Ramirez v. Salvattera ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-FM-490
ISELA RAMIREZ, APPELLANT,
v.
ALFREDO SALVATERRA, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CPO-1015-14)
(Hon. Maribeth Raffinan, Trial Judge)
(Argued January 31, 2019 Decided July 23, 2020)
Robert Ziff, with whom Warren T. Allen II, Nicole Grimm, Elizabeth
Malone, and Donald P. Salzman were on the brief, for appellant.
Jennifer Williams, Public Defender Service, with whom Samia Fam, Public
Defender Service, was on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and FISHER,
Associate Judges.
Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.
Opinion by Associate Judge GLICKMAN, dissenting in part and concurring in
the judgment, at page 48.
BLACKBURNE-RIGSBY, Chief Judge: Appellant Isela Ramirez appeals the
2
trial court’s partial denial of her motion for a one-year extension of her Civil
Protection Order (“CPO”). The trial court issued the original CPO in 2014 based
upon its finding that there was good cause to believe that appellee Alfredo
Salvattera committed a criminal offense – misdemeanor sexual abuse or sexual
contact – against Ms. Ramirez, and it extended the CPO in two one-year
increments, once in 2015 and again in 2016. In 2017, Ms. Ramirez moved for a
third extension. The trial court granted a temporary extension for the duration of
proceedings and, in 2018, denied Ms. Ramirez’s motion for another one-year
extension, instead granting an extension for only three months. On appeal, Ms.
Ramirez contends that, in so doing, the trial court abused its discretion.
Today we clarify and elaborate upon the legal test, as articulated in our
precedents, for extending a CPO. Specifically, we hold that the trial court must
conduct a two-part inquiry as follows. First, the trial court must determine whether
there is “good cause” to extend the CPO. D.C. Code § 16-1005(d) (2012 Repl. &
2020 Supp.). “Good cause” is defined as a cognizable danger that the respondent
will commit or threaten to commit a criminal offense against the petitioner in the
coming year if the CPO is not extended. See D.C. Code § 16-1005(c), (d); Cruz-
Foster v. Foster, 597 A.2d 927, 929-30 (D.C. 1991). In making this determination,
the court must evaluate the entire mosaic of the case, including the parties’
3
relationship and interactions both before and after the issuance of the CPO and any
prior extension of the CPO, as well as the parties’ current circumstances. If the
trial court finds such good cause, it may extend the CPO; if it does not find such
good cause, it may not extend the CPO. Second, if the trial court has found good
cause, it must balance the harms to each party that may result from the extension or
the lack thereof to determine whether to, in fact, extend the CPO. This balancing
will also inform the scope and parameters of the extension, including the duration
and conditions of the extended CPO. We review the trial court’s decision for
abuse of discretion.
Having clarified this standard, and, cognizant of the fact that more than two
years have elapsed since Ms. Ramirez last moved to extend the CPO, we vacate the
trial court’s order and remand for further proceedings so that the trial court may
consider the current circumstances of the case with the benefit of this opinion.
I. Factual and Procedural Background
This case has a long and complex history, which is summarized below for
clarity.
4
A. The 2014 CPO
On March 28, 2014, Ms. Ramirez filed a petition for a CPO, alleging that
Mr. Salvattera sexually assaulted her in October 2013. At a nine-day hearing held
before Judge Fern Flanagan Saddler from May to July 2014, the trial court heard
testimony from Ms. Ramirez, as well as from a Sexual Assault Nurse Examiner
(“SANE nurse”) who testified generally about sexual assault; a SANE nurse who
examined Ms. Ramirez in October 2013; an employee at a nutrition center that Ms.
Ramirez frequented; Ms. Ramirez’s sister; and an investigator for the Public
Defender Service (“PDS”) (which represented Mr. Salvattera). The court found
the following facts.
Since September 2001, Ms. Ramirez had lived in a third-floor unit of an
apartment building in Northwest Washington, D.C. with her children, and, for a
time, her father. At the time of the 2014 hearing, Ms. Ramirez was thirty-one
years old and worked at an herbal medicine store. During the period relevant to
the CPO petition, Mr. Salvattera lived in a first-floor unit of the same building,
where he acted as a building manager. Before the events that gave rise to the
petition, Ms. Ramirez had visited Mr. Salvattera’s apartment several times to
discuss rent. During one visit by Mr. Salvattera to Ms. Ramirez’s apartment in
5
order to do some work, he told her that he wanted to hug her and that he had
dreamed about her wearing a red dress.
On October 26, 2013, Mr. Salvattera sent Ms. Ramirez a text message
stating that he wanted to discuss the rent with her father. On October 28, Ms.
Ramirez went to Mr. Salvattera’s apartment around 10:00 p.m. to discuss rent with
him, first knocking on his door and then on his window to be let in. She stayed at
Mr. Salvattera’s apartment for about an hour discussing rent. During this time, he
showed her a picture that he had taken of her by the trash can outside the apartment
building. Ms. Ramirez had been concerned about eviction, and, when they
discussed it, Mr. Salvattera said that she could be out on the street at any time. Ms.
Ramirez had had two beers with dinner earlier in the evening; while she was at Mr.
Salvattera’s apartment, he offered her sangria and she drank three glasses. She did
not see him pour the third glass. Five minutes after she took a sip of it, she had a
stomachache and vomited blood. She remembered nothing until she woke up in
Mr. Salvattera’s bed, naked from the waist down. When she asked Mr. Salvattera
what happened, he said that they took their clothes off and “what had to happen
happened.” Ms. Ramirez began to yell and cry, and she said that she would call
the police. Mr. Salvattera denied doing anything and told her to get out. Ms.
Ramirez left the apartment. On October 29, she went to a clinic and then a
6
hospital. At the hospital, she was examined by a SANE nurse and spoke to a
detective; Ms. Ramirez reported no pain or injury to the SANE nurse, other than
pain in her chest, and the SANE nurse found no forensic evidence of sexual
assault.
Prior to the October 2013 incident, Ms. Ramirez had experienced anxiety
and panic attacks, had taken medication for anxiety, and had a history of vomiting
and bleeding. After the incident, she began to experience anxiety, panic, and fear,
particularly when she passed Mr. Salvattera’s apartment on her way in and out of
the building. She frequently saw Mr. Salvattera in and around the building after
the October 2013 incident, but no additional incidents occurred.
On August 26, 2014, at the conclusion of the hearing, Judge Saddler found
good cause to believe that Mr. Salvattera committed a criminal offense, finding by
a preponderance of the evidence that he committed misdemeanor sexual abuse or
sexual contact against Ms. Ramirez. 1 The judge issued a CPO for one year, which
1
See D.C. Code § 22-3006 (“Misdemeanor sexual abuse”) (2012 Repl. &
2020 Supp.); see also D.C. Code § 22-3001(9) (2012 Repl.) (“Definitions”
(defining “sexual contact”)).
The trial judge stated that Mr. Salvattera committed an “intrafamily
offense.” Under D.C. Code § 16-1001(6)-(9) (2012 Repl.), a criminal offense only
(…continued)
7
ordered Mr. Salvattera to refrain from assaulting, threatening, or harassing Ms.
Ramirez; to stay 100 feet away from Ms. Ramirez, and to vacate the apartment
building by September 12, 2014.
B. The 2014-2015 Appeal
Mr. Salvattera appealed and filed an emergency motion for a stay pending
appeal of the provision of the CPO requiring him to vacate the apartment building,
arguing that the trial court lacked the authority to order him to do so, given that he
lived in a separate unit and did not share a residence with Ms. Ramirez. This court
granted an administrative stay of the vacate provision from the date the CPO was
entered; the court then held oral argument on the emergency motion, and, on
December 15, 2014, granted a stay of the vacate provision pending appeal (leaving
the remainder of the CPO in place). Salvattera v. Ramirez, 105 A.3d 1003, 1009
(D.C. 2014) (“Salvattera I”). On March 26, 2015, this court decided the appeal,
(…continued)
qualifies as an intrafamily offense if it was committed against a person to whom
the offender is or was related through blood; adoption; legal custody; marriage;
divorce; domestic partnership; sharing a residence; a romantic, dating, or sexual
relationship; or with whom the respondent has a child in common. Because Ms.
Ramirez and Mr. Salvattera were not related in any of these ways, the offense was
not an intrafamily offense. However, sexual abuse is a predicate offense under the
IntraFamily Offenses Act pursuant to § 16-1001(12). See infra note 8.
8
rejecting Mr. Salvattera’s challenge, lifting the stay, and affirming the entirety of
the CPO. Salvattera v. Ramirez, 111 A.3d 1032, 1034-38 (D.C. 2015) (“Salvattera
II”). 2 On remand, the trial court ordered Mr. Salvattera to vacate the apartment
building by June 9, 2015.
C. The 2015 CPO Extension
In August 2015, Ms. Ramirez moved to extend the CPO. Judge Marisa J.
Demeo presided over a three-day evidentiary hearing, during which she heard
testimony from Ms. Ramirez, Mr. Salvattera, and a PDS investigator. She found
that there were two incidents in which Ms. Ramirez and Mr. Salvattera had
encountered each other since the CPO had been issued – both of which occurred
before the vacate provision of the CPO was enforced. On May 19, 2015, Ms.
Ramirez was waiting at a bus stop in her neighborhood when Mr. Salvattera drove
by in his car; he saw her and promptly drove away. Then, on June 1, 2015, Mr.
Salvattera was carrying a board up the stairs of the apartment building, saw Ms.
Ramirez, and laughed at her in a “mocking” way, which made her feel “scared and
2
This court also rejected Mr. Salvattera’s challenge to the sufficiency of the
evidence and his contention that the trial court improperly balanced the harms to
the parties. Salvattera II, 111 A.3d at 1037-38.
9
horrified.” The judge did not find these incidents to rise to the level of CPO
violations or to merit findings of contempt.
Judge Demeo also considered the “entire mosaic” of the parties’ relationship
and history, including what occurred prior to the October 29, 2013 incident. She
found that Mr. Salvattera had lived in the building since 2010, and that Ms.
Ramirez had visited his unit several times, including to sell him products, and to
borrow money. Ms. Ramirez had also taken two female friends on two different
occasions to Mr. Salvattera’s apartment to ask for work and money for them; Ms.
Ramirez felt that Mr. Salvattera was inappropriately romantic with both of them.
In addition, Ms. Ramirez had been to Mr. Salvattera’s apartment for social visits,
including talking with him about marital issues with her husband, bringing her kids
over for pizza, and coming over wearing a wig, at which point Mr. Salvattera asked
to take a picture of her and she agreed. The judge found that there was an “uneven
power dynamic” between the parties because Mr. Salvattera was a building
manager and handyman, spoke both Spanish and English, and helped tenants with
translations and applications for public benefits, whereas Ms. Ramirez did not
speak English, was not educated, was not then working, lived in the worst unit in
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the building, and had landlord/tenant issues with building owner. 3
The trial court also examined the current status of the parties. It found that
Ms. Ramirez had had panic attacks and trouble sleeping prior to the October 2013
incident, and she continued to have these issues after that incident, including panic
attacks when she would see Mr. Salvattera. The court found that Ms. Ramirez
feared seeing Mr. Salvattera in the building, and that, when she would see him, she
would “remember everything that happened to [her]” during the October 2013
incident. The court further found that Ms. Ramirez no longer felt safe since her
father moved out of her apartment in 2014. She left her apartment and stayed in
shelters and with friends for about a year (from March 2014 to April 2015), and
only moved back after the vacate provision of the CPO took effect. With respect
to Mr. Salvattera, the court found that, prior to the October 2013 incident, he lived
rent-free due to his role as a building manager, handyman, and liaison between the
tenants and the landlord, but that he had become homeless, jobless, and
experienced economic hardship since vacating his apartment pursuant to the CPO
(for instance, he had only $9 at the time of the hearing).
