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Docket Number

No. 46091-9-I.

Advocates

Thomas M. Kummerow (of Washington Appellate Project), for appellant. Norm Maleng, Prosecuting Attorney, and Ann M. Summers, Deputy, for respondent.

Judges

BAKER, J.

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Smart Summary

State of Washington v. James B. Ancira, No. 46091-9-I (Ct. App. July 30, 2001)

Factual and Procedural Background

James Ancira and his wife, Andrea Valle, are the parents of two minor children, ages twelve and four. There is a long history of physical abuse between Ancira and Valle. Ancira was subject to a domestic violence no-contact order prohibiting contact with Valle. After encountering Valle at a party and later arguing while with their children, Ancira drove away with the younger child for several days and did not return the child until Valle agreed to speak with him. Ancira was charged with and pled guilty to felony violation of a domestic violence no-contact order under RCW 10.99.040(4), admitting prior convictions for violating a no-contact order. At sentencing the trial court imposed a standard range sentence and, pursuant to RCW 9.94A.120(20), ordered Ancira to have no contact with his wife or his two children for the maximum term of five years. The court indicated willingness to reconsider after 18 months. Ancira objected to inclusion of the children in the no-contact order and appealed.

Legal Issues Presented

Whether a sentencing condition prohibiting all contact between a parent and his minor children for five years unconstitutionally infringes the parent's fundamental right to parent.
Whether prohibiting Ancira from all contact with his children was reasonably necessary to protect the children from the harm of witnessing domestic violence, such that the condition could be justified under the State's compelling interest.
Whether the sentencing court properly used its authority under RCW 9.94A.120(20) to impose a no-contact order that included the children as individuals "related directly to the circumstances of the crime."

Arguments of the Parties

Appellant's (Ancira's) Arguments

The condition preventing all contact with his children for five years unconstitutionally infringes his fundamental right to parent.
The total prohibition, including indirect contact (telephone, mail, e-mail), was not reasonably necessary to protect the children from harm.
Child visitation and related custody issues should be addressed by the dissolution/family court rather than by the criminal sentencing court.

Respondent's (State's) Arguments

The infringement on Ancira's parental rights is justified by the State's compelling interest in protecting the children from harm caused by witnessing domestic violence.
The children were witnesses to the crime, and RCW 9.94A.120(20) authorizes a sentencing court to impose a no-contact order that relates directly to the circumstances of the crime.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d 1365 (1993)	Standard of review: review of imposition of crime-related prohibitions for abuse of discretion.	Used to state that the court reviews sentencing conditions for abuse of discretion.
State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989)	Definition of abuse of discretion (manifestly unreasonable or on untenable grounds/reasons).	Used to define the abuse of discretion standard applied to the sentencing condition.
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)	Parents have a fundamental liberty interest in care, custody, and control of their children.	Supported the proposition that parental rights are fundamental and subject to heightened protection.
In re Dependency of C.B., 79 Wn. App. 686, 690, 904 P.2d 1171 (1995)	Prevention of harm to children is a compelling state interest.	Supported the State's asserted compelling interest in protecting children.
In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)	State's obligation to intervene to protect a child when a parent's actions seriously conflict with the child's health.	Used to acknowledge the State's duty to protect children's physical/mental health.
State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998)	Limitations on fundamental rights are constitutional only if reasonably necessary to accomplish essential state needs.	Provided the standard that a sentencing condition restricting parental rights must be reasonably necessary.
State v. Letourneau, 100 Wn. App. 424, 439, 997 P.2d 436 (2000)	Sentencing conditions that restrict parental rights must be reasonably necessary; example where prohibition on unsupervised contact with minor children was not reasonably necessary absent evidence of risk.	Deemed instructive and analogous; Court relied on Letourneau to conclude a total ban was not supported by the record.
State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992)	Authority that a sentencing condition may relate to the circumstances of the crime without requiring a causal link.	Referenced in discussing RCW 9.94A.120(20)'s allowance for conditions related to the crime's circumstances.
State v. Parramore, 53 Wn. App. 527, 531, 768 P.2d 530 (1989)	Example upholding a community supervision condition related to circumstances even where no direct causal link to the crime's substance exists.	Used to illustrate the breadth of RCW 9.94A.120(20) authority, though not dispositive of the constitutional issue here.

Court's Reasoning and Analysis

The court applied the abuse of discretion standard to the sentencing condition. It recognized that parents have a fundamental liberty interest in the care, custody, and control of their children and that the State has a compelling interest in preventing harm to children and an obligation to intervene where a parent's conduct seriously conflicts with a child's health. Limitations on fundamental rights are permissible only if reasonably necessary to accomplish essential state needs.

