Terry James v. Kondjeni Liyambo ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TERRY E. JAMES,
No. 79687-9-I
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
Appellant. FILED: February 24, 2020
SMITH, J. — A middle school student sent a story he wrote to several
fellow students who were specifically identified and featured in the story which
contained threats, violence, and sexual innuendo. The trial court issued a one-
year antiharassment protection order against K.L., the student who sent the
story. K.L. appeals, arguing that (1) the record and the court’s findings do not
support the order, (2) the court failed to consider certain factors set forth in
RCW 10.14.040(7), (3)the protection order was impermissibly based on
protected free speech, and (4) the provisions of the order are overly broad. We
affirm.
FACTS
On January 8, 2019, the father of 12-year-old M.J. petitioned for a
protection order on her behalf. He alleged that a month earlier, another seventh
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grade student, K.L., emailed a story he wrote to M.J. and four other classmates.1
M.J. did not read the story or forward the message to her parents. Her father
was told it was “disturbing” and that one aspect of the plot involved a specific
threat to shoot and kill M.J.
Once alerted about the incident, school officials contacted law
enforcement, temporarily suspended K.L., and conducted a risk assessment in
accordance with school district policy. The school determined that K.L. would be
allowed to return to school after the winter break, but changed K.L.’s schedule so
he would not have classes with the students identified in the story and made
arrangements so that staff could supervise him during the lunch period. Before
the end of the school break, although K.L. had been instructed by the school
principal not to contact any of the students to whom he sent the story, K.L. sent
M.J. a message via social media asking to talk to her. M.J.’s family requested
that a school staff member chaperone K.L. during passing periods and lunch.
The school indicated that it would be unable to accommodate the request due to
inadequate staffing. M.J.’s father stated that his daughter was afraid for her
safety and fearful of seeing K.L. or potentially having to interact with him. He
asked the court to prohibit K.L. from attending his daughter’s school.
On January 9, the day after M.J.’s father filed the petition, the court
entered a temporary protection order. The court’s order prohibited all direct,
indirect, and electronic contact between K.L. and M.J. The court also ordered
1 The record refers to the appellant by a nickname comprised of different
initials.
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that K.L. remain at least 100 feet from M.J. at school, unless escorted. The court
set the next hearing for January 22, 2019. On that date, M.J.’s father expressed
concerns because on three occasions after the court issued the temporary order,
K.L. was in “close proximity” to M.J., without an escort. The court reissued the
temporary order and altered the terms. In addition to the distance provision, the
court’s order required K.L. to be escorted by school personnel, or school
designated personnel, at all times. The court set the next hearing for February 5,
2019.2
At the time of the hearing, K.L. and M.J. were still attending the same
school, although there had been previous discussions between the families about
K.L. transferring to a different school.3 During the hearing, the court heard M.J.’s
father’s testimony and took a recess to read the story K.L. sent to M.J. and her
classmates.
The court determined that K.L.’s conduct constituted unlawful harassment
and entered a one-year protection order in accordance with the terms of the
temporary order issued on January 22, 2019. The court later denied K.L.’s
motion to modify the order. K.L. appeals.4
The court also ordered the appointment of a guardian ad litem (GAL) on
2
January 22. Although no GAL was appointed, attorneys employed by
TeamChild, a legal services provider for youth, subsequently appeared as
counsel for K.L.
~ The record indicates that K.L. subsequently transferred to a different
school.
~ M.J.’s father, the petitioner below, has not filed a brief in response to
K.L.’s appeal.
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ANALYSIS
Chapter 10.14 RCW grants trial courts in civil antiharassment proceedings
“broad discretion to grant such relief as the court deems proper.”
RCW 10.14.080(6). At a hearing for an antiharassment protection order, “if the
court finds by a preponderance of the evidence that unlawful harassment exists,
a civil antiharassment protection order shall issue prohibiting such unlawful
harassment.” RCW 10.14.080(3).
The determination of whether unlawful harassment exists, warranting an
order of protection, is largely controlled by statute. The statute defines “unlawful
harassment” to mean a “knowing and willful course of conduct directed at a
specific person which seriously alarms, annoys, harasses, or is detrimental to
such person, and which serves no legitimate or lawful purpose.”
RCW 10.14.020(2). A course of conduct is a “pattern of conduct” and must be of
a nature that “would cause a reasonable person to suffer substantial emotional
distress, and shall actually cause substantial emotional distress to the petitioner.”
RCW 10.14.020(1)-(2).
As occurred in this case, a parent or guardian may petition for a protection
order fora child. RCW 10.14.040(7). If both minors attend the same school, the
trial court may order the restrained party to attend a different school at his or her
family’s expense. RCW 10.14.040(7). In restraining a minor, the trial court must
consider a number of factors: (1) “the severity of the alleged offense,” (2) “any
continuing physical danger or emotional distress to the alleged victim,” and (3)
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“the expense, difficulty, and educational disruption that would be caused by a
transfer of the alleged offender to another school.” RCW 10.14.040(7).
