she was the
victim of an assault by her then boyfriend, Darnell or Donald Wallace, and was
being forced to prostitute for him.
Smith also called his sister, Sheila, to testify at the protection order hearing.
She stated she had never witnessed any domestic violence between Smith and
Harris and that H.E. reported that she was afraid of a man Harris was involved
with.
In making its oral ruling, the court indicated it had considered all of this
testimony as well as the December 31, 2019 FCS status report, the “JABS” history
with respect to both Harris and Smith, 2 H.E.’s declaration, and police reports from
the Kent and Des Moines Police Departments.
Based on this evidence, the trial court found by a preponderance of the
evidence that Smith had committed domestic violence against both Harris and H.E.
and entered a protection order restraining Smith from contacting either individual
for a period of one year. The order provides that H.E. may initiate contact with
Smith via telephone or email and allows Smith two hours of supervised in-person
contact with H.E. per month. The order also includes an order to surrender
2 “JABS” refers to the Judicial Access Browser System which provides judicial officers access to
data stored in the Judicial Information System (JIS) database. W ASHINGTON JUDICIAL ETHICS
OPINION 13-07, 2013 WL 5780438. JABS uses a web browser to display case history information
on certain kinds of cases filed in superior, district and municipal courts in Washington. Id. The JIS
database serves as a statewide clearinghouse for criminal history information, domestic violence
protection orders and outstanding warrants. http://www.courts.wa.gov/jis/
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weapons and a requirement that Smith participate in domestic violence perpetrator
treatment.
ANALYSIS
Smith challenges the trial court’s findings and the terms of the protection
order. We review a superior court’s decision to grant a protection order for abuse
of discretion, In re Marriage of Stewart, 133 Wn. App. 545, 550, 137 P.3d 25(2006).
Smith first argues that the trial court considered inadmissible evidence in
the form of H.E.’s declaration and police reports from Smith’s prior domestic
violence cases. Although neither H.E.’s declaration nor the police reports are in
the appellate record, we can identify no abuse of discretion in the trial court’s
evidentiary rulings.
First, the rules of evidence do not apply to protection order proceedings
initiated under chapter 26.50 RCW. ER 1101(c)(4); Gourley v. Gourley, 158 Wn.2d
460, 467, 145 P.3d 1185 (2006). Failing to follow the rules of evidence cannot be
an abuse of discretion if those rules are inapplicable to the proceeding.
Second, Smith fails to articulate why considering H.E.’s declaration was an
abuse of discretion. He claims that the court did not adhere to the “formal
requirements for a valid court declaration pertaining to a minor,” but does not
identify what these requirements are, nor explain how H.E.’s declaration failed to
meet them. He also argues that H.E. “may not have written that declaration in the
first place,” but offered no evidence to support this allegation.
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Smith similarly fails to demonstrate how the admission of the police reports
concerning his past domestic violence arrests violates ER 103 and 104. 3 He only
argues that the charges in those cases are over ten years old and were ultimately
dismissed. But this argument attacks the weight of the evidence, not its
admissibility.
Finally, neither H.E.’s declaration nor the police reports are in the record on
review. The party seeking review has the burden of perfecting the record so that
the reviewing court has before it all of the relevant evidence. State v. Vazquez, 66
Wn. App. 573, 583, 832 P.2d 883 (1992). An insufficient record on appeal
precludes review of the alleged errors. Allemeier v. University of Wash., 42 Wn.
App. 465, 472–73, 712 P.2d 306 (1985), review denied, 105 Wn.2d 1014 (1986).
Smith has failed to provide this court with an adequate record to review his
arguments relating to H.E.’s declaration and the police reports and we decline to
review this assignment of error.
Smith next argues that the court’s order violated provisions of the Juvenile
Court Act, chapter 13.34 RCW. But the Juvenile Court Act governs cases related
to the dependency of a child and the termination of the parent-child relationship; it
is inapplicable to the question of whether the trial court properly granted a domestic
violence protection order under chapter 26.50 RCW. His citation to 42 U.S.C. §
671(a)(15)(B)’s requirement that state foster care plans include reasonable efforts
to preserve families to be eligible for federal funding is also inapposite to the
present issue.
3Smith does not argue that the police reports violate ER 404(b)’s prohibition of evidence of past
crimes to show action in conformity therewith.
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Smith lastly argues that the court’s order denied him his due process rights
under the Fifth and Fourteenth Amendments to the United States Constitution. We
reject this argument as well.