The court examined whether the record demonstrated that completely prohibiting Ancira from all contact with his children for five years was reasonably necessary to protect them from the harm of witnessing domestic violence. Although the court acknowledged evidence that witnessing domestic violence is harmful and that Ancira had not been an exemplary parent, it found that broad assertions and the children's presence at the incident did not justify so extreme an interference with fundamental parental rights. The court relied on State v. Letourneau as instructive: where no evidence showed a parent posed the specific danger at issue, a total prohibition on contact with children was not reasonably necessary.

The court further reasoned that RCW 9.94A.120(20) authorizes conditions relating directly to the circumstances of the crime and that the children, as witnesses, were connected to those circumstances; however, that statutory authority did not cure the constitutional problem because the State failed to show the severe condition was reasonably necessary. The court noted that some limitations (e.g., supervised visitation) might be appropriate but that family or juvenile courts are better suited to tailor visitation orders and provide procedural protections when fundamental parental rights are at stake. Because a marital dissolution proceeding was pending, the court concluded the family court was the proper forum to address visitation concerns.

Holding and Implications

REVERSED AND REMANDED

Holding: The Court of Appeals reversed the portion of the sentencing order that prohibited Ancira from all contact with his two minor children for five years and remanded for further proceedings consistent with the opinion.

Implications: The direct effect is that the total no-contact prohibition between Ancira and his children was struck; the court suggested limited measures (such as supervised visitation) might be appropriate and emphasized that family or juvenile courts are the preferred forum to resolve visitation and child-welfare issues arising from parental criminal conduct. The opinion directs that the family court in the pending dissolution proceeding is the appropriate venue to address these visitation matters on an ongoing basis.

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STATE OF WASHINGTON, Respondent v. JAMES B. ANCIRA, Appellant.

BAKER, J.

After James Ancira violated a no-contact order requiring him to stay away from his wife, the trial court entered a new no-contact order as a condition of sentencing, which included Ancira's two minor children as well as his wife. Ancira objects to the inclusion of the children in the order. We conclude that the order violated Ancira's fundamental right to parent because it was not reasonably necessary to meet the State's legitimate objectives. Accordingly, we reverse.

James Ancira and his wife Andrea Valle are the parents of two minor children, ages twelve and four. There is a long history of physical abuse in the relationship. Ancira was required to stay away from Valle by the terms of a domestic violence no-contact order.

Ancira encountered Valle at a party, and they started talking. They decided to go to a convenience store with their children, but got into an argument on the way there. While Valle was in the store, Ancira drove away with the younger child. He was gone with the child for several days and would not return the child until Valle agreed to talk with him.

Ancira was charged with felony violation of a domestic violence no-contact order as prohibited by RCW 10.99.040(4). He pled guilty as charged, admitting having contact with Valle while knowing that a no-contact order was in effect and admitted that he had two prior convictions for violating a no-contact order. At the sentencing hearing, the trial court sentenced Ancira to a standard range sentence. As part of the sentence, pursuant to RCW 9.94A.120(20), the court ordered that Ancira have no contact with his wife or his two children for the maximum term of five years. The court gave two reasons for including the children in the no-contact order:

Number one, they were present when the last incident occurred. They were upset by it. The history of violence between you and your wife has been conducted before your children. I don't want any further harm to them. Even if they just witnessed it and aren't direct victims of physical violence themselves, it is extremely harmful to children. It is not in their best interest. It does not mean your parents can't see the kids on their own, but you may not have any contact with your wife and kids. You can't call them, drive by, you can't show up at their school. You can't write them letters. You can't ask another person to contact them for you.

The trial court stated that it would be willing to reconsider the no-contact order after a period of eighteen months. Ancira objected to the inclusion of the children in the no-contact order, and now appeals.

We review the imposition of crime-related prohibitions for an abuse of discretion. Abuse of discretion occurs when the decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.

State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d 1365 (1993).

State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989).

Ancira argues that the condition of his sentence preventing him from all contact with his children for five years unconstitutionally infringes upon his fundamental right to parent. The State contends that this infringement is justified by its compelling interest in protecting Ancira's children from harm.

Parents have a fundamental liberty interest in the care, custody, and control of their children. Prevention of harm to children is a compelling state interest, and the State does have an obligation to intervene and protect a child when a parent's "actions or decisions seriously conflict with the physical or mental health of the child." But limitations on fundamental rights are constitutional only if they are "reasonably necessary to accomplish the essential needs of the state." The fundamental right to parent can be restricted by a condition of a criminal sentence if the condition is reasonably necessary to prevent harm to the children. Therefore, we must determine whether the record supports the proposition that prohibiting Ancira from all contact with his children is reasonably necessary to protect them from the harm of witnessing domestic violence.