Well-settled principles of law govern our review of K.L.’s appeal. This
court reviews the issuance of a harassment protection order for abuse of
discretion. Trummel v. Mitchell, 156 Wash. 2d 653, 668-69, 131 P.3d 305 (2006); In
re Vulnerable Adult Petition for Knight, 178 Wash. App. 929, 936, 317 P.3d 1068
(2014). A court abuses its discretion when it exercises such discretion on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79
Wash. 2d 12, 26, 482 P.2d 775 (1971).
The court’s findings are reviewed for substantial evidence. Knight, 178
Wash. App. at 936. “Substantial evidence” exists if the evidence is sufficient to
persuade a fair-minded rational person of the truth of the evidence. In re Estate
of Jones, 152 Wash. 2d 1, 8, 93 P.3d 147 (2004). Appellate courts do not find facts
and cannot substitute their view of the facts in the record for those of the trial
judge. Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 575, 343 P.2d 183
(1959).
K.L. contends that neither the record nor the court’s findings support the
protection order. In particular, K.L. argues that the court failed to make a
required “threshold finding” under RCW 10.14.040(7) that he had been
adjudicated or investigated for an offense against M.J. And since the petition
merely refers to a city of Redmond police report but does not attach the report,
he claims that the evidence would not support such a finding.
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But as explained, RCW 10.14.080(3) provides that the court shall issue a
protection order upon finding, by a preponderance of the evidence, the existence
of unlawful harassment. The protection order herein includes a finding that
“respondent committed unlawful harassment, as defined in RCW 10.14.080, and
was not acting pursuant to any statutory authority.” No authority supports K.L.’s
argument that this finding is insufficient because it is stated in “boilerplate form
language.” See Spence v. Kaminski, 103 Wash. App. 325, 332, 12 P.3d 1030
(2000) (rejecting claim that “prep rinted findings on a form are insufficient to
indicate the factual basis for the court’s conclusions” supporting protection order
under chapter 26.50 RCW). And to the extent K.L. now challenges the
sufficiency of the petition under RCW 10.14.040(7) on the basis that it does not
fully explain the nature of the police investigation conducted, he failed to object,
request further information, or otherwise raise the issue below. Any claim of
error is therefore waived. ~ RAP 2.5(a) (This court generally declines to
consider arguments raised for the first time on appeal.).
K.L. also suggests that the trial court erred by failing to make clear
findings specifying his course of conduct. He claims that the evidence is
insufficient to support a finding that his actions amount to a course of conduct
constituting harassment. The statute defines “course of conduct” as “a pattern of
conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose.” RCW 10.14.020(1).
The oral ruling reflects that the trial court considered and found all the
statutory elements, including a course of conduct. K.L. engaged in more than
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one act when he sent a story to multiple individuals. It is reasonable to infer that
his actions were largely directed at M.J. She is the only person identified in the
story by her full name, and as the trial court noted, the threats and innuendo
were directed specifically at her. The definition of course of conduct is broad
enough to include communications to third parties where the harassment is
“directed at” the alleged victim. See State v. Becklin, 163 Wash. 2d 519, 527-28,
182 P.3d 944 (2008) (stalking and harassment statutes broad enough to
encompass act of directing third parties to harass the victim). There was also
evidence that some weeks later, K.L. contacted M.J. directly, after he was
specifically instructed not to do so. Based on the record, the trial court did not
abuse its discretion in concluding that K.L. engaged in a course of conduct, or a
series of acts, “directed at” M.J. that evidenced a “continuity of purpose” to
harass her. See RCW 10.14.020(1)-(2).
K.L. next claims that the court abused its discretion when it refused to
consider evidence of educational disruption under RCW 10.14.040(7). After the
court ruled that the petitioner established unlawful harassment, K.L.’s counsel
asked that the court delay entry of the order to allow counsel to provide
information to the court about the school’s safety plan in light of the order.
Counsel argued that the provisions of the order had a significant impact on K.L.’s
access to education and therefore under RCW 10.14.040(7), the court was
required to consider such evidence. The court denied the request, observing that
the statute expressly provides that the court must consider the “expense,
difficulty, and educational disruption” of the restrained minor only when it orders
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“a transfer of the alleged offender to another school.” RCW 10.14.040(7).
Although it had the authority to do so, the court did not order K.L. to transfer
schools. And despite the arguments of counsel, there was no evidence before
the court to substantiate the claim that the provisions of the order had the
practical effect of requiring a transfer. The court’s decision denying the request
to postpone entry of the order and to allow the presentation of additional
evidence was tenable.5
The record reflects the court’s consideration of the other relevant factors
under RCW 10.14.040(7), including the “severity of the alleged offense,” and
whether there was “continuing physical danger or emotional distress to the
alleged victim.” K.L. correctly points out that the legislature did not intend for
protection orders to issue under circumstances that amount to “schoolyard
scuffles.” See LAWS OF 2001, ch. 260, § 1. But the record in this case does not
support his characterization of the evidence as an innocuous “schoolyard
situation.” And there is nothing to suggest that the court imposed the order
because the respondent’s attempts to make connections were “socially awkward”
or because the alleged victim felt “weird.”
