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Maldonado v. Maldonado

Court of Appeals of Washington, Division 1

February 13, 2017


          BECKER, J.

         Appellant petitioned the superior court for a domestic violence protection order to limit his ex-wife's contact with their three minor children for a year or more and to restrain her from harming them. The court granted protection only for the child who had a visible bruise, and only for four months. The court ruled that imposing additional restrictions would amount to a "back door modification" of the parenting plan.

         The court abused its discretion in two ways: by failing to state in writing the particular reasons why the other two children were not included in the protection order and by denying protection on the basis that relief could be obtained in another type of action. The order is reversed and remanded for reconsideration in light of this opinion.


         The marriage between appellant Jose Maldonado and respondent Noemi Lucero, formerly Noemi Maldonado, was dissolved in Snohomish County Superior Court in October 2015. At that time, their children-two daughters, ages 14 and 9, and a 6-year-old son-were living with Jose in south King County and attending school there. Noemi's residence is in Snohomish County. The couple had been separated for five years. At some point during the separation, the two daughters were assaulted by a third party; Noemi does not dispute Jose's allegation that these were sexual assaults by Noemi's then-boyfriend. Noemi's contact with the children was limited for a period of time to professionally supervised visitation. No such restriction is contained in the parenting plan entered on October 14, 2015. Under the terms of the parenting plan, the children continue to live with Jose, except for every other weekend and certain holidays and vacations with Noemi.

         On Saturday, November 21, 2015, the children were with Noemi for the weekend. On the following Monday, a school staff member reported to Child Protective Services (CPS) a disclosure made by the nine-year-old daughter, NL.

On 11/23/15 [NL] disclosed to a school staff member that on 11/21/15 she went to the store with her mom, her siblings and mom's boyfriend. She needed to go to the bathroom and asked if she could go. Mom told her to hurry, but [NL] apparently took too long. When she got back from the bathroom Mom pushed her to the ground at the store. When they got home Mom pinched her on her upper right bicep which left a bruise (2-inches, purple). Her mom also hit her with a belt multiple times on her back and her leg which left a bruise on her upper right thigh. She said that mom also hit her little brother with a belt and her big sister with a flip-flop.

         In a space provided to "describe prior abuse/neglect or historical concerns, " the staff member reported,

Mom lost custody of her children for a number of years because her former boyfriend sexually assaulted [NL]. Mom only very recently gained unsupervised visitation rights of the children. Previously a restraining order was in place and visits were supervised only.

         Police were contacted. On November 24, 2015, Jose took NL to a doctor. The doctor documented a bruise on NL's arm.

         On December 18, 2015, Jose petitioned in King County Superior Court for a domestic violence protection order protecting the children under chapter 26.50 RCW, the Domestic Violence Prevention Act. The petition listed the cause numbers of two previous protection order proceedings involving the family: a protection order in Snohomish County in 2012 and a temporary order in King County in 2013. The petition requested an order restraining Noemi from causing any physical harm to the children, from harassing or threatening them, and from contacting them except through court-ordered visitation.

         The standard petition form provides space to describe specific acts of domestic violence, with their approximate dates. Jose's petition alleged that Noemi physically assaulted the children on November 21, 2015. He attached the school district report and the doctor's note. He alleged that during her next weekend with the children, Noemi reprimanded NL and threatened her with punishment for reporting that she and her siblings had been hit.

         In the space provided for a description of past incidents involving violence, fear of injury, or threats of harm by the respondent, Jose alleged that Noemi "has repeatedly subjected my children to abuse (by her boyfriend, herself) and neglect. CPS has previously been involved and she lost custody of the children after both of my daughters were sexually assaulted by her boyfriend." He asserted that Noemi "presented an ongoing threat to the physical and emotional/psychological well-being of the children for several years, necessitating supervised visits until recently."

         The petition requested an ex parte emergency temporary order (RCW 26.50.070) pending a hearing. Jose alleged that immediate protection was necessary because the children "will be subjected to psychological and physical harm or danger of harm during home visits with their mother" and that they "are afraid of what will happen to them during these visits."

         Jose signed the petition and certified under penalty of perjury that his allegations were true and correct.

         A court commissioner issued a temporary protection order including all three children as protected parties. The court instructed Family Court Services to get a status update from CPS. The temporary order was reissued three times, twice because the court was waiting for the update and once for Jose to seek legal advice. The temporary orders required professional supervision for Noemi's visits with the children and prohibited the parties from discussing any court case or the other parent in the presence of the children.

         Noemi filed with the court two letters she had received from CPS concerning an investigation into a report received by CPS in March 2012 alleging negligent treatment by Noemi of the two daughters. The first letter was dated August 14, 2012. It stated that the resulting investigation showed the allegation to be "Founded." The second letter was dated October 11, 2012. It stated that in an administrative review requested by Noemi, the finding was changed to "Unfounded." Details of the alleged negligent treatment are not included.

         A social worker with Family Court Services filed a status update with information obtained from a CPS supervisor. According to this two-paragraph document, the most recent referral to CPS was the one received from NL's school on November 23, 2015. CPS classified the referral as "Physical Assault/or Unreasonable/immoderate corporal punishment." A CPS social worker interviewed the children. "[NL's] reports remained similar but her older sibling reported that the mother attempted to talk to [NL] when she was being disrespectful." In the screening process used by CPS, "no safety threats were identified." The CPS supervisor reported there was "a previous finding for Neglect against the mother."

         On March 4, 2016, a court commissioner held a hearing on the petition. Jose and Noemi appeared without counsel. A Spanish language interpreter was present for Jose. The transcript states that all questions and answers to and from Jose were translated by the interpreter, and all answers given were through the interpreter.

         The commissioner first ascertained that both parties had the opportunity to review the CPS status update from Family Court Services. After swearing in both parties, the commissioner asked Jose if the facts in his petition and in his declaration were true and correct. Jose testified that they were. He presented a photograph of NL's bruise taken the day after the incident at the store.

         The commissioner then said to Noemi, "So, ma'am, I need to hear from you. What happened and how did your daughter get the bruise?" Noemi testified that NL had a tantrum during a shopping trip when her request to buy toys was refused "and she started biting me, trying to kick me; so we left, and we went home.... And then I hit her on her behind with the belt. But on the bruise, I don't know how she got that." The commissioner reviewed the parenting plan and confirmed with Noemi that the children resided primarily with Jose.

         The commissioner asked Jose if there was "anything else you want me to know?" Jose testified that Noemi had not tried to exercise her right to supervised visitation under the temporary orders and had contacted the older daughter about going to California for vacation. The commissioner told him that the only matter before the court was whether Noemi had abused NL:

THE COURT: So let me ask you a question.
The only evidence that I have before me is the allegation regarding abuse of the 9-year old [NL], correct?

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