3
Judge Demeo did not address Judge Saddler’s previous finding that Ms.
Ramirez had worked at an herbal medicine store.
11
Based on these findings, the court concluded that, even though there had
been no violations of the CPO provisions, there was a cognizable danger of a
recurrent violation based on the October 2013 criminal offense, the laughing
incident, and the fact that, without the vacate provision of the CPO in place, the
parties would routinely encounter each other in the apartment building. The court
then balanced the potential harms to the parties, concluding that – even though Mr.
Salvattera was not a person of considerable means and even though the CPO had
caused (and would continue to cause) significant harm to Mr. Salvattera’s living
situation and financial stability – the harm to Ms. Ramirez from not extending the
CPO would be greater because she was in a more disadvantaged position than him,
had children, and would have to leave her apartment if he were permitted to return
to the building. Thus, on October 22, 2015, the trial court concluded that good
cause existed to extend the CPO and issued a one-year extension.
D. The 2016 CPO Extension
In October 2016, Ms. Ramirez moved for a second one-year extension of the
CPO. The parties again appeared before Judge Saddler, who conducted a one-day
evidentiary hearing, involving testimony from Ms. Ramirez and Mr. Salvattera,
and concluded that there was good cause to extend the CPO. The trial court
12
considered the “entire mosaic” of the case, but did not address the danger of a
recurrent violation, noting only that there was one instance in the preceding year
when Mr. Salvattera saw Ms. Ramirez in the neighborhood, but he was in his car
and drove away when he saw her. The court appeared to base its decision largely
on its balancing of the harms. It found that Ms. Ramirez still felt “fear and horror”
toward Mr. Salvattera and would not have “peace of mind,” as she would “relive
what happened” every time she saw him – something that would occur if Mr.
Salvattera moved back into the building, despite his commitment to avoid Ms.
Ramirez as much as possible. It also found that Mr. Salvattera had lived several
places since vacating the apartment building and was then staying in an apartment
half a mile away, was doing odd jobs to make money, and had been recently
diagnosed with diabetes. It then concluded that Ms. Ramirez had “met her burden
of proof” and granted the one-year extension of the CPO, effective December 5,
2016.4
E. The 2018 CPO Extension
4
Mr. Salvattera appealed the December 5, 2016 order extending the CPO
for one year, but then voluntarily dismissed the appeal as moot when the trial court
issued the March 20, 2018 order that is the subject of this appeal, discussed below.
13
Finally, on December 1, 2017, Ms. Ramirez filed a third motion to extend
the CPO for one year. Judge Maribeth Raffinan temporarily extended the CPO
pending further proceedings, held a two-day evidentiary hearing in February 2018,
at which both parties testified, and issued a written order on March 20, 2018.
In her written order, Judge Raffinan reviewed the entire history of the case,
including the original CPO and subsequent extensions. She then made several
factual findings regarding what had occurred since December 5, 2016, when the
CPO was last extended. Specifically, the trial court found that, although Mr.
Salvattera had not contacted Ms. Ramirez in any way, the parties had encountered
each other twice in the neighborhood. On December 5, 2017, Ms. Ramirez saw
Mr. Salvattera standing across the street from a bus stop and talking to someone.
Ms. Ramirez hid behind a taxi, called 911, and began taking pictures of him; when
Mr. Salvattera realized someone across the street was photographing him, he
assumed it was her, got in his car, and drove away immediately. On February 13,
2018, Mr. Salvattera was with a friend at a McDonald’s restaurant, saw Ms.
Ramirez there, and left immediately. On both occasions, Ms. Ramirez felt
“scared”; during the bus stop incident, she also felt “panicky” and “began to relive
everything that had happened to her.” Judge Raffinan concluded that the evidence
showed that Mr. Salvattera did not violate the CPO or otherwise harass Ms.
14
Ramirez because his immediate response to each encounter was to leave as soon as
possible. 5
The trial court also made factual findings regarding the parties’ changed
circumstances since the last CPO extension. While there was no material change
to Ms. Ramirez’s circumstances, Mr. Salvattera was then living in a room in
someone else’s home in exchange for a friend staying in Mr. Salvattera’s former
unit in the apartment building, as the vacate provision of the CPO was still in
effect. In his new location, Mr. Salvattera had access to a bedroom and bathroom,
but not to the common areas of the home, including the kitchen. Mr. Salvattera’s
health had worsened due to his diabetes, as his vision had become impaired and he
could no longer stand for more than four or five hours, both of which made it
difficult to perform his work as a handyman – and his lack of access to a kitchen
5
The trial court noted that the CPO “does not prohibit [Mr. Salvattera] from
engaging in everyday activities within his neighborhood, so long as he does not
violate the specific provisions of the CPO,” and further observed: “While [Mr.
Salvattera] admitted that he had seen [Ms. Ramirez] at this McDonald’s previously
. . . [Mr. Salvattera] must stay 100 feet away from the [Ms. Ramirez’s] person –
not every location where [Mr. Salvattera] has seen [Ms. Ramirez] before.” The
court further noted that, on September 18, 2017, Ms. Ramirez saw Mr. Salvattera’s
car parked on the street and took pictures of it, but he was not there. Additionally,
Ms. Ramirez presented photos showing that Mr. Salvattera still receives mail at the
apartment building, but the trial court credited his testimony that, although he did
not live in the building anymore, he still received mail there and his friend who
lived in the building brought him his mail.
15
made proper nutrition difficult.
The court noted explicitly that it was considering the “entire mosaic” of the
parties’ relationship and the history of the case, examining in detail the factual
findings from the prior proceedings and the current proceedings. It also reviewed
this court’s case law on CPO extensions, concluding that it must consider both
whether there is a cognizable danger of future abuse and the potential harms to the
parties in determining whether there is good cause to extend a CPO. It then
applied the law to the facts to determine whether to extend the CPO again.
First, the court found that there was no cognizable danger of a recurrent
violation because (1) the parties had no history of violence or harassment before
the October 2013 incident; (2) the October 2013 incident occurred four and half
years prior; (3) no incidents occurred between October 2013 and March 2014,
while the parties were living in the same building; (4) the June 2015 laughing
incident occurred almost three years prior to the current proceedings; (5) Mr.
Ramirez had not targeted or harassed Ms. Ramirez in any way since June 2015;
and (6) Mr. Ramirez had not called, texted, or otherwise contacted Ms. Ramirez.
Although the trial court credited Ms. Ramirez’s testimony that she was “terrified”
of Mr. Salvattera, it stated that “this does not provide evidence that [Mr.
16
Salvattera] has committed or is likely to commit additional abuse against her; it
only indicates that [Ms. Ramirez] continues to be affected by past abuse.”
The court then balanced the harms to the parties. It recognized the harm to
Ms. Ramirez that would result if the CPO were not extended, given her fear of Mr.
Salvattera and her reliving of what happened to her when she sees him. On this
point, it stated that our precedents have noted the importance of the petitioner’s
“peace of mind,” and that “Ms. Ramirez’s mental health and well-being is a serious
concern, worthy of careful consideration.” However, the trial court also
recognized the harm to Mr. Salvattera if the CPO were extended for another year,
given that he had been out of his home for almost three years and unable to work
steadily during that time (because he could no longer work as a property manager
at the apartment building), instead working odd jobs to make money. The court
further found that a “power imbalance” no longer existed, as Mr. Salvattera’s
economic situation had worsened, he had developed significant health problems,
and he would have nothing to do with managing Ms. Ramirez’s unit even if he
were to return to the apartment building – meaning “the parties [were] on much
more equal footing.” It therefore found that the harm to Mr. Salvattera that would
result from extending the CPO outweighed the harm to Ms. Ramirez that would
result from not extending the CPO.
17
Based on its conclusion that there was no danger of a recurrent violation or
abuse and that the balance of the harms favored Mr. Salvattera, the court found that
there was no good cause to extend the CPO for one year. However, recognizing
that immediate termination of the CPO provisions might cause Ms. Ramirez
distress and that she may need time to determine whether to move out of the
apartment building, the court concluded that there was good cause to grant a
“brief” three-month extension of the CPO. It therefore extended the CPO for only
three months.
Ms. Ramirez timely appealed. The trial court denied her motion for a partial
stay pending appeal. However, this court entered an administrative stay pending
appeal, then vacated the administrative stay and granted Ms. Ramirez’s motion for
a stay of the expiration provisions of the March 20, 2018 CPO, ordering that the
CPO shall remain in effect pending further order of this court.
II. Legal Standard
Over the years, this court has issued three decisions interpreting the legal
standard applicable to extending a CPO for “good cause” under D.C. Code § 16-
18
1005(d). As demonstrated by the record and the briefing in this case, confusion
persists regarding the principles articulated in those cases, and, as a result,
regarding the contours, content, and application of that standard. 6 We therefore
take this opportunity to examine the relevant statutory language and case law, and,
based on these authorities, to clarify the applicable legal standard in this case and
for future cases.
A. The Intrafamily Offenses Act
The Intrafamily Offenses Act (“the Act”), D.C. Code §§ 16-1001–1006, was
passed by Congress in 1970 in order to create a civil mechanism for addressing
violence within families – an “imaginative and progressive” system that was
designed to promote “prevention and treatment” over punishment. United States v.
Harrison, 461 F.2d 1209, 1210-11 & n.2 (D.C. Cir 1972) (citations omitted). In
giving the courts of the District of Columbia “a wider range of dispositional
powers than criminal courts,” including the power to issue CPOs that enjoin future
actions and provide for counseling and mental health treatment, id., the Act was
6
This confusion is also apparent in the dissent’s assertion, however well-
meaning, that our cases allow for a nebulous inquiry in which the injunctive nature
of a CPO is irrelevant and no legal framework is necessary. Post 69-72.
19
designed both to “protect victims of family abuse from acts and threats of
violence,” Cruz-Foster, 597 A.2d at 929, and to “effect rehabilitation rather than
retribution” or “punish[ment]” of civil offenders. Harrison, 461 F.2d at 1210-11.
The Act should therefore be liberally construed in furtherance of its remedial
purposes. Id. at 1210; Cruz-Foster, 597 A.2d at 929. 7
The Act seeks to prevent and remediate particular criminal offenses:
intrafamily, interpersonal, and intimate partner violence, as well as stalking, sexual
assault, and sexual abuse. D.C. Code §§ 16-1001(6)-(9), (12), 16-1005(c). 8 To
7
In focusing only on the remedial purpose of protecting and rehabilitating
petitioners, while ignoring or minimizing the other stated remedial purpose of
rehabilitating (rather than punishing) respondents, the dissent – not this opinion –
“read[s] into the Act limitations or restrictions which [the Act] does not contain.”
See post at 53-62, 71.
8
As originally passed, D.C. Code § 16-1001 defined an “intrafamily
offense” as a criminal offense committed between family members or those who
share(d) a mutual residence. District of Columbia Court Reform and Criminal
Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473, 546-47 (1970). In 1994,
the Council of the District of Columbia (“Council”) broadened the definition of
“intrafamily offense” to also include criminal offenses committed between those
who have or had a romantic relationship. Domestic Violence in Romantic
Relationships Act of 1994, D.C. Law 10-237, § 2, 42 D.C. Reg. 36-37 (Dec. 27,
1994).
