Opinion
No. 34248-1-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Mason County, No. 05-2-01012-0, Anne L. Hirsch, J. Pro Tem., entered December 14, 2005.
Affirmed in part and reversed in part by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Hunt, JJ.
W. David Rovang appeals from the issuance of a protection order entered after the trial court found that he committed domestic violence against his daughter. He argues that the evidence of sexual abuse was insufficient for the trial court to find that the act occurred by a preponderance of the evidence. Deborah Falk-Rovang cross-appeals, arguing that the trial court erred in refusing to award her costs and attorney fees incurred in obtaining a protection order against Rovang. We reverse the issuance of the protection order and affirm the trial court's ruling on fees and costs.
FACTS
Rovang and Falk-Rovang are the adoptive parents of the older K.S. and the younger K.S., both minors. They separated in 2001, and disputed custody of the children. During the pendency of the proceedings, the older daughter lived with Rovang and the younger daughter lived with Falk-Rovang.
Due to the sensitive nature of the allegations in this case, we identify the children using their initials. Because both children have the same initials, we distinguish them as "the older daughter" and "the younger daughter."
Falk-Rovang became concerned that Rovang was sexually abusing the younger daughter and exposing the older daughter to Satanic practices. Her suspicion that Rovang was involved in Satanism began in August 2002, when she contacted Rovang's half-sister, Lynn, who has a history of mental illness requiring psychiatric hospitalization. Lynn, while claiming to suffer from multiple personality disorder, told Falk-Rovang that she had been sexually abused "a lot" as a child and remembers her mother taking part in ceremonies where children were sacrificed. Clerk's Papers (CP) at 115. The ceremonies "had something to do with religion" and the participants wore robes and hoods or animal masks. CP at 115.
Falk-Rovang's suspicions grew when the older daughter drew a series of pictures at school that depicted graves, dead people, freshly killed people, people chained up waiting to die, and people without faces.
The daughter's teacher explained that a group of girls were drawing pictures having to do with Halloween.
The older daughter also told Falk-Rovang that Rovang told her a story about "Bloody Mary" and it scared her. CP at 114. Falk-Rovang became concerned that Rovang had exposed the older daughter to the circumstances depicted in the drawings, in part because as a Mason County teacher in the 1980s, she had received training about Satanic cults.
Falk-Rovang's suspicions of sexual abuse arose after the younger daughter spent time alone with Rovang one weekend. When Falk-Rovang removed the younger daughter's underwear after she returned, she saw that the girl's genitalia were red and inflamed. According to Falk-Rovang, her daughter said, "[D]addy hurt me there," and pointed to her genitals. CP at 113. Falk-Rovang asked if Rovang put something inside her and the girl replied, "[Y]es[,] he put candy inside." CP at 113. At the emergency room, a doctor diagnosed the girl with a diaper rash. Her genital and rectal exams were normal, and there was no vaginal discharge. The incident was reported to the Department of Child Protective Services (CPS) and after an investigation, the matter wasdismissed.
Falk-Rovang also believed that Rovang behaved inappropriately with the older daughter. She described their relationship as "flirtatious" and alleged that he kissed the girl inappropriately. CP at 121. Falk-Rovang reportedly also commented about the older daughter and Rovang going on "dates" and sexualized the daughter's behavior. CP at 159. She believed that her husband's behavior with the girl had resulted in the child behaving flirtatiously toward strangers.
During the custody proceedings, the guardian ad litem, Suzanne Dircks, referred Rovang and Falk-Rovang to Dr. Allen Traywick for psychological evaluations. Traywick opined that Falk-Rovang displayed "a personality disorder that is noticeably prominent," observing that "her heightened degree of suspicion has resulted in distorting and misinterpreting the behavior of others." CP at 125. He expressed concerns that she would make additional allegations of abuse against Rovang because of her suspicions and long-standing resentments. Traywick also suggested that Falk-Rovang would question the children about her suspicions, which could influence the children into making false allegations. In his evaluation of Rovang, Traywick concluded that there was no evidence of disturbed functioning and no basis to conclude that Rovang sexually abused his daughter.
In her report, Dircks also expressed concerns that Falk-Rovang projected her fears and suspicions onto her children and that her preoccupation with sexual abuse and Satanic cult activity was not healthy for them. Dircks noted that Falk-Rovang sexualized her older daughter's behavior, but none of the girl's teachers or family friends witnessed any flirtatious or inappropriate conduct. She also stated that the children were not displaying any symptoms of sexual abuse.
