COURT OF APPEALS
VICTORIA PETERSON
Appellant,
vs.
CITY OF SEATTLE; TERRANCE MAYOVSKY;
MARK H. SIDRAN; JUDITH R. SHOSHANA;
JOHN and JANE DOE CITY ATTORNEYS 1
through 100; MAYOR PAUL SHELL;
SEATTLE POLICE OFFICERS JOHN DOE O'NEIL and
HANNOVAR and Their Wives and Marital Communities;
SEATTLE POLICE PERSONNEL IN CHARGE OF TRAINING POLICE IN PARENT CHILD MATTERS JOHN AND JANE DOES 1 through 50,
and their Wives and marital communities,
Respondents.
BRIEF OF APPELLANT
Edward D. Campbell, WSBA # 439
Attorney for Victoria Peterson
9534 14th Ave NW
Seattle, WA 98117-2308
Phone (206) 783 3410
SPECIFIC ALLEGATIONS OF ERROR 1
CITY DEFENDANT ERRORS 1
MAYOVSKY ERRORS 2
STATEMENT OF CASE 5
ARGUMENT 11
CITY DEFENDANTS LIABILITY 11
CITY DEFENDANTS DUTY TO PROTECT PARENTAL RIGHTS 11
DUE PROCESS RIGHTS, WHEN ARE THEY VIOLATED 14
WASHINGTON'S SCHEME TO PROTECT PARENTAL RIGHTS 15
CITY COMMITTED A PUBLIC POLICY TORT 19
CITY OF SEATTLE LIABILITY UNDER 42 U.S.C. §1983 20
NO POLICE IMMUNITY HERE 24
CITY ATTORNEY'S LIABILITY 33
NO CITY IMMUNITY 40
TRAIL ERRORS - MAYOVSKY CASE 41
HARBORING AND/OR ENTICING 41
SUFFICIENCY OF PLEADINGS 44
PLEADINGS SHOULD HAVE CONFORMED TO PROOF 47
COURT'S ERRONEOUS INSTRUCTIONS 48
CONCLUSION 49
APPENDIX i
Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991) 32, 41
Bitzman v. Parisi, 14 Wn.App. 791, 545 P.2d 578 (1975) 48
Bowers v. Hardwick, 478 U.S. 186, 92 L.Ed.2d 140, 106 S.Ct. 2841 (1986) 13
Buckley v. Fitsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) 40
Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)
40
City of Canton v. Harris 21-23
City of Oklahoma City v. Tuttle, 471 U.S. 808, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985) 23
Cook v. Sheldon, 41 F.3rd. 73 (2nd Cir 1994) 30, 36
Corbally v. Kennewick Sch. Dist., 94 Wn.App. 736, 973 P.2d 1074 (1999)
32
Custody of Anderson, 77 Wn. App. 261, 890 P.2d 525, (1995) 17
Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998) 12, 17
Custody of Stell, 56 Wn.App. 356, 783 P.2d 615 (1989) 17
Davis v. Mason County, 927 F.2d 1473, (9th Cir.), cert. denied, 116 L. Ed. 2d 227, 112 S. Ct. 275 (1991) 22
Discomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989) 19
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir.1994) (en banc), cert. denied, 113 S. Ct. 1066, 122 L. Ed. 2d 371 (1993) 23
Dumas v. Gagner, 137 Wn.2d 268, 971 P.2d 17 (1999) 46
Eastman v. Olympia, 95 Wn.2d 105, 621 P.2d 724 (1980); 11
Fisher v. Berg, 158 Wash. 176, 290 P.2d 984. 11
Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996)
20
Gonzalez v. Ysleta Indep. Sch. Dist, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) 23
Gurno v. LaConner, 65 Wn.App. 218, 828 P.2d 49 (1992) 29
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)
39, 40
In re Churape, 43 Wn.App. 634, 719 P.2d 127 (1986) 16, 17
Jensen v. Ledgett, 15, Wn.App. 552, 550 P.2d 1175 (1976) 47
Kalina v. Fletcher, 522 U.S. 118, 139 L.ed.2d 471, 118 S.Ct. 502 (1997)
38-40
Kelso v. Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964) 41
Krause v. Catholic Community Services, 47 Wn.App. 734, 737 P.2d 280 (1987) 16
Lassiter v. Department of Social Services, 452 U.S. 18, (1981) 12
Lesley v. Department of Social & Health Services. 83 Wn.App. 263, 921 P.2d 1066 (1996) 32
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)
15
M.L.B. v. S.L.J., 519 U.S. 102, 136 L.Ed.2d 640, 101 S.Ct. 2153 (1996)
