Torres was convicted of a witness tampering charge involving
his minor son. At sentencing, the trial court imposed a
five-year no-contact order between Mr. Torres and his son.
Because the no-contact order was imposed without adequate
consideration of Mr. Torres's fundamental right to parent
his son, we remand for reconsideration.
Torres is the father of M.T. (born 2003) and N.B. (born
2012). N.B. had been living with his mother, but on the
morning of December 22, 2014, he was left in Mr. Torres's
care while N.B.'s mother went shopping. M.T. was also
with Mr. Torres at the time. On December 23, N.B.'s
mother and grandmother took him to receive medical care after
he was found unresponsive. N.B. died a few days later. A
preliminary investigation of N.B.'s injuries suggested
his death was a homicide.
law enforcement's investigation into N.B.'s death
involved a forensic interview of M.T. M.T. originally told
the interviewer that N.B. was responsive while in Mr.
Torres's care and ate some "Chicken McNuggets"
during this time. Clerk's Papers (CP) at 8. But M.T.
subsequently told the interviewer this was not true. M.T.
then related that he heard a loud bang while Mr. Torres was
caring for N.B. and N.B. started loudly crying. Mr. Torres
later told M.T. he had accidentally stepped on N.B.'s leg
causing him to fall and strike the bedpost. M.T. never saw
N.B. get up again after this. M.T. told the interviewer that
both his parents approached him at his grandmother's home
earlier that day and told him to make up a story about N.B.
eating Chicken McNuggets, and not mention that N.B. had
bumped his head. Mr. Torres allegedly told M.T. to "make
up lies." Id.
police talked to Mr. Torres the day after M.T's
interview. After being advised of his
Miranda rights, Mr. Torres denied injuring
N.B. but admitted N.B. fell and struck his head on a bedpost.
Mr. Torres also admitted he did not want M.T. to talk to the
police and had a private conversation with him to outline
what M.T. would say. Mr. Torres claimed he told M.T. to tell
the truth and say Mr. Torres did not cause the injuries to
N.B. He did not offer any specific details on what M.T. was
State charged Mr. Torres with one count of witness tampering
under RCW 9A.72.120(1)(c). The case progressed toward trial
and a CrR 3.5 hearing was set for February 11, 2015. The
hearing was not held, but the parties stipulated to a
continuance on February 11 that pushed the CrR 3.5 hearing to
February 25 the trial date out to late March. Mr. Torres
ultimately entered an Alford plea on February 25.
His case then proceeded directly to sentencing.
the sentencing colloquy, counsel for the State requested a
six-month no-contact order between Mr. Torres and his son,
which would be subject to renewal. Defense counsel asked the
court not to impose a no-contact order, citing the active
role Mr. Torres played in his son's life. The court
ultimately imposed a five-year no-contact order, prohibiting
Mr. Torres from all contact with M.T. except by written mail
that first must be screened by M.T.'s mother. Mr. Torres
also received a sentence of six months and $1, 960 in legal
financial obligations (LFOs).
9.94A.505(9) authorizes a trial court to impose crime related
prohibitions as sentencing conditions. State v.
Warren, 165 Wn.2d 17, 32, 195 P.3d 940
(2008).Conditions interfering with fundamental
rights, such as the right to a parent-child relationship,
must be "sensitively imposed" so they are
"reasonably necessary to accomplish the essential needs
of the State and public order." In re Pers.
Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686
(2010) (internal quotation marks omitted) (quoting
Warren, 165 Wn.2d at 32). Although we review a trial
court's decision to impose sentencing conditions for
abuse of discretion, discretion is abused if the trial court
employs the wrong legal standard. Rainey, 168 Wn.2d
at 374-75; see also State v. Lord, 161 Wn.2d 276,
283-84, 165 P.3d 1251 (2007).
sentencing, the trial court imposed a five-year no-contact
order, prohibiting almost all contact between Mr. Torres and
his son. In so doing, the court failed to acknowledge Mr.
Torres's fundamental right to parent his child or explain
why a five-year prohibition on all personal contact was
reasonably necessary to further the State's interests.
This was error, even under the deferential abuse of
discretion standard. Rainey, 168 Wn.2d at 374-75;
State v. Howard, 182 Wn.App. 91, 100-01, 328 P.3d
969 (2014). While the trial court certainly can impose a
no-contact order to advance the State's fundamental
interests in protecting children, it must do so in a nuanced
manner that is sensitive to the changing needs and interests
of the parent and child. Rainey, 168 Wn.2d at 378.
State suggests we can infer the reasons for the court's
no-contact order from the record. We disagree. The record
before us is scant. The trial judge did not explain why he
decided to impose a no-contact order that was 10 times longer
than what was requested by the State. We are unable to
discern the court's likely reasoning from the limited
information presented. It is the trial court's duty to
balance the competing interests impacted by a no-contact
order. This is a fact intensive exercise that must, at first
instance, be done in the trial court, not the appellate
the trial court's decision to impose a no-contact order
was not guided by the analysis required by our case law, we
remand for reconsideration of the no-contact order. On
remand, the trial court shall first address whether a
no-contact order remains reasonably necessary in light of the
State's interests in protecting M.T. from harm. If it is,
then the court shall endeavor to narrowly tailor the order,
both in terms of scope and duration. When it comes to the
order's scope, the court shall consider less restrictive
alternatives, such as supervised visitation, prior to
restricting all personal contact between Mr. Torres and his
child. See, e.g., State v. Ancira, 107 Wn.App. 650,
654-55, 27 P.3d 1246 (2001). In addition, the court's
order should recognize that "what is reasonably
necessary to protect the State's interests may change
over time." Rainey, 168 Wn.2d at 381.
Accordingly, the court shall consider whether the scope of
the no-contact order should change over time. The court shall
also reconsider whether the ultimate length of the no-contact
order remains appropriate.
remand, the trial court should keep in mind that a sentencing
proceeding is not the ideal forum for addressing parenting
issues. Ancira, 107 Wn.App. at 655. Our juvenile and
family courts are better equipped to resolve custody
questions, including whether restrictions should be placed on
parent-child contact. See chs. 13.34, 26.09, 26.10,
26.26 RCW. Outside the context of the procedural protections
provided in dependency and child custody cases, our
legislature has directed that a parent-child no-contact order
should not last longer than one year, unless ...