In Re Parentage Of Twj & Ibj Andrea Anthony, Resp. v. Awan Johnson, App. , 193 Wash. App. 1 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of: NO. 73207-2-1
T.W.J, and I.B.J.
Minor Children,
CJ i
ANDREA ANTHONY,
Respondent, V?
DIVISION ONE CO
and
AWAN JOHNSON, UNPUBLISHED OPINION
Appellant. FILED: January 25, 2016
Lau, J. — Awan Johnson appeals the trial court's order granting Andrea
Anthony's motion for a domestic violence protection order. He contends evidence that
he made a threat to kill Anthony alone is insufficient to support the trial court's
conclusion that he represents a credible threat to Anthony's safety. We disagree.
Because the record supports the trial court's conclusion that Johnson's threat inflicted a
reasonable fear of physical harm, the trial court did not abuse its discretion when it
granted Anthony's motion for an order of protection. We affirm.
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FACTS
Awan Johnson and Andrea Anthony dated for approximately four years. They
have two children, T.J. and I.J., who at the time of the proceedings belowwere ages 3
and 2. G.R., age 12, is Johnson's daughter from a previous relationship. Johnson "was
emotionally and verbally abusive" throughout his relationship with Anthony. Clerk's
Papers (CP) at 45. Anthony left the relationship "when the abuse started to become
physical." CP at 45. In July 2014, Anthony and Johnson agreed to a parenting plan,
which was entered in October 2014.
On November 15, 2014, Anthony received a text message from Johnson that I.J.
was experiencing breathing problems and he called for an ambulance. Anthony went
over to Johnson's residence and discovered both I.J. and T.J. "had no pants on." CP at
486. Anthony also learned that G.R. had been there earlier that day. While the
paramedics examined I.J., Johnson insisted that Anthony leave and called the police.
When the police arrived, they instructed Anthony to take I.J. and T.J. to the lobby of
Johnson's building. Anthony left with I.J. and T.J.
After this incident, Anthony noticed a decline in T.J.'s behavior. T.J. became
"angry and defiant." CP at 487. Daycare workers informed Anthony that T.J. exhibited
increased behavior problems at school, including spitting on teachers, and handling his
own feces. Some of T.J.'s behavioral problems were sexual in nature. For example, on
one occasion he asked his younger sister I.J. to touch his genitals. Eventually, T.J. told
Anthony that G.R. had sexually molested him. Child therapist Suzanne McCallum later
determined that T.J. likely suffers from posttraumatic stress disorder and "[h]is
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engagement in the reported sexualized play attempts suggest sexual abuse and/or
exposure to inappropriate, very specific sexual material." CP at 633.
On December 12, 2014, Anthony filed a petition to modify the parenting plan, a
motion for an ex parte restraining order preventing Johnson from allowing G.R. to
contact T.J. and I.J. and other motions for temporary relief. The court entered an ex
parte restraining order and an order to show cause, limiting Johnson's visitation to
supervised visits.
The trial court scheduled a hearing for January 28, 2015. On January 21,
Johnson's attorney sent Anthony's attorney an e-mail stating Johnson terminated her
representation and threatened to kill Anthony:
As of 7:30a.m. [sic] yesterday Awan Johnson terminated me, hung
up the telephone and removed all authority I have to act on his behalf. He
further will not answer the phone.
FURTHER AND PLEASE BE ADVISED, I called you several times
today to warn you on behalf of your client that a conditional threat to kill
was made by my former disgruntled client indicating that if he "gets
screwed" which he may interpret as any restrictions on his custodial rights,
he is going to "Kill Andrea [Anthony]". He repeated this and variations,
perhaps in anger more than once.
CP at 650. Anthony sought and obtained a temporary domestic violence order of
protection the same day. The trial court consolidated the hearing on this order with
Anthony's other motions for temporary orders and to modify the parenting plan.
On February 10, 2015, the court heard argument on Anthony's motions. The
court found adequate cause to proceed to trial and issued temporary orders allowing
Johnson the same residential time provided in the parenting plan conditioned on no
contact by G.R. with T.J. and I.J. The court also issued a one-year domestic violence
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protection order preventing Johnson from contacting Anthony until February 2016.