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

In re Dependency of C.B., 79 Wn. App. 686, 690, 904 P.2d 1171 (1995).

In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).

State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998).

State v. Letourneau, 100 Wn. App. 424, 439, 997 P.2d 436 (2000).

We conclude that the State has failed to demonstrate that this severe condition was reasonably necessary to prevent the children from witnessing domestic violence. There can be no doubt that witnessing domestic violence is harmful to children. And there is ample evidence in the record that Ancira has not been an exemplary parent. But, contrary to the State's view, these broad assertions, standing alone, do not form a sufficient basis for this extreme degree of interference with fundamental parental rights.

State v. Letourneau is instructive. In that case, the defendant was sentenced for second degree rape of a child. We held that a condition prohibiting the defendant from unsupervised in-person contact with her biological minor children was not reasonably necessary to prevent her from sexually molesting them, where there was no evidence that she was a pedophile or posed a danger of molesting her children. Similarly, there is no evidence that prohibiting Ancira from all contact with his children for a lengthy period is reasonably necessary to prevent them from the harm of witnessing domestic violence. Nor does the record support the total prohibition of indirect contact with the children by telephone, mail, e-mail, etc. The State has not explained why prohibiting Ancira from contacting his wife would not protect the children from the harm of witnessing domestic violence between their parents. The trial court may have been concerned about Ancira's repeated violations of the no-contact order, but completely prohibiting him from all contact with his children is extreme and unreasonable given the fundamental rights involved.

Letourneau, 100 Wn. App. at 442.

On this record, some limitations on Ancira's contact with his children, such as supervised visitation, might be appropriate, even as part of a sentence. Generally, however, the criminal sentencing court is not the proper forum to address these legitimate concerns other than on a transitory basis. In Letourneau, we explained why the family and juvenile courts are better equipped to address visitation issues:

The Legislature has provided more appropriate forums than the criminal sentencing process to address the best interests of dependent children with respect to most visitation issues — the family court in the case of marital dissolution and paternity cases, and the juvenile court in the case of dependency proceedings. . . . It is the business of the family and juvenile courts to address the best interests of minor children with respect to most other kinds of harm that could arise during visitation with a parent who has been convicted of a crime. . . . To that end, the family and juvenile courts have authority to appoint guardians ad litem to investigate the best interests of minor children and those courts have broad discretion to tailor orders that address the needs of children in ways that sentencing courts in criminal proceedings cannot.

In addition, when child visitation issues are addressed in the context of dissolution or dependency proceedings, there are statutory procedures in place that protect a parent's right to procedural due process where the fundamental right to parent is at stake.

ch. 13.34 RCW.

The record in this case indicates that at the time Ancira was sentenced, there was a pending marital dissolution in Yakima County. Ancira argued that the dissolution court ought to address child visitation issues, but the sentencing court disagreed and entered the no-contact provision as a condition of Ancira's sentence. While the trial court in this case was motivated by legitimate concerns for the welfare of Ancira's children, it erred in attempting to address them by prohibiting Ancira from all contact with his children as a condition of sentence for the crime of violating a no-contact order prohibiting him from contacting his wife.

The State also contends that the children were properly included in the order because they were witnesses to the crime. RCW 9.94A.120(20) authorizes the trial court to impose a no-contact order as a condition of sentence that relates directly to the circumstances of the crime for which the offender has been convicted. `No causal link need be established between the condition imposed and the crime committed, so long as the condition relates to the circumstances of the crime.' We agree that Ancira's children, as witnesses, were directly connected to the circumstances of the crime. However, this does not ameliorate the constitutional problems discussed above.

RCW 9.94A.120(20) states: "As part of any sentence, the court may impose and enforce an order that relates directly to the circumstances of the crime for which the offender has been convicted, prohibiting the offender from having any contact with other specified individuals or a specific class of individuals for a period not to exceed the maximum allowable sentence for the crime, regardless of the expiration of the offender's term of community supervision or community placement."

State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992). See State v. Parramore, 53 Wn. App. 527, 531, 768 P.2d 530 (1989) (upholding community supervision condition requiring defendant who was convicted of delivery of marijuana to undergo urinalysis, even though his crime did not involve marijuana use.)

The condition was not reasonably necessary to protect the children against the harm of witnessing domestic violence between their parents. This matter is best resolved by the family court in the dissolution proceeding. We strike the portion of the sentencing order prohibiting Ancira from all contact with his children for five years, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BECKER, A.C.J., and COLEMAN, J., concur.

STATE v. ANCIRA