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State v. Doepker

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1038 (Wash. Ct. App. 2007)

Opinion

Nos. 58167-8-I; 58168-6-I.

October 1, 2007.

Appeals from a judgment of the Superior Court for King County, No. 05-1-12330-0, Sharon S. Armstrong, J., entered April 12, 2006.


Reversed and remanded by unpublished opinion per Appelwick, C.J., concurred in by Grosse and Baker, JJ.


Derry Dee Doepker pled guilty to one count of fourth degree assault of his wife, a misdemeanor, and two counts of felony violation of a no-contact order. As a sentencing condition for each count, the court imposed a no-contact order between Doepker and his three children. Doepker appeals this condition of his sentence, claiming violation of his constitutional right to parent. We agree. Doepker must be resentenced without the prohibition pertaining to his children. We reverse and remand for resentencing without the no-contact orders for the children.

FACTS

Derry Dee and Paula Doepker were legally separated but living together with their three children. At around 1 am on November 11, 2005, Mrs. Doepker called 911 and reported that her husband had put his hands around her throat. When officers arrived at the home, Mrs. Doepker told them that when she accidentally woke Doepker, who had been sleeping on the couch, he became enraged. He followed her to their bedroom where he grasped her neck with both hands and held her down on the bed. Their two daughters, ages 13 and 11, heard the disturbance and pulled their father off of their mother. When the police interviewed the two girls they were both visibly upset and crying. Dopeker was arrested for assault-domestic violence.

After this incident, a no-contact order was issued to prohibit Doepker from having any contact with his wife. In January 2006, a police detective reviewed the November/December cell phone records for both Derry and Paula. The records showed that Doepker had placed phone calls to his wife at 1:21 p.m. on December 14, 2005 and 11:54 a.m. on December 16, 2005. Upon investigation, the detective learned from Mrs. Doepker that her husband had called her almost every day — often five or six times a day. She also told the detective that all the phone calls occurred when her children were in school and she would have been the only one to answer her cell phone. As a result of these phone calls, Doepker was charged with two felony violations of a no-contact order.

In January 2006, Doepker pled guilty to fourth degree assault — domestic violence. In March 2006, he pled guilty to the felony violations of the no-contact order. The court conducted a single hearing to sentence Doepker on all counts. In addition to jail time, the State recommended no-contact with Mrs. Doepker as a component of the sentencing. At sentencing, the trial court expressed concern about the Doepker children as victims of the situation. The court was apprehensive about relinquishing the issue of contact between Doepker and his children to dependency court. "[W]hat happens, as we all know, is dependencies get dismissed." The court's fears were confirmed when the victim advocate informed the court that the representative from Family Preservation Services was no longer working with the family. As a result of this concern, the trial court included a no-contact order for the children as a sentencing condition. Both the misdemeanor and felony orders prohibited Doepker from contact with his children "other than as ordered by this court after a recommendation from either dependency or family law court."

DISCUSSION

Doepker argues that the sentencing prohibition on contact with his children violates his constitutional right to parent. We review crime-related prohibitions for abuse of discretion. State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d 1365 (1993).

"Abuse of discretion occurs when the decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons." State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001). Criminal sentencing can impose limitations on fundamental rights when reasonably necessary to accomplish the essential needs of the State. State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000). See also, State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998). This includes restrictions on the right to parent if the condition is reasonably necessary to prevent harm to the children. Ancira, 107 Wn. App. at 654; Letourneau, 100 Wn. App. at 439.

In Ancira, the defendant took and held one of his children for several days, refusing to return the child until his wife agreed to talk with him. Ancira, 107 Wn. App. at 652. He was charged with felony violation of the domestic violence no-contact order protecting his wife. Id. The trial court imposed the prohibition on contact with the children because they were present when Ancira violated the no-contact order protecting his wife and they witnessed the violence between their parents. Id. at 653. However, this court determined that while limitations on contact with the children might have been appropriate, the complete prohibition was "extreme and unreasonable given the fundamental rights involved." Id. at 655. The evidence did not show that the no-contact order was reasonably necessary to protect the children from the harm of witnessing domestic violence. Id. at 654-55. Consequently, this court concluded that a five-year prohibition of contact with the defendant's children "violated Ancira's fundamental right to parent because it was not reasonably necessary to meet the State's legitimate objectives." Id. at 652.

In addition, this court expressed concerns about the use of sentencing conditions to address the safety and interests of the children. "Generally . . . the criminal sentencing court is not the proper forum to address these legitimate concerns other than on a transitory basis." Ancira, 107 Wn. App. at 655. Decisions concerning the parent/child relationship are best left to the family law and dependency courts because they have specific procedures in place to determine the best interests of the children and tailor orders to address these interests. Id. See also, Letourneau, 100 Wn. App. at 443. The family and dependency courts also have statutory procedures to safeguard a parent's procedural due process rights. Ancira, 107 Wn. App. 655-56.