~ No authority supports K.L.’s position that the court deprived him of his
right to due process by denying his request to delay entry of the protection order
to allow additional evidence. See Goss v. Lorez, 419 U.S. 565, 574, 581, 95S.
Ct. 729, 42 L. Ed. 2d 725 (1975) (10-day suspension required, at minimum, some
form of notice and opportunity for a hearing). Again, the protection order did not
exclude K.L. from attending school or otherwise disrupt his education without
notice and a hearing. And as explained, the court was not required to consider
educational disruption caused by a school transfer when it did not order a
transfer. See RCW 10.14.040(7).
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K.L. further argues that the antiharassment protection order was largely
based on the content of his fictional story and as such, it was impermissibly
based on his constitutionally protected speech. RCW 10.14.020(1) provides that
“[c]onstitutionally protected activity is not included within the meaning of ‘course
of conduct.” RCW 10.14.190 likewise provides that the antiharassment statute
shall not be used “to infringe upon any constitutionally protected rights including,
but not limited to, freedom of speech and freedom of assembly.”
The civil antiharassment statute does not criminalize language. The
purpose of chapter 10.14 RCW is “to provide victims with a speedy and
inexpensive method of obtaining civil antiharassment protection orders
preventing all further unwanted contact between the victim and the perpetrator.”
RCW 10.14.010. And while it may involve speech, conduct that amounts to
harassment is not constitutionally protected. State v. Alexander, 76 Wash. App.
830, 837-38, 888 P.2d 175 (1995) (The “gravamen of [harassment] is the
thrusting of offensive and unwanted communication.”); In re Marriacie of
Meredith, 148 Wash. App. 887, 899, 201 P.3d 1056 (2009). K.L.’s reliance on
cases addressing criminal convictions premised on speech is misplaced. ~
State v. Kohonen, 192 Wash. App. 567, 360 P.3d 16 (2016); State v. Locke, 175
Wash. App. 779, 307 P.3d 771 (2013). And true threat analysis, which helps to
define the scope and limits of criminal statutes that regulate speech, does not
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apply in this context. See State v. Allen, 176 Wash. 2d 611, 626, 294 P.3d 679
(201 3).6
K.L. next argues that the facts of the case do not warrant the particular
restrictions set forth in the protection order. Because the allegations in the
petition involved unwanted communication by electronic means, he claims there
was no basis to impose restrictions designed to prevent physical contact. But the
petitioner testified in his declaration that M.J. feared K.L.’s retaliation and that the
prospect of direct contact with him at school caused M.J. substantial anxiety and
“a great deal of fear and stress.” The evidence supports the restrictions on
physical contact.
Finally, K.L. claims the protection order is overbroad because it imposes
restrictions on the school, a nonparty to the proceeding. However, as explained,
the court had authority to order K.L. to transfer to a different school. •~
RCW 10.14.040(7). The court imposed a less restrictive order, outlining
conditions under which both minors could attend the same school. The court’s
6 Although K.L.’s writing was at the center of the claims underlying the
protection order, his conduct involved purely private communication, in contrast
to other constitutionally protected speech-related activities that broadly implicate
the public interest..~ N.Y. Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,
11 L. Ed. 2d 686 (1964) (publishing); Watts v. United States, 394 U.S. 705, 89 S.
Ct. 1399, 22 L. Ed. 2d 664 (1969) (speaking at political events); United States v.
Grace, 461U.S. 171, 103 S. Ct. 1702,75 L. Ed. 2d 736 (1983) (leafleting);
Richmond v. Thompson, 130 Wash. 2d 368, 922 P.2d 1343 (1996) (complaining to
government agencies); City of Seattle v. Mecirey, 93 Wash. App. 391, 968 P.2d 900
(1998) (accessing courts). “[W}here matters of purely private significance are at
issue, First Amendment protections are often less rigorous” because “restricting
speech on purely private matters does not implicate the same constitutional
concerns as limiting speech on matters of public interest.” Snyder v. Phelps, 562
U.S. 443, 452, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011).
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order does not in fact impose legal obligations directly on the school and, unlike
the case in Trummel, does not grant relief in favor of people or entities that were
not parties to the proceeding. .~ Trummel, 156 Wash. 2d at 668-70.
The evidence was sufficient for the court to find, by a preponderance of
the evidence, that K.L. engaged in unlawful harassment, and we conclude that
the superior court’s ruling was not manifestly unreasonable.
Affirmed.
WE CONCUR: