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
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.
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.
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.
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.
were contacted. On November 24, 2015, Jose took NL to a
doctor. The doctor documented a bruise on NL's arm.
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.
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.
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
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
signed the petition and certified under penalty of perjury
that his allegations were true and correct.
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.
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.
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
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.
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.
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.
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?
MR. MALDONADO: ...