In 2009, the Council again amended the Act, making extensive revisions to
several sections. These changes included redefining “intrafamily offense” in § 16-
1001 to mean “interpersonal, intimate partner, or intrafamily violence,” and adding
definitions of each of these terms (“interpersonal violence,” “intimate partner
(…continued)
20
this end, it provides that a trial court “may issue” a CPO that is effective for “up to
one year,” if it “finds that there is good cause to believe the respondent committed
or threatened to commit a criminal offense against the petitioner.” § 16-1005(c),
(d). The CPO may include a range of remedial provisions, including protective
and rehabilitative measures, both mandatory and prohibitory, applicable to the
petitioner and the respondent, as appropriate. § 16-1005(c)(1)-(12). Consistent
with the standards generally applicable to civil cases, a finding of good cause to
issue a CPO must be supported by a preponderance of the evidence, and it is the
(…continued)
violence,” and “intrafamily violence”) to § 16-1001; adding “petitioner” and
“respondent” to the definitions included in § 16-1001; defining a petitioner as any
person who alleges that he or she was the victim of “interpersonal, intimate
partner, or intrafamily violence, stalking, sexual assault, or sexual abuse”; and
modifying the language of § 16-1005(c) to allow a trial court to issue a CPO upon
a finding of good cause that a respondent has committed or threatened to commit
“a criminal offense” against a “petitioner.” Intrafamily Offenses Act of 2008, D.C.
Law 17-368, § 3, 56 D.C. Reg. 1338-45 (Jan. 22, 2009). These revisions stemmed
from the Council’s recognition that the need for a CPO may “result[] from a
relationship that is not, strictly speaking, intrafamily,” such as a dating
relationship. Council, Comm. on Public Safety & the Judiciary, “Report on Bill
17-55, the ‘IntraFamily Offenses Act of 2008,’” at 2-3 (Nov. 25, 2008); see also
Richardson v. Easterling, 878 A.2d 1212, 1217 n.6 (D.C. 2005) (noting that the
legislative history of the Act indicates that the proponents recognized that domestic
violence may include physical, sexual, or emotional violence, such as stalking).
Thus, under the Act as it now reads, a petitioner may obtain a CPO if a
respondent has committed or threatened to commit a criminal offense against him
or her – specifically interpersonal, intimate partner, or intrafamily violence,
stalking, sexual assault, or sexual abuse. D.C. Code §§ 16-1001(12), -1003(a), 16-
1005(c) (2012 Repl.) (2020 Supp.).
21
petitioner’s burden to put forth this evidence. See Salvattera II, 111 A.3d at 1037
(citing J.O. v. O.E., 100 A.3d 478, 481 (D.C. 2014)); Cruz-Foster, 597 A.2d at
930-31. The issuance of a CPO is within the broad discretion of the trial court, and
this court will reverse the trial court’s decision only where the trial court has
abused its discretion. Maldonado v. Maldonado, 631 A.2d 40, 42 (D.C. 1993); see
also Robinson v. Robinson, 886 A.2d 78, 86-87 (D.C. 2005); Cruz-Foster, 597
A.2d at 931-32.
The Act also provides that, upon motion of any party, the trial court
“may . . . extend, rescind, or modify the [CPO] for good cause shown.” D.C. Code
§ 16-1005(d). 9 We have held that the same procedural features apply to extensions
of CPOs that apply to the initial issuance of CPOs – meaning that the petitioner
bears the burden of proof, the trial court must make a finding of good cause based
on a preponderance of the evidence, and this court reviews the grant or denial of a
CPO extension for abuse of discretion. Robinson, 886 A.2d at 87; Maldonado, 631
A.2d at 42; Cruz-Foster, 597 A.2d at 930 & n.3; cf. Salvattera II, 111 A.3d at
1037; see also J.O., 100 A.3d at 481. The legal standard applicable to motions to
9
The language of this subsection has not changed since the Act was first
passed in 1970, except to substitute the term “judicial officer” for the term “Family
Division.” Compare District of Columbia Court Reform and Criminal Procedure
Act of 1970, 84 Stat. at 547, with D.C. Code § 16-1005(d).
22
extend CPOs, however, has been the subject of continued inquiry. This is, in part,
because, while § 16-1005(c) defines “good cause” to issue a CPO in the first
instance, § 16-1005(d) does not define “good cause” to extend a CPO. We have
therefore sought, in our case law, to define the good cause determination necessary
for extending a CPO and to articulate additional relevant considerations.
B. Cruz-Foster, Maldonado, and Robinson
In Cruz-Foster v. Foster, decided in 1991, we first noted the definitional gap
in the IntraFamily Offenses Act, observing that “[t]he term ‘good cause,’” as used
in D.C. Code § 16-1005(d), “is not defined in the statute.” Cruz-Foster, 597 A.2d
at 929. Reasoning that a CPO is injunctive in nature, and that a petitioner seeking
a CPO extension is seeking “an injunction which has not been previously granted,”
we defined good cause according to the standard for civil injunctive relief, as
articulated by the Supreme Court:
[T]he moving party must satisfy the court that relief is
needed. The necessary determination is that there exists
some cognizable danger of recurrent violation, something
more than the mere possibility which serves to keep the
case alive. The chancellor’s decision is based on all the
circumstances; his discretion is necessarily broad and a
strong showing of abuse must be made to reverse it. To be
considered are the bona fides of the expressed intent to
comply, the effectiveness of the discontinuance and, in
23
some cases, the character of the past violations.
Id. at 930 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)).
The dissent mistakenly posits that Cruz-Foster’s definition of “good cause” as a
“cognizable danger of recurrent violation” was limited to its facts, post at 64-65 &
n.28; however, the language of Cruz-Foster offers no support or indication that its
holding can or should be interpreted in as narrow or restricted manner as the
dissent suggests. 10 The holding in Cruz-Foster explicitly fills a gap in the Act by
defining “good cause” under § 16-1005(d), without caveat or qualification. See
Cruz-Foster, 597 A.2d 929-31.
As to the “character of the past violations,” the Cruz-Foster court clarified
that “the past history of the case is critical to the [good cause] determination”
because a respondent’s “past conduct is important evidence – perhaps the most
important evidence – in predicting [the respondent’s] probable future conduct”; the
trial court therefore cannot only “examin[e] the most recent episode” in a case, but
10
We note that, while the dissent rejects one of Cruz-Foster’s central
holdings – the definition of “good cause” under § 16-1005(d) – it takes no issue
with Cruz-Foster’s other holdings, including the allocation of the burden to
petitioner, the preponderance quantum of proof, the evaluation of the entire
mosaic, and appellate review for abuse of discretion in CPO proceedings. Post at
59-60, 66-67, 70-72; see also Cruz-Foster, 597 A.2d at 930-32.
24
“must be apprised of the entire mosaic” of the case. Id. at 930 (citations and
internal quotation marks omitted).
We then held that, in addition to determining whether there is “good cause,”
i.e., a cognizable danger of a recurrent violation, the trial court must – in light of
the remedial nature of the Act – consider whether the “balance of the harms”
favors extending the CPO, taking into account the potential injury to the petitioner
if the CPO is not extended and the potential injury to the respondent if the CPO is
extended. Id. at 930-31.
Applying these considerations to the facts in Cruz-Foster, we held that the
trial court abused its discretion in focusing only on the most recent episodes and in
failing to consider the entire mosaic of the case – including the respondent’s
previous violation of the CPO, for which he was convicted of criminal contempt
and imprisoned, as well as conditions of release in another criminal case that
required the respondent to stay away from the petitioner – in its determination of
whether there was good cause to extend the CPO, i.e., whether there was a danger
of future abuse. Id. at 931-32. We therefore vacated and remanded for the trial
court to reconsider and enter “more comprehensive findings of fact and
conclusions of law.” Id. at 932.
 25
Two years later, in Maldonado v. Maldonado, we applied the logic, though
not the terminology, of Cruz-Foster. We held that, in considering a motion to
extend an existing CPO, the trial court abused its discretion in finding that there
was no possibility that the respondent may commit a criminal offense against the
petitioner in the coming year, i.e., no cognizable danger of a recurrent violation.
Maldonado, 631 A.2d at 43. We concluded that, even though the respondent was
incarcerated, there was a chance that he could be released from prison prior to the
expiration of the requested one-year CPO extension, and, even if he remained in
prison, it was possible for him to threaten or harass the petitioner by telephone,
mail, or through third parties, as he had done in the past. Id. On this point, we
noted that the CPO “serves as a potential deterrent [of future offenses] and
provides a measure of peace of mind for those whose benefit it was issued.” Id.
We went on to note that the trial court did not consider the fact that the CPO
granted child custody and child support payments to the petitioner, and that both
would be jeopardized if the CPO were not extended – meaning it did not balance
the potential harms to the parties. Id. at 43-44. Finally, the respondent had
consented to the extension of the CPO, thereby rendering the foregoing analysis
somewhat academic; we observed that the trial court did not explain its reasons for
rejecting the respondent’s consent, which also amounted to an abuse of discretion.
26
Id. at 44. We therefore remanded. Id.
In 2005, we decided Robinson v. Robinson, a case in which the parties were
in the process of divorcing, the petitioner was still living in the marital home, and
the petitioner obtained a modified CPO that ordered the respondent to stay 100 feet
away from her – but also allowed him to live in the home next door to her (as both
houses had been marital property). Robinson, 886 A.2d at 81-84. The trial court
extended the modified CPO for one year, even though the houses were only ten to
twelve feet apart. Id. at 83-84. We observed that the trial court’s order “betrays a
tension between its finding that potentially ‘tragic violence’ might occur between
the parties and its decision to allow [the respondent] to live within twelve feet of
[the petitioner],” and that “the Act clearly envisions allowing safety concerns to
trump property rights.” Id. at 86. We elaborated:
Although ordering a person to vacate his or her home or
denying the use of owned property is a serious step, not
to be lightly undertaken, when the trial court finds that
[criminal] offenses have been committed or are
imminent, it can be a necessary measure to ensure peace
and safety.
Id. We concluded that the trial court abused its discretion because it did not rest
its conclusion on correct legal principles, and we therefore remanded for the trial
court to consider “the entire mosaic of facts” and the “broad remedial measures
27
available to safeguard [the petitioner’s] safety and peace of mind.” Id. at 87.
Though we did not employ the precise nomenclature of Cruz-Foster, we again
applied its reasoning: in essence, we held that the trial court had properly found a
cognizable danger of a recurrent violation and therefore good cause to extend the
CPO, but that it had improperly balanced the harms to the parties in that the
provisions of the extended CPO did not adequately reflect the fact that safety
concerns may trump property rights. 11
C. Applicable Legal Principles
From the statute and our case law, we can distill the following principles.
1. Good Cause
First, a CPO is a form of injunctive relief, designed to enjoin the commission
of certain kinds of criminal offenses. See Cruz-Foster, 597 A.2d at 929-31.
Indeed, we have stated that “[a] petition for a CPO is, in substance, a suit for a one-
11
Both Maldonado and Robinson follow the logic of Cruz-Foster. The
dissent’s attempt to use Maldonado and Robinson to strip Cruz-Foster of its good
cause holding is unpersuasive. Post at 67-69.
28
year injunction; the injunction may subsequently be extended.” Tyree v. Evans,
728 A.2d 101, 104 (D.C. 1999); see also Harrison, 461 F.2d at 1211 (“[A] civil
protection order . . . is in the nature of an injunction.” (internal quotation marks
omitted)); Tyree, 782 A.2d at 106 (“An injunction is an extraordinary remedy.”).
The purpose of a CPO is to enjoin conduct – here, a criminal offense or the threat
of a criminal offense. If there is no appreciable risk that that conduct will occur,
then there is no need to issue an injunction. This is because, in general, “a plaintiff
seeking forward-looking relief, such as an injunction, must allege facts showing
that the injunction is necessary to prevent injury otherwise likely to happen in the
future,” Equal Rights Ctr. v. Props. Int’l, 110 A.3d 599, 603 (D.C. 2015), and the
IntraFamily Offenses Act in particular “is specifically aimed at preventing future
injury,” Salvattera II, 111 A.3d at 1037, as a CPO issued under the Act “serves as
a potential deterrent [of future offenses] and provides a measure of peace of mind
for those whose benefit it was issued.” Maldonado, 631 A.2d at 43 (internal
citation, quotation marks, and brackets omitted).