Johnson appeals the trial court's domestic violence protection order only.
ANALYSIS
Standard of Review
Johnson incorrectly asserts that this case presents a legal question warranting
de novo review. It does not. A trial court's decision to grant a protection order is a
matter of judicial discretion. "Where the decision or order of the trial court is a matter of
discretion, it will not be disturbed on review except on a clear showing of abuse of
discretion, that is, discretion manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons." State ex re. Carroll v. Junker. 79 Wash. 2d 12, 26, 482
P.2d 775 (1971).
Protection Order
Johnson argues the trial court erred when it granted Anthony's motion for a
domestic violence protection order because evidence that he made a threat to kill
Anthony, on its own, is insufficient to show that "he would likely carry out the threat." Br.
of App. at 7. We conclude the trial court did not abuse its discretion when it found that
Johnson "represents a credible threat" to Anthony. CP at 413.
The Washington Domestic Violence Prevention Act (DVPA) provides for an
action to obtain "an order of protection in cases of domestic violence." RCW 26.50.030.
The DVPA defines domestic violence as "[p]hysical harm, bodily injury, assault, or the
infliction of fear of imminent physical harm, bodily injury or assault, between family or
household members." RCW 26.50.010(1). A petitioner seeking a domestic violence
protection order "shall allege the existence of domestic violence, and shall be
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accompanied by an affidavit made under oath stating the specific facts and
circumstances from which relief is sought." RCW 26.50.030(1).
The trial court here primarily relied on the e-mail from Johnson's attorney warning
Anthony of Johnson's threat to kill her. The trial court found the threat credible because
an attorney's disclosure of confidential communications is extraordinary:
Nevertheless, it's an extraordinary thing. The one thing that all
lawyers get taught in law school and learn in their bar exam, regardless of
what state they're in, is the sanctity of the attorney/client relationship and
the need to not disclose any confidences or secrets, except in
extraordinary circumstances; and the one exception that's recognized in
this state and California, I happen to know, is where the client makes a
statement threatening harm, then the attorney has the right to disclose
that and may even have the duty to disclose that.
So I have to say that it would be really an extraordinary thing for an
attorney to claim that their client—falsely claim that their client had
threated to harm the other party. I mean, that's—really would be
extraordinary and remarkable.
And I have to go with—since I don't know her, I have to go with the
assumption that she was reporting what she had heard; and for that
reason, I'm going to go ahead and enter the protection order.
Report of Proceedings (RP) (Feb. 10, 2015) at 40-41. The trial court properly relied on
this evidence when it determined that Johnson "represents a credible threat." CP at
413. See ER 1101(c)(4) (The Rules of Evidence, including hearsay, do not apply in
protection order proceedings under RCW 26.50). Accordingly, the trial court reasonably
concluded that the threat constitutes domestic violence, defined as "the infliction of fear
of imminent physical harm, bodily injury or assault." RCW 26.50.010(1). Granting
Anthony's motion for a domestic violence protection order was not an abuse of
discretion.
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Johnson argues the trial court could not, as a matter of law, find his threat
credible absent additional evidence. According to Johnson, "[o]ther than the statement
itself, there is no other evidence on the basis of which a court could conclude that he
would likely carry it out in the absence of an order." Br. of Appellant at 8. But Johnson
cites no authority supporting this proposition. See DeHeer v. Seattle Post-lntelliaencer.
60 Wash. 2d 122, 126, 372 P.2d 193 (1962) ("Where no authorities are cited in support of
a proposition, the court is not required to search out authorities, but may assume that
counsel, after diligent search, has found none."). Essentially, Johnson asks us to
reevaluate the evidence considered by the trial court and arrive at the opposite
conclusion. But it is the trial court's role to weigh the persuasiveness of the evidence,
and we typically will not disturb factual determinations on appeal. See Greene v.
Greene, 97 Wash. App. 708, 714, 986 P.2d 144 (1999) ("We will not substitute our
judgment for the trial court's, weigh the evidence, or adjudge witness credibility.")