We review Smith’s constitutional challenge de novo. Shoop v. Kittitas
County, 149 Wn.2d 29, 33, 65 P.3d 1194 (2003); Aiken v. Aiken, 187 Wn.2d 491,
501, 387 P.3d 680 (2017). “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62(1965)). The level of procedural protection required varies based on circumstance.
Id. at 334.
Smith asserts that he was denied due process because the court did not
allow him to directly cross examine Harris. But chapter 26.50 RCW “does not
require a trial judge to allow live testimony or cross-examination in every protective
order proceeding. Instead, whether live testimony or cross-examination is required
will turn on the Mathews balancing test.” Aiken, 187 Wn.2d at 499.
In evaluating the process due in a particular situation, [Washington
courts] consider (1) the private interest impacted by the government
action, (2) “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards,” and (3) the
government interest, including the additional burden that added
procedural safeguards would entail.
Aiken, 187 Wn.2d at 501-02 (quoting Mathews, 424 U.S. at 335). Our Supreme
Court has repeatedly held that a parent’s interest in making decisions regarding
the care, custody, and control of their children does not outweigh the government’s
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compelling interest in preventing domestic violence. Id. at 502-03; Gourley, 158
Wn.2d at 468. Turning to the second Mathews factor, we conclude that the
procedural safeguards employed by the court were sufficient.
First, although the court did not allow Smith to confront Harris directly, it did
allow Smith to cross examine her by identifying on the record each question he
wanted to ask with the court rephrasing them in an appropriate manner. For
instance, Harris testified that Smith had in the past exerted control over her
finances, trashed her home, and caused her to be evicted from transitional or
section 8 housing. During cross examination, Smith asked: “Did Shayna Harris
call [the] police any other times when she is saying that I trashed her house,
controlled her money -- I mean did she call the police during those times?” After
laying foundation for the question, the court asked Harris: “And if I understand
correctly, either in the context of the YWCA, that transitional housing, or the section
8 – the incident at the section 8 -- were the police ever called about those?” Harris
admitted she did not call the police about those incidents.
Smith contends that this procedure violated his due process rights because
the court did not ask “the particular questions [he] had for Shayna Harris.” But the
record does not support this contention. The court did ask Harris the questions
Smith posed, both during cross examination, and when Smith called Harris to the
stand as his own witness. Other than questions Harris objected to as irrelevant,
there was only one question the court declined to ask Harris. In relation to Harris’s
allegations that Smith “pimped prostitutes,” Smith asked “is Shayna herself actually
a prostitute?” The court refused to pose this question to Harris, stating that the
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question “would absolutely trigger her right against self-incrimination and she has
already testified in terms of what her -- what her recollection was of what happened
back in 2004, so I am not -- and I apologize but I am not going to ask that.” Nothing
in the record supports Smith’s argument that his ability to cross examine Harris
was so hampered as to deny him due process.
Washington courts have repeatedly recognized the Domestic Violence
Prevention Act (DVPA) offers respondents in a DVPO proceeding sufficient
procedural protections. Aiken, 187 Wn.2d at 502; Gourley, 158 Wn.2d at 468-69.
The provisions of the DVPA
satisfy the two fundamental requirements of due process—notice
and a meaningful opportunity to be heard by a neutral decision
maker. The procedural safeguards include: (1) a petition to the court
setting forth facts under oath, (2) notice to the respondent, (3) a
hearing before a judicial officer where the petitioner and respondent
may testify, (4) the opportunity to file a motion to modify a protection
order, (5) a requirement that a judicial officer issue any order; and (6)
the right to appeal.
State v. Karas, 108 Wn. App. 692, 699-700, 32 P.3d 1016 (2001) (citing Spence
v. Kaminski, 103 Wn. App. 325, 334, 12 P.3d 1030 (2000). Smith enjoyed the
protection of each of these procedural safeguards in the present case.
Smith was timely served with Harris’s petition and had reasonable notice
and opportunity to be heard. He submitted his own declaration in response,
appeared and testified at the hearing, and called his own witnesses to support his
case. Moreover, the risk of the erroneous deprivation of Smith’s constitutional
interests is mitigated by the DVPO’s limited one-year term. See Mathews, 424
U.S. at 341 (holding that the possible length of wrongful deprivation of a property
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interest is an important factor in assessing the impact of official action on the
private interests).
Smith has failed to show how these numerous safeguards were so deficient
as to deprive him of due process. Our Supreme Court has repeatedly upheld these
procedural protections in the DVPO context and we adhere to those holdings here.
We affirm the trial court’s order grating the petition for a DVPO.
WE CONCUR:
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