It is for this reason that, just as issuance of an initial CPO under § 16-
1005(c) is based on “good cause to believe the respondent committed or threatened
to commit a criminal offense against the petitioner,” the extension of a CPO under
§ 16-1005(d) for “good cause” must mean good cause to believe that there is a
29
“cognizable danger of a recurrent violation,” Cruz-Foster, 597 A.2d at 930, i.e., a
cognizable danger that respondent will commit or threaten to commit a criminal
offense against the petitioner.
When the trial court initially issues a CPO pursuant to D.C. Code § 16-
1005(c), its finding, by a preponderance of the evidence, that the respondent has
committed or threatened to commit a criminal offense functions as a determination
that, if a CPO is not issued, there is a danger that the respondent will commit or
threaten to commit a criminal offense against the petitioner. Injunctive relief in the
form of a CPO for “up to one year,” D.C. Code § 16-1005(d), may therefore be
necessary to prevent the commission or threat of a criminal offense.
However, “[t]he Act does not authorize the issuance of permanent
injunctions.” Cruz-Foster, 597 A.2d at 929. 12 Instead, our statute expressly limits
the duration of a CPO to one year, D.C. Code § 16-1005(d). Thus, when the trial
court considers whether to extend an existing CPO, it cannot, as the dissent
12
It may be more apt to say that the Act does not authorize the issuance of
“indefinite” injunctions. While a preliminary injunction is issued before a
determination on the merits, a permanent injunction is issued after a determination
on the merits – and, although it is called “permanent,” a permanent injunction may
vary in duration and is not necessarily indefinite. See, e.g., 43A C.J.S. Injunctions
§§ 11, 15 (2020); 42 Am. Jur. 2d Injunctions §§ 9, 11 (2020).
30
suggests, simply rely upon the trial court’s initial finding, in issuing the original
CPO, that the respondent committed or threatened to commit a criminal offense.
Post at 58-59 & n.16. This would amount to an end run around the statute’s
requirement that, to extend a CPO, good cause – a cognizable danger of a recurrent
violation, D.C. Code § 16-1005(c), (d); Cruz-Foster, 597 A.2d at 930 – is
necessary. The statute and our case law make clear that more is required to extend
a CPO than just the findings supporting the original CPO. Otherwise, the original
CPO is converted into a lifetime injunction renewable in one-year increments.
Such an approach is contrary to the statute and would also fail to take account of
relevant facts, such as subsequent developments and changes in circumstances that
occur after the initial CPO is issued. Such subsequent developments are
undoubtedly germane in assessing future danger and the need for additional
extensions, which is presumably a significant reason for the statute’s imposition of
a one-year limit on the CPO. And, in light of the restraints on liberty that may
flow from CPOs, see infra II.C.2, such a situation could present due process
concerns, given that CPOs are civil injunctions and do not constitute criminal
convictions of respondents. 13 Relatedly, indefinite CPOs, and their attendant
13
See, e.g., Addington v. Texas, 441 U.S. 418, 423-25 (1979) (noting that,
“[i]n cases involving individual rights, whether criminal or civil, the standard of
proof at a minimum reflects the value society places on individual liberty,” and
observing that, “[i]n a criminal case . . . the interests of the defendant are of such
(…continued)
31
constraints on respondents, could, arguably, also run afoul of one of the primary
remedial purposes of the IntraFamily Offenses Act, which is to rehabilitate, rather
than punish, offenders. See supra II.A & note 7. Accordingly, the trial court
cannot, as the dissent urges, take an analytical shortcut by relying on the existence
of the original CPO to extend the CPO at the request of a petitioner. 14 Rather, the
trial court must make an independent determination, based on current and complete
information – specifically, the entire mosaic of the case – that good cause exists to
extend the CPO under § 16-1005(d).
Accordingly, the good cause determination under § 16-1005(d) requires the
court to find, consistent with § 16-1005(c) and the injunctive nature of a CPO, as
well as with Cruz-Foster and its progeny, that, if the CPO is not extended, there is
a cognizable danger that the respondent will commit or threaten to commit a
criminal offense against the petitioner in the coming year. Cf. 42 Am. Jur. 2d
Injunctions § 34 (“Injunctive relief is warranted on a showing of threatened injury.
(…continued)
magnitude that,” “under the Due Process Clause[,] . . . the state [must] prove the
guilt of an accused beyond a reasonable doubt.” (cleaned up)).
14
Nor can the trial court start with a desired remedy for the petitioner (no
matter how well-intentioned) without first establishing the legal predicate of “good
cause” for the remedy.
32
To be entitled to an injunction, though, the plaintiff must establish that he or she
has sustained or is immediately in danger of sustaining some certain and direct
injury as a result of the challenged conduct. An injunction will not issue unless
there is an imminent threat of illegal action. In other words, the injury or threat of
injury must be real and immediate, not conjectural or hypothetical. The power to
grant injunctive relief is not exercised to allay a mere apprehension of injury at an
indefinite future time. The apprehension of injury must be well-grounded, which
means that there is a reasonable probability that a real injury for which there is no
adequate remedy at law will occur if the injunction is not granted.” (footnotes
omitted)); 43A C.J.S. Injunctions § 15 (An injunction “is an extraordinary remedy
that is granted only when there is no other way to avoid irreparable harm to the
plaintiff. The remedy is primarily to prevent future acts of harm. . . . The
injunction remains in force only so long as the conditions that produce the
injunction remain. . . .” (footnotes omitted)).
Our precedents provide that this good cause determination must take into
account the entire mosaic of the case, which encompasses the full history of the
parties’ relationship and interactions – both before and after the original CPO was
issued. See Salvattera II, 111 A.3d at 1037; Robinson, 886 A.2d at 86-87; Tyree,
728 A.2d at 106; Cruz-Foster, 597 A.2d at 930, 932; see also Cruz-Foster, 597
33
A.2d at 930 n.3 (“It is true that in this case, [the petitioner] seeks extension of an
existing prior order rather than entry of a brand new one. We do not believe that
this affects her burden, but the court must consider the entire history of her
relationship with [the respondent], as reflected in the record, in determining
whether [the petitioner] has presented evidence sufficient to warrant the relief
sought.”). In other words, the court should examine evidence of what occurred
before the original CPO was issued, the nature of the criminal offense that served
as the basis for the CPO, and what has occurred since the original CPO was issued
and any subsequent extensions were granted, as the case may be. This last
category is perhaps especially relevant, as it constitutes new information that was
not previously available to the trial court in issuing or extending the CPO, and,
given its recency, may be particularly probative of what is likely to occur in the
coming year. It may include violations of the conditions of the CPO that would or
did give rise to contempt proceedings, or, conversely, compliance with the
conditions of the CPO; participation in treatment or rehabilitative programs, or
lack thereof; changes in the residence or the occupational, financial, or personal
status of the parties; and any other relevant circumstances or considerations. In
short, the trial court must evaluate the total mix of information in determining
whether there is a cognizable danger that the respondent will commit or threaten to
34
commit a criminal offense against the petitioner in the coming year. 15
The IntraFamily Offenses Act, our case law, and the injunctive nature of
CPOs make clear that “good cause” requires a finding of cognizable danger of
future injury. While we share the dissent’s sentiments and concern for victims of
intrafamily and other offenses, the dissent’s interpretation of the Act and of our
case law cannot be squared with the language of the statute and the actual holdings
of our precedents. The legislature must first amend the statute in order for the
dissent’s desired outcome to be reached here. Under the Act, the trial court may
order remedial measures, rehabilitative or otherwise, once the requisite showing of
a cognizable danger of future injury is made for injunctive relief in the form of a
CPO. As with any injunctive relief, a petitioner’s desire or request for a particular
remedy, alone, does not satisfy his or her burden to demonstrate good cause, i.e., a
risk of future injury. The benefit a petitioner may derive from a remedy,
15
Cf. Molloy v. Molloy, 137 A.D.3d 47, 53 (N.Y. App. Div. 2016) (“Thus,
in determining whether good cause [to extend a protective order] has been
established, courts should consider, but are not limited by, the following factors:
the nature of the relationship between the parties, taking into account their former
relationship, the circumstances leading up to the entry of the initial order of
protection, and the state of the relationship at the time of the request for an
extension; the frequency of interaction between the parties; any subsequent
instances of domestic violence or violations of the existing order of protection; and
whether the current circumstances are such that concern for the safety and well-
being of the petitioner is reasonable.” (citation omitted)).
35
emotionally or otherwise, is certainly an important consideration and a positive
outcome, but to reach the remedy, the legal predicate for the CPO must first be
established. Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983) (“The
emotional consequences of a prior act simply are not a sufficient basis for an
injunction absent a real and immediate threat of future injury by the defendant.”). 16
This is particularly so, given that the Act is designed to rehabilitate both petitioners
and respondents. See supra II.A & note 7. Thus, to the extent that a petitioner
seeks remedies where good cause for a CPO is lacking, the petitioner may pursue
them in other ways. Cf. Lyons, 461 U.S. at 107 n.8 (“Of course, emotional upset is
a relevant consideration in a damages action.”). And, while a petitioner may
continue to experience the emotional effects of a prior incident for years, the Act
16
This court has not held, contrary to the dissent’s assertions (well-meaning
as they may be) that remediation of “emotional violence,” without the necessary
legal predicate – a finding of cognizable danger of future injury – establishes good
cause. Post at 57 & n.10-11 (citing Richardson, 878 A.2d at 1217 n.6), 59 n.17
(citing Holmon v. District of Columbia, 202 A.3d 512, 522 (D.C. 2019)). In
Holmon, we cited Richardson in support of our conclusion that a respondent who
telephones a petitioner violates a CPO’s no-contact provision even when the
petitioner does not answer the phone – a holding that is not relevant here. Holmon,
202 A.3d at 522. In Richardson, we noted that stalking, which may be
characterized as a form of “emotional violence,” is a predicate criminal offense
under the IntraFamily Offenses Act and may therefore serve as the basis for issuing
a CPO, i.e. “good cause.” Richardson, 878 A.2d at 1216-17 & n.6; see also supra
note 8. Thus, Richardson confirms that committing or threatening a criminal
offense constitutes good cause to issue a CPO – and is entirely consistent with our
holding today that a cognizable danger of the commission or threat of a criminal
offense constitutes good cause to extend a CPO.
36
expressly limits CPOs to one year unless the petitioner establishes good cause, i.e.,
cognizable danger of future injury. Thus, to the extent that petitioners, our
dissenting colleague, or others seek to lengthen the duration of a CPO or modify
the “good cause” legal predicate for the issuance or extension of a CPO, any effort
to amend the language of the Act must be directed toward the Council. See Kelly
v. District of Columbia Dep’t of Emp’t Servs., 214 A.3d 996, 1011-12 (D.C. 2019)
(“We do not pass upon the advisability of the scheme created by the statute,
substitute our opinion for that of the Council, or seek to legislate in its place;
rather, we take the D.C. Code as we find it.”). 17
Our articulation of the good cause standard is fully grounded in the Act and
our precedents, which are binding on this division. See M.A.P. v. Ryan, 285 A.2d
310, 312 (D.C. 1971). 18
17
This does not mean, as the dissent asserts, that CPOs can only be issued
or extended “begrudgingly.” Post at 64. It simply means that CPOs must be
issued or extended consistent with the law.
18
There is simply no merit to the dissent’s assertions to the contrary. Post
at 48-49, 58-59, 66-67, 69-70. Rather, what appears to be statutorily unmoored is
the dissent’s speculation regarding the meaning of “good cause” in § 16-1005(d)
and its attempts to render § 16-1005(d)’s “good cause” requirement meaningless
by asserting that the trial court can indefinitely extend a CPO based solely on the
fact that the CPO was issued in the first instance, id. at 57-62 – an effort that we
reject as inconsistent with the statute and our case law.
