Oral Argument June 23, 2014
Appeal from Cowlitz Superior Court. Docket No: 11-1-00533-7. Judge signing: Honorable Michael H Evans. Judgment or order under review. Date filed: 08/23/2012.
Lisa E. Tabbut ; and Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for appellants.
Susan I. Baur, Prosecuting Attorney, and James Smith, Deputy, for respondent.
Authored by Rich Melnick. Concurring: Bradley A. Maxa, Jill M Johanson.
[184 Wn.App. 622]
Jeffrey and Rebecca Trebilcock appeal their bench trial convictions and sentences for criminal mistreatment in the first degree of J.T. and criminal mistreatment in the third degree of A.T. We reject Rebecca's arguments that her sentence violates due process because the trial judge relied on his own personal religious preferences when sentencing her, her exceptional sentence violates her Sixth and Fourteenth Amendment rights to a jury determination of aggravating factors, and her exceptional sentence improperly relies on impermissible factors. In the unpublished portion of this opinion, we reject the Trebilcocks' other arguments except for Jeffrey's individual argument that the trial court improperly imposed substance [184 Wn.App. 623] abuse treatment as part of his sentence. We remand for the trial court to strike the substance abuse treatment from Jeffrey's sentence. We otherwise affirm the Trebilcocks' convictions and sentences.
¶ 2 The Trebilcocks lived in rural Cowlitz County. They have four biological sons and, in 2004, began adopting children. The Trebilcocks first adopted two biological siblings: J.T., born in 1997, and A.T., born in 1999. Subsequently, the Trebilcocks adopted three more children: N.T., born in 1999, T.T., born in 2001, and G.T., born in 2002.
¶ 3 J.T., N.T., and A.T. experienced severe neglect and abuse while living with the Trebilcocks. The children were not allowed to try different foods. The Trebilcocks would make J.T. and occasionally A.T. eat from a " pig trough." 3B Report of Proceedings (RP) at 646. J.T. and A.T. would also be forced to eat outdoors in the cold. The children would be denied food altogether if they did not complete their chores or schoolwork. On occasion, they would have to steal food to survive, from bread and fruit to dog food, goat food, and toothpaste. The Trebilcocks put an alarm in the kitchen to prevent the children from stealing food. When the Trebilcocks caught the children stealing food, they would spank the children with a wooden paddle.
¶ 4 J.T. in particular spent a great deal of time outside doing chores barefoot. In order to ensure that he did not get the carpet dirty, he had to have his feet checked before he entered the house. At times J.T. would stand outside in the cold for hours, waiting for someone to check his feet so he could go back inside. The Trebilcocks made J.T. wash his clothes outside in a bucket and hang them to dry. Sometimes his clothes would not dry and he had to wear wet clothing. J.T. also had to wash his bed sheets in the bucket outside, and if the sheets did not dry, he had to sleep without sheets. He was frequently cold at night.
[184 Wn.App. 624] ¶ 5 The Trebilcocks' actions gravely affected J.T.'s health and development. Between the ages of 6 and 13, J.T. lost weight, going from a " slightly above average" weight to less than the third percentile. 6B RP at 1358. As early as 2008, medical professionals recognized that J.T. " did not have anything close to normal growth for his age." 6B RP at 1321. In March 2011, J.T. was brought to a pediatric clinic in a " nearly dead" state. 6B RP at 1368. J.T. could not walk without stumbling. He was trembling and had significant hypothermia. He had a heart rate equivalent to one of an unconscious child. He weighed 49 pounds, stood 50 inches tall, had a concave stomach, and looked malnourished. His muscles were wasting and his bones were visible. He suffered from untreated eczema, which had bacterial overgrowth. Two different doctors agreed that J.T. appeared very thin and small for his age--although he was then 13 years old, J.T. looked closer to 6 to 7 years old. Dr. Danielle Parrot determined that J.T. was in critical condition and sent him to the emergency room of the local hospital. There, the medical staff stabilized J.T. and then transferred him to the pediatric intensive care unit (ICU) at Doernbecher Children's Hospital.
¶ 6 At the ICU, Dr. Thomas Valvano, a pediatrician and the medical director of the Suspected Child Abuse and Neglect Program, examined J.T. and found him to be " cachectic, just very malnourished, no subcutaneous fat, very thin." 6A RP at 1125. Dr. Valvano found J.T.'s case unusual and troubling because ordinarily J.T. would be expected to remain in the same percentile range for his entire life. Yet after he moved in with the Trebilcocks, J.T.'s weight and height dropped from the 50th percentile to the 3rd percentile in comparison to other boys his age. Dr. Valvano discovered no medical reasons for J.T.'s cachectic state and believed malnourishment caused J.T.'s condition. Dr. Valvano bolstered his medical analysis with the fact that J.T. gained weight and thrived after he ate a normal diet in the hospital over a period of eight days. Based on Dr. [184 Wn.App. 625] Valvano's review of J.T.'s records, his examination of J.T., and J.T.'s progress and improvement at the hospital, Dr. Valvano opined to a reasonable medical certainty that improper exposure to cold weather caused J.T.'s hypothermic state and that not being given enough food to eat caused J.T.'s malnourishment.