The trial court attempted to refer the issue of Doepker's contact with his children to the appropriate forum by subjecting the no-contact order to reevaluation "after a recommendation from family law or dependency court." The State contends that this provision narrowly tailors the impact on Doepker's parental rights, by allowing for contact after family or dependency court proceedings. However, this still deprives Doepker of his right to parent without the procedural safeguards of dissolution or dependency. Ancira, 107 Wn. App. 656. This fundamental right can only be restricted by a condition of a criminal sentence if it is reasonably necessary to prevent harm to the children. Id. at 654.

In this case, the evidence shows only that the children assisted their mother by pulling their father off of her, not that the children were physically harmed. The girls were involved in the misdemeanor assault but they were not victims. Doepker's violence was not directed at them. Their role was not sufficient to establish physical harm to them that would allow a criminal sentencing court to abridge Doepker's parental rights. While the girls were obviously upset when the police arrived, this court has previously found that broad assertions about the harm to the children from witnessing domestic violence is not a sufficient basis for extreme interference with fundamental parental rights. Ancira, 107 Wn. App. at 654. Under the facts in the record, the trial court did not have sufficient evidence of the threat of harm to the girls to include the no-contact order on the misdemeanor. Since the record does not show that Doepker's son was even present during the assault, the trial court also abused its discretion by applying the no-contact order to him. The State has not shown the harm necessary to justify abridging Doepker's constitutional right to parent.

We also note that under RCW 9.95.210, the no-contact order was improperly included in the sentence for the misdemeanor offense. "In granting probation, the superior court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer." RCW 9.95.210(1). Conditions, like a no-contact order, can only be imposed with probation or a suspended sentence. In this case, the trial court sentenced Doepker to 12 months in jail without suspending the sentence or requiring probation, and therefore it had no authority to assign conditions.

For felony convictions, the court can impose prohibitions against "conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.505(8); RCW 9.94A.030(13). "No causal link need be established between the condition imposed and the crime committed, so long as the condition relates to the circumstances of the crime." State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992). Doepker contends that since his children were not involved in or present during the felony incidents, the Sentencing Reform Act does not provide grounds for the no-contact order. The State attempts to link the felonies and the assault because "[t]he no-contact order violated was entered by the court as a result of a domestic violence assault that the minor children were involved in." A restraining order may be ordered as a condition of a felony sentence in order to prevent contact with a witness who was not a victim. A witness is directly connected to the circumstances of a crime. State v. Warren, 134 Wn. App. 44, 70, 138 P.3d 1081 (2006) (citing Ancira, 107 Wn. App. at 656). As witnesses, the children were directly related to the assault. However, they were not directly related to the felonies. The children were in school during the commission of the violations of the no-contact order, and were not victims or witnesses to the felonies. As a result, the trial court did not have authority to impose the prohibition on contact with the children. This was an abuse of discretion.

The no-contact provision was the sentencing court's attempt to refer the case to dependency court to the children from witnessing domestic violence and eliminate any way for Doepker to contact his wife. These concerns are understandable and the restrictions were tailored to address them. The State argues that the court's order is permissible as a temporary restriction rather than a final order, since the restriction was made pending the exercise of jurisdiction by the family court or dependency court consistent with due process. However, the order is neither self-executing nor limited in duration. The sentencing court had no statutory authority to make such a provision for the children in this criminal proceeding. Ancira also precludes this option. Without a showing of harm to the children the court cannot block contact. The sentencing court may neither write a parenting plan to ensure the integrity of the no-contact order, nor impose a no-contact order pending further order or recommendation from family court or dependency court. The sentencing court may merely advise the defendant that the no-contact order for his wife may have implications on his ability to see his children and that he should not contact his wife for any reason, including those pertaining to the children. The court may refer the victim to family or dependency court where the victim can file an action for a parenting plan under RCW 26.09.010(3).

Without evidence of specific harm to the children, the sentencing court has limited authority to interfere in family dynamics. This is the province of family and dependency court. "It is the business of the family and juvenile courts to address the best interests of minor children with respect to most other kinds of harm that could arise during visitation with a parent who has been convicted of a crime." Letourneau, 100 Wn. App. at 443. This is the forum provided by the legislature for addressing the interests of children and families. Id. While we understand the trial court's desire to address the problematic family dynamics, the criminal sentencing was not the proper setting and resulted in a violation of Doepker's constitutional right to parent.

We reverse and remand for resentencing without the no-contact orders for the children.


Summaries of

State v. Doepker

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1038 (Wash. Ct. App. 2007)
Case details for

State v. Doepker

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. DERRY DEE DOEPKER, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Oct 1, 2007

Citations

140 Wn. App. 1038 (Wash. Ct. App. 2007)
140 Wash. App. 1038