37
In sum, in considering a motion to extend a CPO, if the trial court
determines, based on the entire mosaic and consistent with considerations
discussed above, that the petitioner has demonstrated by a preponderance of the
evidence that there is a cognizable danger that, in the absence of an extension of
the CPO, the respondent will commit or threaten to commit a criminal offense
against the petitioner in the coming year, good cause exists and it “may” extend the
CPO. D.C. Code § 16-1005(d). If the trial court does not so determine, good
cause does not exist and it may not extend the CPO.
2. Balance of the Harms
Once the trial court has found good cause and thereby satisfied the statutory
threshold for extension, it must proceed to balance the potential harms to the
parties in order to determine whether it will, in fact, extend the CPO – and, if so,
what the scope and parameters of that extension will be.
As we have noted, “[a]n injunction is an extraordinary remedy,” and,
“[e]ven under a remedial statute directed at domestic violence, the judge is obliged
to apply established equitable principles.” Tyree, 728 A.2d at 106 (citing Cruz-
38
Foster, 597 A.2d at 931). Consistent with these principles, we have generally
observed that, “[b]efore awarding injunctive relief, we must determine that more
harm will result to the movant from the denial of the injunction than will result to
the nonmoving party from its grant.” District of Columbia v. Greene, 806 A.2d
216, 223 (D.C. 2002) (cleaned up). And with respect to the IntraFamily Offenses
Act in particular, we have clarified that “a court must consider the ‘balance of
harms’ between the petitioner and the respondent.” Salvattera II, 111 A.3d at 1037
(quoting Cruz-Foster, 597 A.2d at 930). 19
19
Cf. Restatement (Second) of Torts § 941 (Am. Law. Inst. 2019 update)
(“When a plaintiff proves that a tort has been committed or is threatened and
shows that other remedies will not make him whole, an injunction is not to be
issued as a matter of course. Elementary justice requires consideration of the
hardship the defendant would be caused by an injunction as compared with the
hardship the plaintiff would suffer if the injunction should be refused.”); 42 Am.
Jur. 2d Injunctions § 14 (“Even if facts justifying an injunction, such as success on
the merits or irreparable injury, have been proven, a court must still exercise its
discretion to decide whether to grant an injunction.” (footnotes omitted)); Id. at
§ 38 (“An injunction is a potential remedy in any case in which it may provide
significant benefits that are greater than its costs or disadvantages. The decision to
issue injunctive relief is based on a balancing of hardships and conveniences, or
equities. . . . [T]he harm suffered by the plaintiff in the absence of injunctive relief
must outweigh the harm that the defendant would endure on the granting of the
injunction. A court must weigh the benefits and burdens that granting or denying
an injunction will have on the parties.” (footnotes omitted)); 43A C.J.S. Injunctions
§ 88 (“The relief granted must be compatible with the equities of the case, in order
to provide significant benefits that are greater than the costs or disadvantages. The
court will balance the parties’ relative hardships, conveniences, rights, oppression,
injustice, harms, or injuries.” (footnotes omitted)).
39
Our case law also supports the notion that a trial court considering a motion
to extend a CPO should proceed to balance the harms only once it has found good
cause, i.e., a cognizable danger of a recurrent violation – due in part to the fact that,
as discussed above, if there is no appreciable danger of future injury, there is no
basis for an injunction. In Cruz-Foster, we held that good cause for a CPO
extension must be based on a cognizable danger of a recurrent violation, then
stated: “Moreover, and especially in light of the remedial character of the
Intrafamily Offenses Act, it is necessary to consider whether the ‘balance of
harms’ favors the grant of [the petitioner’s] application.” Cruz-Foster, 597 A.2d at
930. In Maldonado, we concluded that there was a danger that the respondent
would threaten or assault the petitioner if the CPO were not extended, then held:
“In addition, we note that there are other factors that should be taken into account,”
and proceeded to evaluate the potential harms to the parties. Maldonado, 631 A.2d
at 43-44. And, in Robinson, we considered the balance of the harms – and stated
that safety may trump property rights – only after recognizing the trial court’s
finding that there was a potential for “tragic violence,” i.e., a cognizable danger of
a recurrent violation between the parties. Robinson, 886 A.2d at 86.
Accordingly, if the trial court has found that good cause exists to extend the
CPO, it must then evaluate the harm to the petitioner that will occur if the CPO is
40
not extended and the harm to the respondent that will occur if the CPO is extended,
and it must weigh these harms against one another. An extension is warranted if it
determines that the potential harm to the petitioner outweighs the potential harm to
the respondent. 20
The balance-of-the-harms analysis may take into account several factors.
Safety, and resulting peace of mind, are important concerns. Indeed, we have
stated, in the context of balancing harms, that “a CPO is designed to protect
[petitioners] from acts and threats of violence,” and that a trial court should
consider whether a respondent will “resum[e] . . . his prior assaultive conduct” and
thereby “seriously harm[]” the petitioner. Cruz-Foster, 597 A.2d at 930. We have
likewise noted that a CPO “serves as a potential deterrent [of future crimes] and
provides a measure of peace of mind for those whose benefit it was issued.”
Maldonado, 631 A.2d at 44. Liberty interests are also relevant, as we have, in the
past, observed that a CPO extension with a stay-away order “would do no more
than require [the respondent] to obey the law and, in this case, to stay away from
20
Under our existing statute and case law, a CPO issuance or extension
cannot be solely based on the desire to provide a specific beneficial remedy to a
petitioner, no matter how well-meaning. A CPO is a form of injunctive relief that
may not be extended without “good cause,” i.e., a cognizable danger that, in the
absence of an extension, the respondent will commit or threaten to commit a
criminal offense against the petitioner in the coming year. See supra II.C.1.
41
[the petitioner], which he was apparently ready to do in any event,” meaning “his
liberty will not be affected.” Cruz-Foster, 597 A.2d at 930-31. We have similarly
observed that “the stakes for [the respondent in a CPO action] were high,” as the
trial court’s “contempt power” meant that a “violation of the order would . . .
subject [him] to possible imprisonment, as well as to a fine,” and that “other
provisions of the CPO in this case significantly limited [his] freedom of action.”
Tyree, 728 A.2d at 104. In addition, we have recognized property interests, as well
as the lesser weight to be accorded to them, as we have stated that the Act “allows
safety concerns to trump property rights.” Robinson, 886 A.2d at 86. We have
also said that CPO provisions affecting children in common are “a factor that must
be taken into account, along with others,” and observed that the harm to a
petitioner from not extending a CPO might have included the expiration of the
child custody and child support provisions of the CPO. Maldonado, 631 A.2d at
43-44. And we have acknowledged social stigma, stating: “The people who come
before this particular branch of the Family [Court] will be, if they are offenders,
civil offenders. . . . We do not wish to stigmatize them. We want them to keep
their earning capacity and also the possibility of self[-]respect and their connection
with the family.” Harrison, 461 F.2d at 1211 (citation and internal quotation
marks omitted). 21
21
As one California Court of Appeal has elaborated:
(…continued)
42
Thus, in balancing the harms, the trial court should examine multiple factors,
including, but not limited to, safety (and resulting peace of mind), restraints on
liberty, restraints on property, family interests, social stigma, and other collateral
consequences and relevant circumstances. We also emphasize that the trial court
may accord different weight to different potential harms, analyzing the totality of
the circumstances to balance the harms and exercising its discretion to fashion a
CPO extension that is tailored to the situation of the parties.
If the trial court has determined, based on the balance of the harms, that it
(…continued)
[The] “burdens” on the restrained party can be very real.
There often will be some social stigma attached while a
person is subject to a protective order. Existing
employers may frown on an employee who is subject to
such an order and prospective employers almost surely
will. Thus the restrained party may lose out on a
promotion or a job. The continued existence of such an
order likewise may, fairly or unfairly, interfere with the
restrained party’s social life. Furthermore, where children
are involved, a protective order designed to prohibit
access to an abused spouse may have the collateral effect
of limiting the restrained party’s access to his (or her)
children even when they are not potential targets of abuse.
Ritchie v. Konrad, 10 Cal. Rptr. 3d 387, 398-99 (Cal. Ct. App. 2004).
43
will extend the CPO, its balancing analysis will also inform its determination of the
proper scope and parameters of the CPO extension, including duration and
conditions of compliance. The trial court may extend a CPO for “up to one year,”
D.C. Code § 16-1005(d), and it may include in the CPO a variety of prohibitory
and mandatory provisions that are designed to address the situation of the parties,
§ 16-1005(c)(1)-(12), including provisions geared to both “protect[ion]” and
“rehabilitation.” Salvattera II, 111 A.3d at 1034-35 (citations and internal
quotation marks omitted); see also supra II.A. 22
III. Discussion
Because we have clarified the legal standard for extending a CPO, and
because over two years have elapsed since Ms. Ramirez filed her motion to extend
22
Cf. 42 Am. Jur. 2d Injunctions § 14 (“Courts also have discretion with
respect to the scope of any injunction granted.”); id. § 38 (“[T]his balancing of
conveniences and inconveniences . . . calls for the exercise of sound judicial
discretion in view of the circumstances. . . .”); 43A C.J.S. Injunctions § 16 (An
“injunction should never be broader than is necessary to secure to the injured party
relief warranted by the circumstances involved in the particular case. It should be
narrowly tailored to fit the specific legal violation, and not impose any greater
restriction or burden than is necessary to provide the protection sought. However,
the court should not make the injunction so narrow that it invites easy evasion.”
(footnotes omitted)); Id. at § 88 (“[S]ince an injunction is an equitable remedy, a
trial court weighs the respective conveniences and hardships of the parties and
balances the equities.”).
44
the CPO on December 1, 2017, we now vacate and remand so that the trial court
may reconsider Ms. Ramirez’s motion in light of this opinion and in light of the
subsequent developments and the current circumstances of the parties.
On remand, the court should consider all relevant evidence in determining
whether to extend the CPO. This includes the evidence adduced in connection
with the issuance of the original CPO and subsequent CPO extensions, as well as
evidence of what has occurred since the trial court held hearings on the December
1, 2017 motion and issued its March 20, 2018 order. 23
The court may wish to hold additional hearings and consider additional
evidence in order to obtain up-to-date information. Cf. Robinson, 886 A.2d at 87
(“Accordingly, we remand the case to the trial court so that it may re-evaluate the
23
For instance, in a filing before the trial court, Mr. Salvattera alleged that,
on February 19, 2018, following the close of hearings on Ms. Ramirez’s December
1, 2017 motion to extend the CPO, Ms. Ramirez reported to the police that Mr.
Salvattera was driving down Georgia Avenue NW in violation of the CPO; the
police stopped Mr. Salvattera and advised him to stay away from the
neighborhood. In addition, Ms. Ramirez has represented before this court that,
since the most recent CPO hearings before the trial court, she has received
approximately $57,000 in damages from the owner of the apartment building as a
result of a successful wrongful eviction proceeding, though she is defending
against a landlord/tenant suit alleging that she owes more than $20,000 in back
rent.
45
situation of the parties, considering the entire mosaic of facts before it (including
any developments since the entry of the last order).”); Cruz-Foster, 597 A.2d at
932 (vacating, remanding, and stating: “Since any CPO which may be entered will
look to the future, the judge is of course authorized to conduct further proceedings
to determine whether there have been any developments since she last heard the
case which would affect [the petitioner’s] right to relief.”).
In vacating and remanding, we resolve the appeal. This court’s stay pending
appeal of the expiration provisions of the March 20, 2018 CPO is therefore
terminated. We direct the trial court, which now has jurisdiction over the case, 24 to
instate an immediate temporary stay of the expiration provisions of the March 20,
2018 CPO extension pending its final resolution of the December 1, 2017 motion
to extend. 25
24
Mandate to issue forthwith.