Both Traywick and Dircks recommended that both children be placed with Rovang because Falk-Rovang's ability to effectively parent the children was questionable. They also recommended that the guardian ad litem remain involved after the legal proceedings concluded in order to intervene in the event of further allegations of abuse.
In April 2004, a final parenting plan placed the younger daughter with Falk-Rovang and the older daughter with Rovang. Both children would spend alternating weekends with each parent. The plan also provided that Dircks "shall monitor the residential placement of the children through March 31, 2005. . . . [During this time, Dircks] shall be entitled to intervene should allegations of sexual abuse or any other form of child abuse arise." CP at 90.
In July 2005, after the younger daughter returned from spending the weekend with Rovang, Falk-Rovang noticed she was grabbing at her vaginal area. The girl said, "[M]y pee pee hurts." I Report of Proceedings (RP) at 86. When Falk-Rovang asked why, the girl said that she had put a paintbrush in herself. The child reported that she did it in front of her sister and her sister's friend, that it was her idea to do it, and that her father was not present.
Falk-Rovang took the girl to the emergency room, where her pediatric exam was normal. A nurse interviewed her using open-ended questions and the girl reiterated that she put a paintbrush in herself and said that "it hurt, but it only hurts a little now." I RP at 89. The hospital ultimately discharged the girl to her mother.
About two months later, Falk-Rovang read the younger daughter a book called, "The Right Touch." I RP at 90. Afterward, the girl said that her dad had touched her with his fingers. Falk-Rovang took the girl to a psychologist, Dr. Mary Anne Trause. Trause told the girl that there were three kinds of touching: good touching, like hugging or holding hands; bad touching, like hitting or biting; and secret touching, where somebody older touches a child in the privates and says to keep it a secret. Trause asked the girl if she had any touching troubles and she said, "Daddy touched my peepee with his finger," holding out her pointer finger. CP at 49. She demonstrated pushing her finger into her vaginal area. The girl further reported that the incident occurred one time in the living room at Rovang's house.
In a later session, Trause asked her, "What might make Mama happy sometimes?" The girl replied, "When I tell her things my dad does to me." CP at 49. When Trause asked her to elaborate, she said, "Like one time he put a paintbrush in my pee pee." CP at 49. Trause asked her if that really happened and she said, "Yes." Trause questioned her about the difference between something being true and not true and determined that she understood the difference.
Trause then asked the girl about the paintbrush incident, and she stated that it happened somewhere downstairs at the "big house" when her sister was upstairs. CP at 50. She provided other details, telling Trause that Rovang wore a shirt and pants while she was dressed only in a shirt, and gesturing that the paintbrush was six to eight inches long and was inserted a couple of inches. She said that Rovang then stopped and told her to go play with her sister. When Trause asked her if everything she said was true, she replied that it was. After this discussion, Trause asked the girl what makes Mama sad and she replied, "If I don't tell a person things my dad does." CP at 50.
Trause reported the incident to CPS, although she expressed some reservations and noted, "It is difficult to know what is true." CP at 51. But she believed that the girl's disclosures were credible and did not appear to be coached.
Kelly Boyle, a social worker with CPS, investigated the allegations.
She attempted to interview the girl at school, but the child said she did not remember what she had told her counselor and would not speak with Boyle. Boyle then attended a counseling session between Trause and the girl. During that session, the girl stated that Rovang put a paintbrush "in her pee pee." I RP at 75.
After the disclosure, CPS decided to ask that Rovang have no contact with both children until law enforcement could investigate the allegations. Boyle contacted Falk-Rovang and told her that she could act as the protective parent if she could ensure Rovang had no contact with the children. She mentioned as an option that Falk-Rovang could seek a protection order. Boyle also told Falk-Rovang that if she could not get the protection order, Boyle would call law enforcement to determine whether the children would have to be placed in protective custody.
Falk-Rovang filed a petition for a protection order against Rovang to restrain him from contacting her and both children. In the petition she alleged, "My daughter reported something to CPS — Kelly Boyle. . . . She said my daughters needed to be in my custody as their protective parent while investigation goes on. I am worried concerned about my daughters' safety." CP at 214. The trial court met with Falk-Rovang and told her he could not issue the order based on the information in her petition. Falk-Rovang then called Boyle and based on her conversation, added to her allegations, "Kelly said that [the younger daughter] disclosed sexual abuse to her, by her father." CP at 214. Based on that additional writing, the trial court issued the protection order.