Further, we note that other evidence in the record supports the trial court's
conclusion that Johnson's threat was credible.1 Anthony included with her petition for
an order of protection a declaration containing allegations of past instances of domestic
violence:
The reason I decided to leave Awan [Johnson] is because the
verbal arguments started to become physical. On two occasions, each
while I was holding a child, he came up and poked his finger hard in the
1Johnson argues that other evidence of domestic violence did not factor into the
trial court's decision. Indeed, neither the trial court's written order nor its comments
during the colloquy reference any evidence other than Johnson's threat to kill Anthony.
Regardless, we may affirm the trial court on any basis supported by the record. See
Hoflin v. City of Ocean Shores. 121 Wash. 2d 113, 134, 847 P.2d 428 (1993) (We will
affirm the trial court if it reached the right result, albeit for the wrong reason.)
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side of my head. On another occasion when I was holding [T.J.] and he
was holding [I.J.], he was yelling very close to my face, and I pushed him
back a little. He smacked my arm and said, "You hit me first." The last
was when he brought [G.R.] over after swearing at me on the phone with
her in the car. He walked in the room while I was putting the kids to bed
for a nap and told me not to "fucking look at him." I was typing notes in my
phone and [he] said he was going to throw it off the deck and grabbed it. I
held on when he grabbed it and, during the process, my finger was cut
and bruised. I called 911 and then hung up.
... I was afraid the fighting would continue and one of the children
would get caught in the middle and hurt. That is why our relationship
ended.
There have been many other instances of verbal abuse. [Johnson]
has said to me, "Why don't you just go die" in front of the kids ... If he
doesn't agree with something I say, he will call me an "idiot" and tell me to
"shut the fuck up." He has told me he hates me in front of [T.J.] and called
me a "bitter bitch" in front of the children many times.
CP at 773-74. Anthony's declaration indicates that Johnson became particularly hostile
as the legal dispute regarding their children continued. For example, after Anthony
disclosed her witness list for the pending trial, Johnson sent her a text message stating,
"Fuck you. You are going to hurt yourself. Watch." CP at 776. Anthony stated in her
declaration that "I am scared that his hostility toward me has reached a new level and
that he may try to make good on his threat." CP at 741. She also recalled that during
their relationship Johnson "once told [her] that he visualized chopping off the head of his
ex-partner and mother of [G.R.]." CP at 740. Under these circumstances, the trial court
could have reasonably concluded that Johnson's threat was credible.
In his reply brief, Johnson argues that the facts here do not reasonably relate to
the fear of imminent harm, citing Freeman v. Freeman, 169 Wash. 2d 664, 676, 239 P.3d
557 (2010) ("the facts do not suggest Robin's fear of Rob is based on a reasonable
threat of imminent harm."). Freeman is distinguishable. First, Freeman involved a
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permanent protection order. Freeman. 169 Wash. 2d at 670-72. To grant a protection
order exceeding one year, the court must make an additional finding, "the respondent is
likely to resume acts of domestic violence against the petitioner. .. when the order
expires." RCW 26.50.060(2). Here, Anthony was not required to show that Johnson
would "likely" resume acts of domestic violence after the order expired because she did
not seek an order exceeding one year. Further, the Freeman court concluded the
protected party failed to show a reasonable fear of imminent harm because the parties
had no contact for ten years and the respondent had never violated the protection order
already in place. Freeman. 169 Wash. 2d at 675. In contrast, the record here shows
repeated conflict and hostility between the parties including Johnson's death threat.
The record amply supports the trial court's conclusion that Johnson represented a
credible threat. He failed to show that the trial court's decision was "exercised on
untenable grounds, or for untenable reasons." Junker. 79 Wash. 2d at 26.
Attorney Fees
Anthony seeks attorney fees under the DVPA's attorney fees provision and RAP
18.1. See RCW 26.50.060(1 )(g), RAP 18.1. In reply, Johnson does not dispute
Anthony's request for fees or the fee affidavit she submitted in support. We therefore
grant Anthony's request for attorney fees under RCW 26.50.060(1) and conditioned on
her compliance with RAP 18.1. See, e.g.. Freeman. 169 Wash. 2d at 676 (acknowledging
that the DVPA authorizes an award of reasonable attorney fees incurred by a protected
party seeking an order of protection).
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CONCLUSION
For the foregoing reasons, we affirm and award Anthony attorney fees subject to
compliance under RAP 18.1.
WE CONCUR:
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