25
We note that, in March 2019, while this appeal was pending, Ms.
Ramirez filed, in the trial court, another motion to extend the CPO and a motion to
stay consideration of that motion pending resolution of a “related appeal.” It
appears that Ms. Ramirez was referring to this appeal, which was a direct appeal in
the same matter, dealing with the same aspects of the case, meaning it would not
have been proper for the trial court to resolve those motions while this appeal was
pending – and the trial court rightly refrained from doing so. See, e.g., Stebbins v.
Stebbins, 673 A.2d 184, 189-90 (D.C. 1996). Today’s decision resolves the
appeal, so the trial court may now address the March 2019 motions. However, the
March 2019 motion to extend appears to be either premature or improperly filed.
(…continued)
46
IV. Conclusion
In sum, we review a trial court’s decision on a motion to extend a CPO for
abuse of discretion. We will affirm the granting of an extension if the trial court
determined by a preponderance of the evidence first that there was good cause to
extend the CPO – defined as a finding, based upon the entire mosaic of the case,
that there was a cognizable danger that the respondent will commit or threaten to
commit a criminal offense against the petitioner in the coming year if the CPO is
not extended – and second that the balance of the potential harms to each party
merited an extension, the scope and parameters of which were informed by this
balancing analysis. We will likewise affirm the denial of an extension if the trial
(…continued)
On remand, the trial court will reconsider its March 20, 2018 order, which was
issued in response to Ms. Ramirez’s December 1, 2017 motion to extend the CPO
– an order which has remained in effect due to this court’s stay pending appeal,
and which will continue to remain in effect until the trial court’s final resolution of
the matter (pursuant to our direction to the trial court, described above). If the trial
court decides, consistent with this opinion, to extend the CPO, Ms. Ramirez’s
March 2019 motion is premature, as she would not move to extend the CPO yet
again until that time period draws to a close. If the trial court decides, consistent
with this opinion, not to extend the CPO, then the CPO has expired and Ms.
Ramirez cannot attempt to extend it, but must instead petition for a new CPO. Of
course, Ms. Ramirez is free to submit the information and evidence that she
included with her March 2019 motion, as well as any updated information and
evidence, in additional filings or hearings ordered by the trial court on remand.
47
court determined by a preponderance of the evidence that there was no good cause
to extend the CPO – defined as a finding, based upon the entire mosaic of the case,
that there was no cognizable danger that the respondent will commit a criminal
offense against the petitioner in the coming year if the CPO is not extended – or, in
the alternative, that, even if there was good cause, the balance of the potential
harms to each party did not merit an extension.
In light of the legal standard set forth above and the time that has elapsed
since the motion on review was filed, we vacate the trial court’s order and remand
for further proceedings consistent with this opinion.
So ordered.
GLICKMAN, Associate Judge, dissenting in part and concurring in the
judgment: I concur in the opinion and judgment of my colleagues only insofar as
they do not approve, and instead vacate, the trial court’s denial of Ms. Ramirez’s
motion for a one-year extension of her Civil Protection Order against Mr.
Salvattera. In my view, for reasons I shall explain briefly, the trial court’s ruling is
indefensible and unjust.
I disagree with my colleagues’ holding that “good cause” to extend a CPO
“is defined as a cognizable danger that the respondent will commit or threaten to
commit a criminal offense against the petitioner in the coming year if the CPO is
not extended.” Ante at 2. Although the majority opinion does little to explicate the
meaning of this cryptic “definition,” it apparently is intended to require the
petitioner to demonstrate (and the court to find) a likelihood, and not just a
possibility, that the respondent will commit a future criminal offense against her.
See ante at 22-23. This proof requirement is not found in the Intrafamily Offenses
Act (IFA), it conflicts with the paramount remedial goals of that legislation, and it
is not mandated by past decisions of this court. It totally ignores the fact that the
IFA provides for CPOs not only to prevent criminal violence and abuse, but also to
remediate their lasting effects and rehabilitate the victim. That means either of
those goals may constitute good cause to extend a CPO. As the facts of this case
49
demonstrate, the majority’s definition of good cause, by eliminating the latter
justification for extending a CPO, will serve only to frustrate the remedial goals of
the IFA and jeopardize the recovery and wellbeing of victims of abuse.
I.
Ms. Ramirez is the recovering victim of a sexual assault by Mr. Salvattera.
In 2013, he was enamored of her and took advantage of his position as her resident
building manager to surreptitiously photograph her and thereafter sexually abuse
her when she became incapacitated in his apartment—there is evidence, and Ms.
Ramirez believes, that he drugged her—while visiting him to discuss her
precarious rent situation. Ms. Ramirez was traumatized by the attack. 1 On her
1
The majority opinion notes that a SANE nurse found no physical injury or
other forensic evidence of a sexual assault when Ms. Ramirez went to the hospital.
Ante at 6. After Ms. Ramirez fled from Mr. Salvattera’s apartment, she reported
the sexual assault to her sister and two friends. She did not go to the hospital until
the following day, however. Two experts in the medical examination of potential
sexual assault victims, whom the trial judge fully credited, testified at the initial
CPO hearing that absence of physical injury “is common” and “can be consistent
with a sexual assault taking place.” One expert added that only forty percent of
sexual assault cases have actual medical evidence, though just two percent of the
accusations are thought to be false. There was additional expert testimony that,
because Ms. Ramirez waited a day before going to the hospital for an examination,
it likely was too late to find evidence she had been drugged because any drugs in
her system would have been metabolized.
50
behalf, the Superior Court issued a CPO in August 2014 requiring Mr. Salvattera to
refrain from assaulting, threatening, or harassing Ms. Ramirez; to stay one hundred
feet away from her; and to vacate the apartment building.
The latter requirement was necessary to implement the stay-away condition
and protect Ms. Ramirez from further contact with Mr. Salvattera in and around the
close quarters of her building—a building she could not enter or leave without
passing right by the door to Mr. Salvattera’s apartment. Mr. Salvattera refused to
comply with the order to vacate, however, for some ten months, until this court
upheld it on appeal. 2 In the interim, Ms. Ramirez could not bear to stay there
while he was around, and she and her children were effectively homeless.
In subsequent years, up to the present proceeding, the Superior Court
repeatedly found good cause to extend the CPO—including its requirement that
Mr. Salvattera remain out of her building. That changed when the trial court ruled
on Ms. Ramirez’s most recent motion for an extension in 2018. This time, the
judge concluded that, although Ms. Ramirez herself is “terrified” of Mr. Salvattera,
there is no cognizable danger that he will abuse her again. The judge further
2
Salvattera v. Ramirez, 111 A.3d 1032 (D.C. 2015).
51
concluded that, although Ms. Ramirez “will suffer irreparable harm if the
injunction is denied, because she will be unable to live in the apartment building
while Mr. Salvattera lives there without suffering serious emotional distress,” that
harm was outweighed by the harm to Mr. Salvattera from extending the CPO and
preventing him from returning to the building. The judge therefore denied Ms.
Ramirez’s motion for a one-year extension of the CPO, and extended it for only
three months to give Ms. Ramirez time to decide whether she would move herself
and her family out of the building in which she had lived for some twenty years.
The majority opinion vacates the trial court’s order and remands for de novo
proceedings on whether there is good cause to extend the CPO, and it does not
express or imply any approval of the court’s rulings. I therefore think it
unnecessary for me to address them in depth. But I will explain briefly why I think
neither ruling is defensible or fair.
In concluding there is no “cognizable danger” that Mr. Salvattera will abuse
Ms. Ramirez again if he resumes living in her building, the court relied heavily on
its finding that he did not assault, threaten, or harass her when the CPO barred him
from the building and her presence. That may be a good reason to maintain the bar
52
in effect; it is not much of a reason to lift it and allow him to come back. 3 What
we know for a fact is that when Mr. Salvattera was not barred from Ms. Ramirez’s
building, he took advantage of his position as building manager to sexually assault
her. In prior proceedings to extend the CPO, the trial court recognized that Mr.
Salvattera’s “past conduct of sexually abusing Ms. Ramirez is extremely troubling
and does serve as a predictor of his probable future conduct.” Since then, Mr.
Salvattera has vigorously resisted complying with the CPO’s directive to live
elsewhere away from her, and he persisted for years in trying to return, even to the
point of arranging for a friend to live in his former apartment as, in effect, a place-
holder for him. Moreover, Mr. Salvattera plans to reassume his position as
3
As Justice Ginsburg memorably observed in her dissent in Shelby County
v. Holder, ending a protective measure “when it has worked and is continuing to
work . . . is like throwing away your umbrella in a rainstorm because you are not
getting wet.” 570 U.S. 529, 590 (2013) (Ginsburg, J., dissenting). This analogy is
particularly apt in the CPO context, as many abusers “closely monitor a protection
order’s expiration date and resume contact, harassment, stalking, or violence . . .
upon the order’s expiration.” Jane K. Stoever, Enjoining Abuse: The Case for
Indefinite Domestic Violence Protection Orders, 67 VAND. L. REV. 1015, 1087-88
(2014); see also id. at 1024-26 (summarizing research showing that “past domestic
violence is the best predictor of future abuse;” “domestic violence survivors face
the greatest risk of acute violence and lethality during the actual separation from an
abusive partner and the ensuing years;” and “continued abuse can happen over
lengthy periods of time with prolonged gaps between incidents”). By suggesting
that events during the year in which the CPO is in effect may be “particularly
probative of what is likely to occur in the coming year,” ante at 33, my colleagues
invite, illogically, further future reliance on the cessation of harm as evidence that
it will not recur.
53
building manager, which (notwithstanding his facially perplexing and unexplained
testimony that someone else would be assigned responsibility for any maintenance
work on Ms. Ramirez’s apartment) would renew his power and authority over Ms.
Ramirez and his ability to surveil her without her knowledge. His insistence on
returning despite the effect it will have on her shows disregard for Ms. Ramirez’s
welfare and the anguish his presence will cause her to suffer. In my opinion, all
this clearly adds up to establish a cognizable danger that Mr. Salvattera will
sexually assault, threaten, or harass Ms. Ramirez again if given the chance; and I
think any reasonable person in her position would fear it greatly. I fail to see any
substantial evidence dispelling that danger or showing that Mr. Salvattera does not
pose a continuing criminal threat to Ms. Ramirez’s health and safety. It is no
answer to say she can avoid the danger by fleeing the premises; the entire point of
a CPO is to “safeguard [a victim’s] safety and peace of mind,” 4 not to make things
worse by putting the burden on the victim of abuse to disrupt her life to protect
herself.
The trial court’s “balance-of-harms” ruling also strikes me as—to put it
bluntly—clearly out of balance. Because the judge was so confident Mr.
4
Robinson v. Robinson, 886 A.2d 78, 87 (D.C. 2005).
54
Salvattera would not commit another offense against Ms. Ramirez, the judge’s
balancing entirely disregarded what I take to be a real and substantial risk of future
criminal harassment. But even so, the judge fully credited Ms. Ramirez’s
testimony that every time she sees Mr. Salvattera, she begins to relive what he did
to her, and the judge found that she “would suffer extreme emotional distress upon
encountering” him in the future at her building. The judge concluded that the
likely consequences of terminating the CPO for Ms. Ramirez—terror and mental
distress so grave as to threaten her mental health and wellbeing and force her and
her children to vacate their home of many years—amount to serious and
irreparable injury. Extending the CPO would inflict no comparable harm on Mr.