The trial court held a hearing on the protection order on November 2, 2005. The trial court refused to consider the results of Rovang's polygraph test because of the nature of the case and "the extremely restrictive basis for use of polygraphs in this State." II RP at 112. The trial court ultimately found that there was insufficient evidence to issue a protection order as to the older daughter, but it issued the order as to the younger daughter based primarily on the disclosure of touching to Trause. The order prohibited Rovang from having any contact with his younger daughter for one year.
Rovang moved for reconsideration of the finding of domestic violence. He submitted a disposition letter from CPS determining that the allegation was inconclusive, meaning that based on the information available to CPS, it could not determine whether child abuse occurred. Falk-Rovang opposed the motion and requested attorney fees under RCW 26.50.060(1)(g). The trial court denied reconsideration and declined to award attorney fees.
ANALYSIS
Rovang argues that the trial court erred in issuing a protection order, contending that the evidence is insufficient to support a finding of domestic violence.
We review a decision to grant or deny a protection order for an abuse of discretion. In re Marriage of Stewart, 133 Wn. App. 545, 550, 137 P.3d 25 (2006). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). We uphold a trial court's findings if substantial evidence in the record supports them. Stewart, 133 Wn. App. at 550. Substantial evidence is that sufficient to persuade a fair-minded, rational person of the finding's truth. In the Matter of the Contested Election of Schoessler, 140 Wn.2d 368, 385, 998 P.2d 818 (2000).
The Domestic Violence Prevention Act, chapter 26.50 RCW, authorizes a domestic violence victim to petition the court for a protection order. Spence v. Kaminski, 103 Wn. App. 325, 330, 12 P.3d 1030 (2000); see RCW 26.50.030. The petition for relief must allege domestic violence and must be accompanied by a sworn affidavit that sets forth specific facts and circumstances supporting relief. Spence, 103 Wn. App. at 330; see RCW 26.50.030(1). After notice and a hearing, the court may enter a permanent protection order if it finds that the respondent is likely to resume acts of domestic violence. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002); see RCW 26.50.060. But when the order restrains the respondent from contacting his own children, the order is limited to one year in duration. Stewart, 133 Wn. App. at 550-51; RCW 26.50.060(2).
"`Domestic violence' means: (a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking . . . of one family or household member by another family or household member."Hecker, 110 Wn. App. at 868 (emphasis omitted) (quoting RCW 25.50.010(1)).
Because a protection order is a civil remedy, the petitioner must provide proof of the statutory elements by a preponderance of the evidence. Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995); City of Tacoma v. State, 117 Wn.2d 348, 351-52, 816 P.2d 7 (1991). The preponderance of the evidence standard is equivalent to "more likely than not." In re Pers. Restraint of Woods, 154 Wn.2d 400, 414, 114 P.3d 607 (2005).
Rovang contends that the record lacked substantial evidence to support a finding that he committed domestic violence against his younger daughter. He argues that the disclosure of touching is insufficient to establish sexual assault because a father may touch his daughter's vaginal area while changing her diaper or drying her after a bath without committing a sexual assault. Further, he maintains that his younger daughter's statement to Trause is insufficient to justify the protection order in light of the circumstances of the disclosure.
We agree that insufficient evidence supported issuing a permanent protection order. As Trause noted in this case, "It is difficult to know what is true." CP at 51. The only evidence of sexual abuse is the younger daughter's disclosures to Trause and Boyle. Because the child openly stated that it makes her mother happy "[w]hen I tell her things my dad does to me" and that her mother is sad "[i]f I don't tell a person things my dad does," the veracity of the disclosures is troubling. CP at 49, 50.
The majority of Falk-Rovang's evidence consisted of affidavits attesting to sexual or unusual behavior by the children, but the evidence does not link Rovang to the behavior.