¶ 7 The day after J.T.'s hospitalization, Child Protective Services (CPS) opened an investigation into the Trebilcocks. The Trebilcocks' four adopted daughters appeared frightened and very thin when CPS visited. According to Jeffrey, the girls were on a special vegan diet and were not allowed to have any sweets. Rebecca refused CPS's request to have the four adopted girls see a doctor.
¶ 8 CPS soon placed J.T. and the four girls into their custody. When CPS supervisor Stephanie Frost picked the girls up, they were very withdrawn and would not talk. Frost found this unusual based on her eight years of experience. CPS barred the Trebilcocks from visiting J.T. at the hospital.
¶ 9 J.T. began a dramatic recovery once CPS removed him from the Trebilcocks' care. In the 16 months after he moved out of the Trebilcocks' home, J.T. grew seven and a half inches and more than doubled his weight, gaining 64 pounds. Dr. Blaine Tolby opined that J.T.'s living conditions at the Trebilcocks' had caused his poor growth. Dr. Tolby testified J.T. suffered incredible harm and that he " would place the severity of this particular case, as being the worst case of chronic abuse and neglect" that he had seen in his 37 years of being a physician. 7A RP at 1463.
¶ 10 Similarly, A.T. suffered a precipitous loss of weight while in the Trebilcocks' care and began to recover once CPS removed her from the Trebilcocks' care. Before she lived with the Trebilcocks, A.T. was slightly heavier than average. Yet at the time she was removed from the Trebilcocks' care, the 12-year-old A.T. appeared thin and weighed only 51 pounds, 12 ounces and stood 51 inches tall. That put her body mass index (BMI) at 14, below the third [184 Wn.App. 626] percentile. She also " lost some relative height." 6B RP at 1370. Andrea Street, a registered dietician, testified that A.T. remained underweight
even three weeks after being removed from the Trebilcocks' care. 5 RP at 1021.
¶ 11 In less than three months of foster care, A.T. grew to 70.4 pounds and 52.25 inches, at the 10th percentile for weight and height. Dr. Kenneth Wu opined that A.T.'s low intake of food likely caused her low weight and BMI.
¶ 12 On May 24, 2011, the State charged the Trebilcocks with five counts of criminal mistreatment against their five adopted children. On June 15, Jeffrey and Rebecca waived their right to jury trials. Both signed written waivers, and the trial court conducted a colloquy with both to ensure they each understood their rights and were voluntarily waiving their right to jury trials. Jeffrey's trial attorney stated that the Trebilcocks' decision to waive a jury trial had been discussed over a period of several months. The State twice amended the information, charging the Trebilcocks on July 23 with 13 counts of domestic violence criminal mistreatment against their five adopted children with four aggravating factors.
¶ 13 After a bench trial, the trial court found Jeffrey and Rebecca guilty of criminal mistreatment in the first degree with domestic violence of J.T. (count 1) and criminal mistreatment in the third degree with domestic violence of A.T (count 3) and acquitted Jeffrey and Rebecca of the remaining counts. The court also found two aggravating factors pertaining to count 1: first, the crime involved domestic violence that was part of an ongoing pattern of psychological and physical abuse, and second, the Trebilcocks used their position of trust, confidence, or fiduciary responsibility to commit the crime. At the sentencing hearing, the trial court commented on Rebecca's testimony about her biblical convictions on diet and contrasted Rebecca's conduct with [184 Wn.App. 627] " the importance of safeguarding and protecting children in our society and keeping them from harm and offense." 11 RP at 2729-30. The court then referenced a biblical quote:
This is the phrase that some of you may be familiar with: " Which one of you, if his son asks him for bread, will he give them a stone, or if he asks a fish, will he give him serpent?" Your children asked for bread and for reasons which baffle, literally baffle the bulk of society, you gave them a stone.
11 RP at 2730.
¶ 14 The trial court sentenced Jeffrey to a standard range sentence of 60 months on count 1 and 364 days on count 3, to be served consecutively. The trial court also ordered Jeffrey to undergo treatment and evaluation for substance abuse as a condition of his misdemeanor criminal mistreatment in the third degree conviction. Based on the two aggravating factors, the trial court sentenced Rebecca to an exceptional sentence above the standard range and found that the grounds for the aggravating circumstances " taken together or considered individually, constitute sufficient cause to impose the exceptional sentence" of 96 months on count 1 and 364 days on count 3, to be served consecutively. Clerk's Papers (CP) (filed at Court of Appeals Oct. 9, 2013) at 10. Both Jeffrey and Rebecca appeal.
I. Sentence Not Based on the Trial Court's Religious Beliefs
¶ 15 Rebecca first argues the trial judge violated her Fourteenth Amendment right to due process by considering his own religious beliefs in setting the length of her sentence and thus her sentence must be vacated and her case remanded for resentencing before a different judge. This is an issue of first impression in Washington State. [184 Wn.App. 628] Because the trial judge did not inject his own personal religious beliefs into sentencing or sentence Rebecca based solely on those beliefs, we hold no constitutional violation occurred and we affirm Rebecca's sentence.
¶ 16 The sentencing process must satisfy the requirements of due process. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. ...