Salvattera. The record shows that Mr. Salvattera is both housed and self-
employed, albeit not where and how he would like. Continuation of the CPO does
no more than prevent him from returning to a rental apartment and a position as
building manager that he has not occupied or held in years; it does not deprive him
of any existing property interest or employment, nor does it prevent him from
living and working anywhere else. 5
5
Cf. Araya v. Keleta, 31 A.3d 78, 81 (D.C. 2011) (“[T]he Intrafamily
Offenses Act ‘clearly envisions allowing safety concerns to trump property
rights[,]’ which serve ‘as only one factor in the totality of circumstances.’”
(citations omitted)).
55
In my view, it is not only inequitable, it is manifestly unjust to put a sexual
assault victim to the choice of giving up her home or remaining to be re-
traumatized by the renewed presence of the man who attacked her, merely to
accommodate his personal interest in being able to live and work virtually by her
side. I do not deny the adverse consequences to Mr. Salvattera of losing his
apartment and job as building manager. The trial court found he has not had
steady work and that his health problems have worsened due, in part, to his current
living conditions. If those misfortunes can be alleviated without harming Ms.
Ramirez, that would be desirable. But Mr. Salvattera’s misfortunes are the
consequences of his own wrongful actions and Ms. Ramirez’s continuing mental
distress over them. It is unjust to relieve him of those consequences at his victim’s
anguished expense.
II.
The facts of this case dramatically demonstrate there may be compelling
reasons to extend a CPO to protect a petitioner from serious harm other than the
likelihood that the respondent will commit another crime against the petitioner.
Those other reasons, displayed in this case, include protecting the petitioner from
re-traumatization or the respondent’s exacerbation of the original criminal injury,
56
and aiding her rehabilitation and recovery from its sequelae. As these other
reasons are “consistent with the underlying [remedial] purpose of the Intrafamily
Offenses Act,” 6 they may by themselves constitute “good cause” within the
meaning of D.C. Code § 16-1005(d) for extending a CPO. The majority opinion
advances no persuasive reason to hold otherwise.
The issue before us is one of statutory interpretation, and it is imperative to
be clear about the policy of the IFA and the spirit in which we are obliged to
construe it. This is legislation “designed to counteract the abuse and exploitation”
of vulnerable people, typically (but not exclusively) “women and children.” 7 Over
the past four decades, the Council has progressively amended the Act to broaden
its coverage and ensure that it provides “truly effective remedies” for those in need
of them. 8 The IFA’s protections now are equally available to victims of domestic
violence and (as in the present case) to victims of stalking, sexual assault, or sexual
6
Murphy v. Okeke, 951 A.2d 783, 789-90 (D.C. 2008).
7
Cruz-Foster v. Foster, 597 A.2d 927, 931 (D.C. 1991) (emphasis added).
8
D.C. Council, Comm. on the Judiciary, Report on the Intrafamily Offenses
Amendment Act of 1982, Bill 4-195 at 10 (May 12, 1982) (hereinafter, “Judiciary
Committee Report”); see also Powell v. Powell, 547 A.2d 973, 974 (D.C. 1988).
57
abuse committed outside the domestic context. 9 Furthermore, “the statutory
language excludes any notion that physical violence, or the threat thereof, [is] the
only harm that the Act [is] designed to address.” 10 The Act also seeks to prevent
and remediate the harms caused by “emotional violence,” 11 which an abuser may
continue to inflict and exacerbate just by persisting in being an unwanted presence
in his recovering victim’s life.
Because “[t]he paramount consideration concerning this legislation is that it
is remedial,” 12 and “the plain intent of the legislature was an expansive reading of
the Act,” 13 we repeatedly have emphasized that “the Act must be liberally
9
See D.C. Code § 16-1001(12) (“‘Petitioner’ means any person who
alleges, or for whom is alleged, that he or she is the victim of interpersonal,
intimate partner, or intrafamily violence, stalking, sexual assault, or sexual
abuse.”); A.R. v. F.C., 33 A.3d 403, 408 (D.C. 2011) (“[T]here now are two types
of petitioners who may seek a civil protection order: alleged victims of
‘interpersonal, intimate partner, or intrafamily violence’ and alleged victims of
‘stalking, sexual assault, or sexual abuse.’”).
10
Richardson v. Easterling, 878 A.2d 1212, 1217 n.6 (D.C. 2005).
11
Id. (quoting Judiciary Committee Report at 1).
12
Cruz-Foster, 597 A.2d at 929 (citation omitted).
13
Powell, 547 A.2d at 974.
58
construed in furtherance of its remedial purpose.” 14 This court therefore has
understood that “we may not read into the Act limitations or restrictions which it
does not contain.” 15
Guided by these settled principles in interpreting the “good cause”
requirement of § 16-1005(d), we must reject the majority’s definition of the term,
for that definition would import into the IFA by judicial fiat a restriction on the
availability of CPOs that would frustrate rather than further the remedial purposes
of the Act. On its face, the IFA nowhere requires a CPO petitioner to show, or the
court to find, a “cognizable danger” (or indeed, any degree of likelihood) that the
respondent will commit another crime against her. This is a potentially
burdensome additional proof requirement to impose on (usually disadvantaged and
pro se) victims of past abuse. The IFA conditions the initial issuance of a CPO
only on a finding of a past intrafamily offense. While that almost always does
raise the specter of possible future offenses, the statute does not burden petitioners
with a separate requirement to prove their likelihood to the satisfaction of the trier
14
Cruz-Foster, 597 A.2d at 929; see also, e.g., Maldonado v. Maldonado,
631 A.2d 40, 42 (D.C. 1993) (“The Intrafamily Offenses Act is a remedial statute
and as such should be liberally construed for the benefit of the class it is intended
to protect.”).
15
Richardson, 878 A.2d at 1217.
59
of fact in order to receive the protections of a CPO. D.C. Code § 16-1005(c) does
not require the court to make that determination for a CPO to issue, and
§ 16-1005(d) does not purport to require it for a CPO to be extended. 16
A clear and compelling reason the IFA does not condition the issuance or
extension of CPOs on proof of future dangerousness in all cases is that CPOs are
meant not just to protect petitioners from future violence and abuse, but also to
serve critically important rehabilitative goals, like mitigating the injurious
emotional and other effects of past abuse and helping petitioners to recover from
them. 17 To accomplish their multiple purposes, “[t]rial courts are granted broad
16
The majority opinion effectively concedes this point when it states that
the statutorily required finding of a past criminal offense “functions as a
determination” that there is a cognizable danger the respondent will commit
another criminal offense against the petitioner if the CPO is not issued. Ante at 29.
If the inquiries thus collapse into one, and the finding of a past crime equates to a
finding of cognizable future dangerousness, the majority opinion fails to explain
why this “functional” equivalency it perceives does not apply when the petitioner
requests that the CPO be extended.
17
See, e.g., Holmon v. District of Columbia, 202 A.3d 512, 522 (D.C. 2019)
(“A CPO is designed to, among other things, protect a petitioner from emotional
violence, see Richardson v. Easterling, 878 A.2d 1212, 1217 n.6 (D.C. 2005), and
provide the petitioner ‘a measure of peace of mind,’ Maldonado v. Maldonado,
631 A.2d 40, 43 (D.C. 1993).”); Robinson, 886 A.2d at 87 (“an important factor in
issuing a CPO is that it ‘provides a measure of peace of mind for those for whose
benefit it was issued’”) (quoting Maldonado); Salvattera, 111 A.3d at 1038 (same);
see also Stoever, at 1043, 1064-65 & n.271, 1066-67 & nn.285-86 (describing the
CPO as a “survivor-initiated remedy [that] was intended to be autonomy
(…continued)
60
discretion when implementing the remedial measures of the Intrafamily Offenses
Act” 18 and may order the respondent to perform or refrain from a wide range of
actions “as may be appropriate to the effective resolution of the matter.” 19 That
resolution is not necessarily accomplished just because the respondent is unlikely
to commit another crime against the petitioner.
(…continued)
enhancing” and collecting research regarding the mental health benefits of CPOs
for petitioners); Caroline Vaile Wright & Dawn M. Johnson, Encouraging Legal
Help Seeking for Victims of Intimate Partner Violence: The Therapeutic Effects of
the Civil Protection Order, 25 J. TRAUMA STRESS 675, 675-81 (2012) (comparing
PTSD and depressive symptomology of intimate partner violence victims who
obtained a CPO and those who did not, finding that victims who obtained a CPO
experienced greater reductions of both types of symptoms, and noting prior
research showing that civil legal interventions for victims correlated with
improvements in mental health); Judith A. Smith, Battered Non-Wives and
Unequal Protection-Order Coverage: A Call for Reform, 23 YALE L. & POL’Y
REV. 93, 120-21 (2005) (recognizing that the “comprehensive” remedies available
to petitioners seeking CPOs give victims of sexual abuse or intimate partner
violence “control over what happens to [them]” and that “this type of
empowerment affects a victim’s sense of well-being”); Ilene Seidman & Susan
Vickers, The Second Wave: An Agenda for the Next Thirty Years of Rape Law
Reform, 38 SUFFOLK U. L. REV. 467, 473, 476-78 (2005) (identifying civil
protective orders as one of eight “core areas of civil legal needs that affect the
well-being and recovery of rape victims”).
18
Araya, 31 A.3d at 81 n.5.
19
D.C. Code § 16-1005(c)(11).
61
Since a CPO may be designed not only to prevent the respondent from
committing future offenses, but also to remediate the ill effects on the petitioner of
the respondent’s past offenses, it would be quite contrary to the “paramount
consideration” of the Act’s construction—and patently illogical—to interpret
“good cause” for the extension of a CPO as always requiring a finding of a danger
that the respondent will commit a future offense. Such a condition would thwart
the remedial purposes of the Act, because even if an extension is not needed to
deter the respondent from committing a future offense against the petitioner, there
still may be strong reasons to extend the CPO to require the respondent to fulfill
other conditions of the CPO and continue fostering, rather than impeding, the
petitioner’s ongoing rehabilitation.
Unsurprisingly, the majority’s definition of “good cause” is also textually
inapt. “Statutory language must be read in context and a phrase gathers meaning
from the words around it.” 20 Section 16-1005(d) states that the court may “extend,
rescind, or modify the order for good cause shown.” Thus, the term “good cause”
must be given a broad enough definition that it can apply to rescinding and
modifying a CPO as well as extending it. But requiring “a cognizable danger that
20
Jones v. United States, 527 U.S. 373, 389 (1999) (internal quotation
marks omitted).
62
the respondent will commit or threaten to commit a criminal offense against the
petitioner” is only a particular possible application of the term “good cause” to a
CPO extension; the term cannot possibly have the same meaning or require the
same showing for rescissions and modifications of CPOs. In applying the same
term to all three actions, the Council must have had something more general in
mind – namely, giving the parties and the court the power and flexibility, in accord
with the purposes of the Act, to seek remedies appropriate to their needs, both
deterrent and rehabilitative.
And this view of the term “good cause,” unlike the majority’s limiting
definition, comports with the common understanding that the term “generally
signifies a sound basis or legitimate need to take judicial action.” 21 Because the
term by itself is somewhat indefinite, where it is used in a statute it is interpreted
21
In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987);
Jacobs v. Jacobs, 167 A.D.3d 890, 890 (N.Y. App. Div. 2018); see also Cause,
BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “good cause” as “a legally
sufficient reason”); Safeway Stores, Inc. v. Reynolds, 176 F.2d 476, 477 (D.C. Cir.
1949) (Good cause shown is “not an idle phrase without significance . . . [it]
contemplates an exercise of judgment by the court, not a mere automatic granting
of the motion. The Court’s judgment is to be moved by a demonstration by the
moving party of its need[.]”) (citations and quotations omitted).
63
“in context by considering the statute as a whole.” 22 “In a statutory context” it is
“focused on real, albeit sometimes difficult to discern, legal standards: the
legislature’s view of what is ‘good,’ ‘sufficient,’ or ‘reasonable.’” 23 In this case,
the legislature’s view is not difficult to discern. It is plain, and in the past this
court has recognized that it is plain. The relief provided under the Act is
“unambiguously” intended to be not just deterrent, but also “remedial” to
“counteract,” not merely prevent, “abuse and exploitation.” 24
Nor are general equitable principles governing injunctions of the kind
enunciated in W.T. Grant, or in the majority opinion, ante at 31-32, necessarily
apropos merely because CPOs are injunctive in nature. The CPO is a creature of
statute. Once a legislature adopts a statutory framework for an injunction, the
standard for its issuance is a matter of statutory interpretation and not only of
general equitable principles. 25 This court recognized this principle in Cruz-Foster
22
MacPherson v. Weiner, 959 A.2d 206, 210 (N.H. 2008) (interpreting the
meaning of “good cause” to extend a protective order).
23
State v. Johnson, 116 P.3d 879, 888 (Or. 2005) (emphasis in original).
24
Cruz-Foster, 597 A.2d at 931.
25
See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 193-94 (1978); Dobbs’
Law of Remedies § 2.10 (2d. Ed 1993) (“The statute remains the best beginning
(…continued)
64
when it stated that, while under general equitable principles, “injunctive relief is to
be granted sparingly,” that is not the case under the IFA; rather, we said, because
the Act “was designed to counteract the abuse and exploitation of women and
children,” and “[g]iven the Council’s unambiguously stated preference for a
generous construction of the remedial provisions of the Act,” judges must award
injunctive relief under the Act according to “the spirit of the law and not
begrudgingly.” 26
It follows that once a petitioner has satisfied the standard for the issuance of
a CPO, she does not need to show a danger that the respondent will commit
another crime against her to be entitled to an extension of the CPO based on a
showing that its remedial measures are still warranted to protect her from other
harms attributable to the respondent and to ensure her wellbeing. And no case of
this court has held or implied otherwise; contrary to the majority opinion, we have
never held that a “cognizable danger of a recurrent violation” by the respondent is
the only danger sufficient to establish good cause to extend a CPO.
(…continued)
place for identifying the rights and the permissible range of discretion in
administering remedies.”).
26
Cruz-Foster, 597 A.2d at 931 (quotation marks and citations omitted).
65
Cruz-Foster is the only case involving the IFA in which the “cognizable
danger” language even appears. There it was part of a quoted passage from the
Supreme Court’s opinion in United States v. W.T. Grant Co. stating the general
equitable standard for issuing injunctions that serve the purpose of prohibiting
defendants from violating the law (which in W.T. Grant was the antitrust
prohibition against interlocking directorates). 27 But Cruz-Foster did not hold that
the “cognizable danger of a recurrent violation” standard applies whenever a
petitioner seeks to extend a CPO, regardless of its purposes; nor did the court cite
W.T. Grant for such a sweeping proposition. Neither W.T. Grant nor Cruz-Foster
considered whether the recurrent violation standard applies when a petitioner
requests injunctive relief for the purpose of requiring a respondent to mitigate,
remedy, or refrain from exacerbating a past criminal violation (as distinct from the
purpose of prohibiting future law violations). This question simply was not
presented or decided in Cruz-Foster. 28
27
See Cruz-Foster, 597 A.2d at 930 (quoting United States v. W.T. Grant
Co., 345 U.S. 629, 633 (1953)).
28
The question was not presented in Cruz-Foster because Ms. Cruz-Foster
was seeking continued protection from the respondent’s threatened violence; she
was not trying to justify extension of the CPO on an alternative, remedial ground.
66
Ms. Cruz-Foster’s appeal presented the distinctly different question of how
to allocate the burden of proof—whether the burden is on the petitioner to show
good cause for extending a CPO, or on the respondent to show good cause for
letting the CPO expire. On that issue, the court cited W.T. Grant for its holding
that the burden is on the moving party to show the need for an injunction.
Adhering to that principle, the court held that an extension of a CPO is an award of
injunctive relief beyond that originally ordered, and the petitioner therefore bears
the burden of showing good cause for an extension of a CPO by a preponderance
of the evidence. 29 This was not a holding as to the meaning of “good cause” for all
CPO extensions.
As the author of the opinion in Cruz-Foster warned in another decision of
this court, “[t]he rule of stare decisis is never properly invoked unless in the
decision put forward as precedent the judicial mind has been applied to and passed
upon the precise question.” 30 Cruz-Foster therefore cannot be read as precedent
supporting the majority’s restrictive and textually-unmoored limitation of “good
29
See id.
30
Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994).
67
cause” to only one specific harm the IFA was intended to address, a recurrent
criminal offense against the petitioner.
Cruz-Foster also held that, in addition to (1) assessing whether the petitioner
has shown a need for extending a CPO consistent with the purposes of the IFA in
light of the totality of the circumstances (the “entire mosaic”), (2) “it is necessary
to consider whether the ‘balance of harms’ favors the grant of [the petitioner’s]
application.” 31 Our later cases addressing CPO extensions, Maldonado v.
Maldonado and Robinson v. Robinson, followed Cruz-Foster’s teaching and
engaged in that analysis. Neither case required a showing of a cognizable danger
(or any likelihood) that the respondent would commit another criminal offense
against the petitioner if the CPO extension were denied. In fact, neither case even
mentioned a “cognizable danger of a recurrent violation” test.
Maldonado is particularly instructive with respect to the question now
before us. In that case, we concluded the trial court had abused its discretion by
denying an extension of a CPO against the petitioner’s husband solely because he
was incarcerated and unlikely to be a danger to her. In so holding, we did not
31
Cruz-Foster, 597 A.2d at 930.
68
apply a cognizable danger or comparable test based on the likelihood of a recurrent
criminal offense—in fact, we did not dispute the unlikelihood of such a recurrence
while the husband was in prison and pointed out only that his incarceration did not
“necessarily” or with “certainty” eliminate the “possibility” that he somehow still
could find ways to threaten or harass the petitioner. 32 Rather, we said that the
husband’s incarceration could “not be the sole determina[nt] as to whether the
CPO should or should not be extended.” 33 We explained that the original CPO
addressed other factors besides the petitioner’s safety from her husband; notably, it
gave the petitioner custody of the children and ordered the husband to make child
support payments. In deciding whether to extend the CPO, we held, the judge was
required to consider how its expiration would affect the children’s custody and
support, not just the petitioner’s safety. Each was “a factor that must be taken into
account, along with others, in making that determination [whether the CPO should
32
Maldonado, 631 A.2d at 42-43; see also id. at 45 (Schwelb, J.,
concurring) (doubting that the “hypothetical” possibilities posited by the majority,
such as Mr. Maldonado’s escape from prison, would be sufficient to warrant
extension of the CPO). The majority opinion misreads our opinion in Maldonado
when it states, ante at 25-26, that we held the trial court “abused its discretion in
finding . . . no cognizable danger of a recurrent violation.” Cruz-Foster made it
clear that a “cognizable danger” is “more than the mere possibility” of a recurrent
violation. 597 A.2d at 930 (quoting W.T. Grant, 345 U.S. at 633). “More than the
mere possibility” was not shown in Maldonado.
33
Id. at 42.
 69
be extended].” 34 In short, Maldonado demonstrates that a judge does not
necessarily need to find a “cognizable danger of a recurrent violation” to grant a
petitioner’s request for an extension of a CPO because the request may be justified
in light of the other harms the CPO was meant to avert (and the “balance of harms”
that also must be considered). 35
In sum, the majority’s new judge-created rule that a court cannot extend a
CPO unless the petitioner shows she needs it for protection from further criminal
abuse is objectionable for the following principal reasons: (1) the rule ignores the
serious non-criminal harms that may result from the expiration of a CPO—harms
that the IFA is meant to forestall and redress, including (as this case illustrates) the
deprivation and undoing of specific relief ordered by the CPO and the re-
34
Id. at 44.
35
Robinson is not on point at all, and thus lends no support to the majority
holding in this case. There was no issue in Robinson about whether extension of a
CPO depended on a finding of a danger of future violence. There was such a
finding in that case; that it did or could support the extension requested in that case
does not mean such a finding always must be made to support an extension of a
CPO. Thus we did not, as the majority contends, hold, “in essence, . . . that the
trial court had properly found a cognizable danger of a recurrent violation and
therefore good cause to extend the CPO.” Ante at 27. Rather, we held that the
court had not properly weighed the petitioner’s safety concerns against the
respondent’s property rights when the court refused to prevent the respondent from
occupying a residence next door to the petitioner. 886 A.2d at 86-87. This was a
“balance-of-harms” question.
70
traumatization of the petitioner by future unwanted close and continuing contact
with her abuser; (2) the rule has no grounding in either the text or the legislative
policy of the IFA, and instead conflicts with the IFA’s “good cause” standard and
thwarts its “paramount” remedial purposes; and (3) the rule is not required by, and
in fact is inconsistent with, this court’s caselaw. I certainly agree that, in order to
obtain an extension of a CPO over the respondent’s objection, a petitioner must
show a legitimate need for it—a danger that some harm, of the sort the IFA is
designed to prevent or alleviate, will result if the CPO is allowed to expire. The
danger of a recurrence of criminal abuse is one such harm, of course. But it is not
the only such harm, and I see no justification for ignoring that fact and thereby
jeopardizing the wellbeing of abused and vulnerable petitioners.
The majority opinion does not advance any persuasive rationale in
justification. The majority seems to think this court’s past guidance has left trial
judges unable to exercise their discretion appropriately in considering whether
good cause exists to extend a CPO. If that is what my colleagues believe, they
have not substantiated it, and I rather think that such a view gives too little credit to
our cases and the capability of our trial judges. In point of fact, cases like Cruz-
Foster, Maldonado, and Robinson have furnished considerable guidance and a
framework in which judges are directed to make their determinations of good
71
cause—instructing judges, for example, that the burden is on the petitioner to show
a valid need for extension of the CPO’s benefits and protections by a
preponderance of the evidence; that the judge must balance the harm to the
petitioner from allowing the CPO to expire against the harm to the respondent from
extending it; that a court must consider the totality of the circumstances (the “entire
mosaic”), and in particular the history of the case and the respondent’s past
conduct (which “is important evidence – perhaps the most important – in
predicting his probable future conduct” 36); that in addition to deterring respondents
from physically injuring and harassing petitioners, CPOs serve the “important
purpose” of affording petitioners “peace of mind” and alleviating their emotional
distress; that safety concerns trump property rights; that courts may not read
limitations or restrictions into the IFA that it does not expressly contain; and so on.
The framework, constructed over decades, does not lack for rigor; it is sufficient to
guide judges to extend CPOs only when the petitioner shows that continued
prevention or remediation is warranted and fair, and it is far from the slippery slope
the majority inexplicably seems to fear, in which “the original CPO is converted
into a lifetime injunction renewable in one-year increments” based only on
36
Cruz-Foster, 597 A.2d at 930.
72
evidence of the initial offense. Ante at 30. 37 Throughout the law, we entrust
judges to exercise their discretion under “good cause” standards that are far less
concrete and developed; and, of course, with the IFA the legislature
“unambiguously” intended judges to exercise their discretion to give “a generous
construction of the remedial provisions of the Act.” 38
But even assuming more guidance might be desirable to enable trial judges
to perform their duties when deliberating whether to extend CPOs, the court today
gives the wrong guidance. There is simply no warrant for so limiting the definition
of “good cause” that only a cognizable danger of a recurrent criminal offense can
establish it. This is a harmful and illogical development that will burden and
jeopardize those in need of the IFA’s protections.
I respectfully dissent.
37
The majority does not cite a single instance of such an automatic renewal
or any case in which a CPO extension raised a due process concern—the present
case is certainly not one of them—and I am unaware of any case fitting that
description.
38
Cruz-Foster, 597 A.2d at 931.