The disclosures are also questionable because of their inconsistency. The younger daughter first reported that she had put a paintbrush in herself and later told Trause and Boyle that Rovang had put it in her. Traywick's report anticipated that the children might develop false memories or answer questions in a way that would satisfy Falk-Rovang. Further, the disclosures must be considered against the backdrop of Falk-Rovang's previous unfounded allegations of abuse and the concern that she would continue to accuse Rovang of inappropriate behavior toward the children. There was no physical evidence of sexual abuse nor any evidence that the children have displayed symptoms of abuse.
The history of unfounded allegations, Traywick's concern that the children might develop false memories of abuse to placate their mother, and the absence of any evidence corroborating the disclosures of abuse all weigh in Rovang's favor against a finding of domestic violence. The evidence supporting the finding is limited to the younger daughter's account of the paintbrush incident and her statement that "[D]addy touched my pee pee with his finger," as well as Trause's hesitant conclusion that the disclosures seemed credible. CP at 49. On this evidence, the trial court could not reasonably conclude that the alleged abuse probably occurred.
Further, the trial court's finding of domestic violence is contradicted by CPS's determination of inconclusiveness after investigating the disclosures. The result of the CPS investigation was relevant and compelling because the agency charged with investigating claims of child abuse could not determine whether the younger daughter's disclosures were true. Once the trial court became aware that the official investigation could not verify the truth of the allegations, it was unreasonable to weigh those disclosures heavily against the compelling evidence that the disclosures were fabricated.
The trial court stated that it was focusing particularly on the part of Trause's report where the younger daughter disclosed that "Daddy touched my pee pee with his finger." II RP at 129. But it is not unlawful for a father to touch his child's genitals; it is unlawful for a father to physically or sexually abuse his child. Without some additional evidence that Rovang's touching was abusive, the disclosure of a single incident when a father touched his daughter's genitals is insufficient to justify finding domestic violence.
We hold that the trial court erred in issuing the protection order under the facts presented in this case. The trial court further erred when it declined to reconsider its finding in light of CPS's determination that the allegations were inconclusive. Accordingly, we reverse.
Because we find the evidence insufficient, we do not reach Rovang's argument that the trial court improperly excluded polygraph evidence. But we note in passing that the rules of evidence do not apply to proceedings involving domestic violence protection orders. ER 1101(c)(4). The trial court was, therefore, under no obligation to evaluate the polygraph evidence under the evidentiary rules.
ATTORNEY FEES
On cross-appeal, Falk-Rovang contends that the trial court erred in denying her request for costs and attorney fees, and she further requests her attorney fees on appeal.
Under RCW 26.50.060(1)(g), the trial court may, on notice and hearing, "[r]equire the respondent . . . to reimburse the petitioner for costs incurred in bringing the action, including reasonable attorneys' fees." Under this statute's plain language, the trial court's decision whether to award attorney fees is discretionary. The trial court declined to award fees because it issued the protective order as to one child, but it denied the petition as to the other child. This decision was within the trial court's discretion.
Falk-Rovang also requests her attorney fees on appeal under RAP 18.1 and RCW 26.50.060(1)(g). But because the trial court erred in finding that Rovang committed an act of domestic violence against the younger daughter, we deny her request.
Rovang requests attorney fees under RAP 18.9, which allows the appellate court to order compensatory damages to any party required to defend a frivolous appeal. In re Marriage of Penry, 119 Wn. App. 799, 803-04, 82 P.3d 1231 (2004). Rovang argues that Falk-Rovang's cross-appeal is frivolous because it is well established that the use of "may" in a statute indicates the provision is permissive rather than mandatory and, therefore, her appeal presented no debatable issue.
In considering whether an appeal is frivolous, we review several factors:
"(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal."Penry, 119 Wn. App. at 804 n. 2 (quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980)).
Here, Falk-Rovang relied in part on language in Hecker suggesting that an award of fees is mandatory, notwithstanding the statutory language. 110 Wn. App. at 870-71. Her argument lacks merit because the cited language is dictum and does not overcome the statutory language. But in light of her ability to point to supporting legal authority, the argument is not "`so totally devoid of merit that there was no reasonable possibility of reversal.'" Penry, 119 Wn. App. at 804 n. 2 (quoting Streater, 26 Wn. App. at 435).
We therefore affirm the trial court's order denying attorney fees to Falk-Rovang, deny Falk-Rovang's request for attorney fees on appeal, and deny Rovang's request for attorney fees under RAP 18.9.
Reversed in part and affirmed in part.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: Armstrong, J., Hunt, J.