12
Magnuson v. O'Dea, 75 Wash 574, 135 P.2d 640, 48 L.R.A.N.S. 327, Ann.Cas 1915B, 1230 (1913) 42, 43
Marci v. King County, 126 F.3d 1125, amended on denial of rehearing (C.A. 9, [Wash] 1997) cert. Den. 140 L.Ed.2d 186, 118 S.Ct. 1178 15
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)
15
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) 20, 23
Moore v. City of East Cleveland, 431 U.S. 494, 51 L.Ed.2d 531, 97 S.Ct. 1932 (1977) 13
North Coast v. Factoria, 94 Wn.App. 855, 974 P.2d 1257 (1999) 46
Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 01/15/1992) 21-23
Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980) 21
Pembaur v. City of Cincinnati,475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) 21
Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) 13, 15
Potter v. Van Waters & Rogers, 19 Wn.App. 746, 578 P.2d 859 (1978)
47
Prince v. Massachusetts, 321 U.S. 158, 88 L.Ed. 645, 64 S.Ct. 438 (1944)
15
Quilloin v. Walcott, 434 U.S. 246, 54 L.Ed.2d 511, 98 S.Ct. 49 (1978)
12, 13
Ralston v. Vessey, 43 Wn.2d 76, 260 P.2d 324 (1953), 11
Reichelt v. Johns-Manville Corp. 107 Wn.2d 761, 733 P.2d 530 (1987)
47
Rhyne v. Henderson County, 973 F.2d 386 (5th Cir.1992) 24
Rodriguez v. Perez, 99 Wn.App. 439, 994 P.2d 874 (2000), review denied
27, 32
Roy v. Everett, 118 Wn.2d 352, 823 P.2d 1084 (1992) 25
Salas v. Carpenter, 980 F.2d 299 (5th Cir.1992) 24
Santosky v. Kramer, 455 U.S. 745, 68 L.Ed.2d 640, 101 S.Ct. 2153 (1982) 12
Savage v. State, 127 Wn.2d 434, 899 P.2d 1270 (1995) 41
Schneider v. Seattle, 24 Wn.App. 251, 600 P.2d 666 (1979) 48
Sedlackek v. Hillis, 104 Wn.App., 1, 3 P.3rd 767 (2000) 19
Selman v. Barnett, 4 Ga.App. 375, 61 S.E. 501 (1908) 43
Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1145 (3d Cir.1990) 24
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1555 (1942) 15
Smith v. Organization of Foster Families, 431 U.S. 816, 53 L.Ed.2d 14, 97 S.Ct. 2094 (1977) 13
Stanley v. Illinois, 405 U.S. 645, 39 L.Ed.2d 551, 92 S.Ct. 1208 (1972)
13
State ex rel Michelson v. Superior Court, 41 Wn.2d 718, 251 P.2d 603 (1952) 14
State v. Russel, 69 Wn.App. 237, 848 P.2d 743 (1993) review denied 122 Wn.2d 1003, 859 P.2d 603 25
Strode v. Gleason, 9 Wn.App. 13, 510 P.2d 250 (1973) 42, 43
Temkin v. Frederick County Comm'rs, 945 F.2d 716, (4th Cir.1991), cert. denied, --U.S. , 112 S. Ct. 1172, 117 L. Ed. 2d 417 (1992) 24
Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984)
20
Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 1205 S.Ct. 2054, (2000) 12
Turpin v. Mailet, 619 F.2d 196, (2d Cir.), cert. denied, 449 U.S. 1016, 66 L. Ed. 2d 475, 101 S. Ct. 577 (1980) 21
Tyner v. State Dept. of Social and Health Services, 141 Wn.2d 68, 1 P.3d 1148 (2000) 27, 33
Vern J. Oja & Associates v. Washington Park Towers, 15 Wn.App. 356, 549 P.2d 63 (1976) 48
Washburn v. Abrams, 122 Ky 53, 90 S.W. 997 (1906) 43
Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) 14
White v. Rochford, 592 F.2d 381 (7th Cir.1979) 24
Wisconsin v. Yoder, 406 U.S. 205, 32 L.Ed.2d 15, 92 S.Ct. 1208 (1972)
14
42 U.S.C. §1983 1, 2, 20-23, 29, 30, 38, 39, 50
RCW 4.96.010 40, xiii
RCW 9A.04.110 34
RCW 9A.16.100 25
RCW 10.99.040 34, 35
RCW 10.99.040(2)(a) 34
RCW 10.99.040(3) 35
RCW 10.99.050(1) 36
RCW 10.99.070 25
RCW 13.04.030 37, x
RCW Chapter 13.32 15, 16
RCW Chapter 13.32A, the Family Reconciliation Act 31
RCW 13.32A.010 31, vi
RCW 13.32A.030 15, 31, vi
RCW 13.32A.030(2) 30, 36
RCW 13.32A.050 31, viii, ix
RCW 13.32A.060 31, 32, ix
RCW Chapter 13.34 41
RCW 13.34.020 14, 16, 17, vi, viii
RCW 13.34.030(1) 15
RCW 13.34.040 18, vii
RCW 13.34.060 34
RCW 13.34.062 34
RCW 13.34.110 18, ii
RCW 13.34.130(7)(a) 16
RCW13.34.180 34, 5
RCW 13.64.010 19
RCW 26.10.030(1) 17
RCW 26.44.010 14, 16, 26, 33, vi
RCW 26.44.020 18, 32
RCW 26.44.030(1)(a) and (d) 19, vii
RCW 26.44.030(3) 19, viii
RCW 26.44.050 32
14th Amendment of the United States Constitution 12, 34
4th Amendment United States Constitution 30
Art 1 §3 Washington State Constitution. 34
CR 8 45
ER 904 44
Harper and James, The Law of Torts (1957) Vol. 1 42-44
Orland and Tegland, 3A Washington Practice 4th Ed, Rules of Practice
45
Restatement of Torts 2d, §700 41
Seattle Municipal Code (SMC) 12A.06.130 34-36
SMC 12.06.195 34
SMC 12A.06.160 35, 40
Speiser, Krause & Gans 17 The American Law of Torts, § 22.12. 44
1. Court erred in denying Victoria Peterson's motion for summary judgment against the City of Seattle (CP 315-316):
a) The uncontested evidence was that the City, through its representatives had clearly violated Appellants constitutionally protected parental rights by its pursuit and implementation of no contact orders baring her contact with her daughter, which amounted to a public policy tort;
b) The uncontested evidence was that the City, through its representatives had clearly violated Appellants constitutionally protected parental rights by its pursuit and implementation of no contact orders baring her contact with her daughter, by its policy of deliberate indifference to constitutionally protected parental rights in violation of 42 U.S.C. §1983
2. Court erred in granting all the Seattle Defendants summary judgment because considering all the evidence and reasonable inferences therefrom all reasonable persons could not conclude the following against them should be dismissed (CP 466-474):
a) Dismissing the following claims against the City of Seattle:
i) Public Policy Torts
ii) Civil Rights Violations under 42 U.S.C. §1983
b) Against Judith Shoshana and Mark Sidran
i) Malicious prosecution
ii) Civil Rights Violations under 42 U.S.C. §1983
c) Against Officer Havenar and O"Neil
i) Wrongful arrest
ii) Malicious prosecution
iii) Civil Rights Violations under 42 U.S.C. §1983
The errors at trial justifying a setting aside the jury verdict and that exhibited CR 59 grounds (1) (7), (8), and/or (9) a new trial were as follows:
1. The court's failure to allow the Plaintiff to proceed on the theories of harboring and enticing under her original complaint amounted reversible errors of law which were objected to at the time by the Appellant, for which Ms. Peterson was entitled to a new trial. This was manifested in the rulings on the pretrial motions including motions on the evidence:
a) Excluding evidence of Victoria Peterson's lawful custody of Monique Peterson including Exhibit 1 (1) (RP 80:19-85:18);
b) In denial of Appellant's supplemental motion in limine (CP 699-702) baring certain testimony concerning her parent child relationship and the feelings between the mother and daughter as this either ignores or qualifies the mother's parental rights over her daughter, and is irrelevant to the issues of harboring and enticing.(RP 43:-9).
2. The court's failure to allow the Victoria Peterson to proceed on the theories of harboring and enticing during trial amounted reversible to errors of law which were objected to at the time by the Plaintiff, for which the Plaintiff is entitled to a new trial. These errors were manifest in the courts ruling above and on trial motions:
a) Refusing to allow Appellant to go present her case as on of harboring and enticing under her original complaint (RP 7:17-16:13)
b) To amend her complaint before any testimony by adding the commonlaw causes of action on the case known as harboring and enticing to her case against Terrance Mayovsky (RP 69:6-72:5);
b) To amend her pleadings to conform to the proof in this case to include the theories of harboring and enticement and to be able to take the case to the jury on those theories (RP 446:19-447:14).
3. The court's failure to allow the Appellant to proceed on the theories of harboring and enticing under her original complaint and during trial amounted to reversible errors which were objected to at the time by the Appellant. The errors were also manifested in the Court's Jury instructions Numbers 2, and 3 (2) objected to and exceptions taken thereto (CP 813-824; RP 447:22-448:13).
4. The court's failure to allow the Victoria Peterson to proceed on the theories of harboring and enticing under her original complaint and during trial amounted to reversible errors which were objected to at the time by the Appellant. The court's errors were manifested in the failure to give Victoria Peterson's requested jury instructions Numbers 2, 3, 4, 5, 6, 11, or 12, and 13 and 14 (3) (CP 733-745, 783-788; RP 461:7-10).
5. The Court abused its discretion in numerous rulings on the evidence which, taken cumulatively including or excluding the court's other rulings, would entitle the Victoria Peterson to a new trial under CR 59. Objections to this evidence and rulings were made at the time and each prejudices the Victoria Peterson. These included
a) Baring testimony of juvenile offenses committed by Monique Peterson while staying with Terrance Mayovsky (RP 68:6-15, 224:10-225:17)
b) Baring evidence of drug use in Terrance Mayovsky's home (RP 60:6-62:16);
c) Baring the testimony of drug and/or alcohol use by Monique Peterson while being harbored by Terrance Mayovsky (RP 60:6-62:16);
7. Reviewing 1 through 5 set forth above, it is apparent that substantial judgment has not been done in this case and Victoria Peterson is entitled to a new trial pursuant to CR 59(9).
8. The trial court erred in denying the motion for a new trial when these errors were pointed out to it pursuant to CR 59 (CP 873).
Victoria Peterson appeals the court orders and decisions below that denied her an opportunity to try her Civil Rights, Public Policy Tort, Malicious Prosecution and Wrongful Arrest cases against the City Defendants and her case of Harboring and/or Enticement against Terrance Mayovsky.
Victoria Peterson is the mother of Monique Peterson who was sixteen when the events that gave rise to this action occurred (RP 208: 17-18). Victoria Peterson used to live with Terrance Mayovsky. But they had broken off on June 13, 1994, several years before these events, (RP 211: 11-16). Her daughter continued to have contact with Mayovsky and he kept a room for her (RP 154:4 - 20, 423:11-12). He is not in any way related to Monique by blood, marriage or adoption (RP 142: 5-8, 144: 21 - 145:11. Monique admitted that part of the reason she continued to stay with Mr. Mayovsky was because of his actions (RP 423:13-22).
In 1999 Mr. Mayovsky knew that Victoria Peterson did not want her daughter staying with him (RP 146:8 -149:8). On the evening of February 19, 1999 Monique had gone to Mayovsky's home to stay against he mothers wishes (RP 415:17-21). Mayovsky knew her mother was outside his residence calling Monique to come home with her (RP 155:7-156:2, 162:10 - 24). Rather than send Monique home with her mother, he called the police and complained that she had entered his house and broken a previously broken window in his camper (RP 149:9-14, 150:17-151:2) . He knew that Victoria Peterson would be arrested when he called 911 or when the police showed up (RP 161:19 - 162:7).
Mrs. Peterson asked the police to be helped in getting her daughter away from Mr. Mayovsky (CP 224:17-225:4). They refused and instead arrested her, charged her with criminal trespass, assault on her daughter and property damage. The assault and property damage charges were later dropped and she pleaded to the criminal trespass on Mr. Mayovsky's property rather than risk a trial (CP 226:8-13, CP 40:14 - Ex. No. 1,). At the trial below it was brought out that Monique even denied under oath that her mother had entered the house (RP 414:10 - 415:16).
Victoria Peterson had contacted the police before but had received no help (CP 221). Mrs. Peterson offered to show the police that she had a superior court order giving her custody of her daughter but they would not let her get it or show it to them (CP 225:12-17). The trial court refused to let that Superior Court order, Exhibit 1, be admitted (RP 80:19-85:18).
Upon release after being held over the weekend, Victoria Peterson found that she was summarily restrained from any way contacting her daughter because the police had filed the charges as a domestic violence dispute and the prosecutor had requested and the court had issues such an order in response to those charges (CP 225:22-226:3). Her parental rights had been summarily suspended by order of the municipal court in releasing her. The City never offered Victoria Peterson a hearing on her parental rights (CP 225:22-226:15), and had no procedure for conducting such a hearing, nor any procedure for exercising any visitation rights or doing anything to reunite her with her daughter (CP 145:20-22 Exhibit 3; Slotemaker RP 332:3-22). The City took this action even though it had absolutely no evidence, outside of the supposed shoving incident, that there had ever been any violence, neglect or abuse by Victoria Peterson of her daughter (RP 411:19-412-10). Without offering her any hearing on the loss of her parental rights, or opportunities to reconcile the family, the City insisted on continuing her no contact order at time of sentencing on the criminal trespass plea (4). This apparently was on the request of her daughter and Mr. Mayovsky (Slotemaker, RP 321:10-20; 223:1-3). Later the City contacted her daughter, determined the daughter's desire not to see her mother, and refused to agree to lifting the no contact order (CP 149:23-25, Ex. No. 4; 150:16-22 Exhibits 10-11;). For over two years Victoria Peterson barred from any contact with her daughter (until after she was 18), while Monique continued to live with Terrance Mayovsky in his home without her mothers consent .
Victoria Peterson moved for partial summary judgment against the City of Seattle on its Civil Rights actions for unlawfully interfering with her associational rights in the parent-child relationship with her daughter, Monique J. Peterson, by depriving her of the fundamental right to autonomy in child rearing decisions, her right to the company and companionship of that only child, and her right to the care, custody and management of Monique J. Peterson during the remainder of her minority (CP 58-60). All of the City defendants (The City, the Mayor Mr. Shell, City Attorney Mr. Sidran, his assistant Ms. Shoshana and police officers O'Neil and Havenar) also moved for summary Judgment (CP 61-91). The court considered numerous documents and denied Ms. Peterson's motion (CP 315-316), struck part of her evidence (CP 313-314) and granted the City Defendants motion for summary judgment while denying Appellant's. (CP 315-316). A motion to reconsider was filed (CP 317-326), which was denied (CP 466-469).
Thereafter the case proceeded only against Mr. Mayovsky. Mr. Mayovsky moved for summary judgment (CP 327-465). The motion was granted for complaints of wrongful and malicious prosecution, but Judge Armstrong ruled that the motion to dismiss "those complaints that cover alienation of the affection and deprivation of Victoria Peterson of affection and company of Monique Peterson and of Victoria Peterson's parental rights [were] denied." [emphasis added]. (CP 635-636).
Victoria Peterson chose to go to trial on her complaints against Mr. Mayovsky based upon the legal theories providing recovery for Mayovsky's denial of parental rights, i.e., the theories of harboring and enticing. [Victoria Peterson's trial brief (CP703-705); Joint Statement of Evidence Exhibit 1 (CP 668-678); Victoria Peterson's proposed jury instructions 1-10, (CP 733-745); Victoria Peterson's Supplemental Jury Instructions 11 - 14 (CP 783-788); Victoria Peterson's Supplemental trial brief (CP 746-753).] Oral argument was heard on January 16, 2002 on whether Harboring and enticing were pled and Judge Halpert ruled that the Appellant could not proceed on those grounds (RP 7:17 to 16:13). Victoria Peterson thereupon moved to amend pleadings to add these two causes of action (CP 771-782). This was heard and denied on January 17th (RP 69:6 - 72:5, CP 769-770).
Evidence was admitted from testimony of Mr. Mayovsky that he knew he was sheltering and supporting Monique Peterson without her mothers consent (RP 146:8 - 149:8). He testified he paid Monique for doing chores and housework (RP 147:4-22). Monique Peterson confirmed this was done till she got her own job (RP 409:8-17). Monique even confirmed her mother asked her to perform some services at home (RP 423:6). Under cross examination by his own attorney Mayovsky testified he knew on February 19, 1999 before the police arrived that Victoria Peterson wanted her daughter (RP 155:7-156:2) and again on redirect (RP 162:10 - 24). February 19, 1999 was the first time that he had ever barred Victoria Peterson from entry into his house. (RP 163:18 -25). Mayovsky's psychological expert, Dr. Thorner, found no reason that Victoria Peterson was an unfit nurse nor any information that would suggest she was an unfit mother (RP 386:16-387:4).
On the strength of such testimony trial motions were made to conform the pleadings to the proof and submit the case to the Jury on the question of harboring, which was denied (RP 446:19 - 447-14). The court opined that there "was no proof of loss of services...." The court then denied Ms. Peterson's proffered instructions (RP 461:7-10) and proceeded with its own (CP 813-824). This forced Ms. Peterson to go to the jury on a theory of alienation of affections. Appellant also took exception to instructions two and three of the court (RP 447: 22 - 448:13). Thereafter Appellant moved for a new trial, which was denied (CP 829, 873) . Judgment on the jury verdict was entered on February 19, 2002 (CP 862 - 872). A second amended notice of appeal was thereafter timely filed (CP 874-881)
Each error raised in this appeal was objected to at the time of their occurrence, Eastman v. Olympia, 95 Wn.2d 105, 621 P.2d 724 (1980); Ralston v. Vessey, 43 Wn.2d 76, 260 P.2d 324 (1953), and was prejudicial to the Victoria Peterson, Fisher v. Berg, 158 Wash. 176, 290 P.2d 984. The argument is divided into two sections, the dismissal of the City Defendants and the trial of the claims against Mr. Mayovsky.
CITY DEFENDANTS DUTY TO PROTECT PARENTAL RIGHTS
A parent has the fundamental right to autonomy in child rearing decisions, absent a showing of harm or threat of harm to the child. Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998) affirmed Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 1205 S.Ct. 2054, (2000). It is the right of all parents to be presumed fit until proven otherwise. Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998) affirmed Troxel v. Granville, supra..
Choices of marriage, family life, and the upbringing of children are among the associational rights ranked as of basic importance in our society sheltered by the 14th Amendment of the United States Constitution from the State's unwarranted usurpation, disregard, or disrespect, M.L.B. v. S.L.J., 519 U.S. 102, 136 L.Ed.2d 640, 101 S.Ct. 2153 (1996). Terminating parental rights interferes with substantive rights and requires a state to proceed in a fundamentally fair manner, Santosky v. Kramer, 455 U.S. 745, 68 L.Ed.2d 640, 101 S.Ct. 2153 (1982). These rights undeniably warrant deference and, absent a powerful countervailing interest, protection, Lassiter v. Department of Social Services, 452 U.S. 18, (1981). A state may not break up a natural family without showing unfitness as it would offend the Due Process clause of the 14th Amendment, Quilloin v. Walcott, 434 U.S. 246, 54 L.Ed.2d 511, 98 S.Ct. 49 (1978). This must be done by clear and convincing evidence, Santosky v. Kramer, supra. 455 U.S. at 769. That means the city would have had to offer her a hearing on her parental rights, which was never offered.
Under the U.S. Constitution, any proceedings to restrict parental rights are subject to "rigorous judicial scrutiny." The Court, drawing on the line of cases since Meyer and Pierce, has ''established that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.'' Moore v. City of East Cleveland, 431 U.S. 494, 503, 51 L.Ed.2d 531, 97 S.Ct. 1932 (1977) (plurality). See Bowers v. Hardwick, 478 U.S. 186, 92 L.Ed.2d 140, 106 S.Ct. 2841 (1986).
"If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest, I should have little doubt that the State would have intruded impermissibly on 'the private realm of family life which the state cannot enter.'''
Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 53 L.Ed.2d 14, 97 S.Ct. 2094 (1977) (Justice Stewart concurring), cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255. The State may only interfere in that relationship in the service of a "powerful countervailing interest." Stanley v. Illinois, 405 U.S. 645, 651, 39 L.Ed.2d 551, 92 S.Ct. 1208 (1972). The parent-child relationship characterized as an "essential" Constitutional right, one of the "basic civil rights of man," id. at 651. The "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L.Ed.2d 15, 92 S.Ct. 1208 (1972).
This is doctrine is supported by legislative mandate in Washington: RCW 13.34.020. (5) This policy declaration contemplates two types of actions by the state: 1) service aimed at maintaining the family unit as a fundamental resource and at preserving the child's rights to basic "nurturing." and 2) deciding when those purposes may be in conflict and resolving that conflict in favor of one of those purposes, nurturing the child. The policy of the State of Washington is further amplified in RCW 26.44.010. (6)
The Washington courts have long recognized in State ex rel Michelson v. Superior Court, 41 Wn.2d 718, 721, 251 P.2d 603 (1952):
"The law does not fly in the face of nature, but rather seeks to act in harmony with it, and to that end encourages the formation and continuance of those ties which, by the inscrutable providence of God, bind man to his own flesh." [Citations omitted].
"The Due Process Clause guarantees more than fair process, and the 'liberty' it protect[s] includes more than the absence of physical restraint. [case cited]" Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997). Substantive due process violations are complete as soon as the governmental action occurs, Marci v. King County, 126 F.3d 1125, amended on denial of rehearing (C.A. 9, [Wash] 1997) cert. Den. 140 L.Ed.2d 186, 118 S.Ct. 1178. Due process protects rights to marry, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1555 (1942); and the right to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Explaining what the right to bring up children includes, the Supreme Court has repeatedly held: "It is cardinal with us that the custody, care and nurture of the child reside first with the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166, 88 L.Ed. 645, 64 S.Ct. 438 (1944). The City of Seattle's no contact order virtually cut this off.
WASHINGTON'S SCHEME TO PROTECT PARENTAL RIGHTS
All of the state statutory provisions of RCW Chapter 13.32 and 13.34 apply to children and a child is defined as any person under the age of 18 years [RCW 13.32A.030(2) and RCW 13.34.030(1)]. If a child lacks basic nurture as required by law, the State of Washington has set forth a very specific series of proceedings to either bring that nurture, health and safety back into the parental child relationship, or failing that, to terminate the same, all through ordered proceedings controlled by the Superior Courts from Shelter Care , through Dependency proceedings, followed only if necessary by Termination and after that adoption. RCW Chapter 13.34.
A dependency is the "helping" intervention of the government, Krause v. Catholic Community Services, 47 Wn.App. 734, 744, 737 P.2d 280 (1987), when "a child's right to conditions of basic nurture, health, or safety is jeopardized." RCW 13.34.020.
Even a Dependency is not meant to provide optimal parents for a child. Dependency is not meant to provide average parents to a child. Rather, the state is justified in intervening in a family's life only when and so long as the care provided by the family unit falls below basic nurture, basic health or basic safety. (See also, RCW 26.44.010, using the term "minimum".) The dependency must be dismissed when parental deficiencies--which brought their care of the child below the line of basic/minimum nurture, health or safety--are alleviated, mitigated or cured. In re Churape, 43 Wn.App. 634, 638, 719 P.2d 127 (1986); RCW 13.34.130(7)(a).
A dependency proceeding is not an opportunity for caseworkers or judges to impose their concept of proper parenting on a family. See, Custody of Smith, 137 Wn.2d 1, 18, 20-1, 969 P.2d 21 (1998) (not state's province to make significant decisions regarding children "merely because it could make a 'better' decision"); Custody of Anderson, 77 Wn. App. 261, 890 P.2d 525, 527 (1995). Certainly any Municipal action or proceeding granting no contact orders cannot be based upon such flimsy reasoning. A dependency is not a means to redistribute attractive children through termination and adoption. Non-parents can only gain custody of children by establishing parental unfitness. See, RCW 26.10.030(1); Custody of Stell, 56 Wn.App. 356, 365, 783 P.2d 615 (1989). A dependency is not a procedure where the state has "rights" for itself. Rather, the child has rights; the state only has authority to intervene when a child is receiving sub-basic care. RCW 13.34.020. That gives the City of Seattle no rights in this case. In fact basic care was never a court consideration in this case.
C. Termination is necessary when the parent fails to provide basic
care. Termination is only necessary when, notwithstanding the efforts of the
state to assist, the parent is unable to rise to the level of providing the child
basic/minimum nurture, health or safety, such that it is in the best interests of
the child to terminate its relationship with its parent(s). Churape, 43 Wn.App.
at 639. Termination is not considered a positive thing, but rather an unwanted,
but unavoidable, circumstance that is necessary for protecting the child. These
dependency and termination issues were never considered by the City.
City's Remedy could be found in RCW 13.34.040 by filing a dependency petition. (7) The city, the police, the city attorney, all could have filed dependency petitions if they thought there was cause for the state to interfere with or terminate the parent child relationship. They were to do this in the Kin County Superior Court. It is clearly contemplated that dependency proceedings are to be exclusively held before a special department fo the superior court, RCW 13.34.110. (8)
There are positive duties on the City Attorney as a law enforcement officer and the Police and in cases where they believe the State should consider the action it might take through shelter care, dependency or termination of parental rights. Definitions under RCW 26.44.020 concerning who must report describes these required reporters as: "(2) 'Law enforcement agency' means the police department, the prosecuting attorney, the state patrol, the director of public safety, or the office of the sheriff." This clearly encompasses the city attorney acting as a prosecutor in the Municipal Court. The City attorney and other city law enforcement officers are mandatory reporting person under RCW 26.44.030(1)(a) and (d). (9) This never happened. Nor did the other defendant, Mayovsky, make such a report, though he could have under RCW 26.44.030(3) (10) These are the proper procedures that would set in motion the whole state authority for interfering with Parent-child relationships and preserving her parental relationship and constitutional rights. As Monique Peterson was over sixteen at the time, she could have filed a petition for emancipation [RCW 13.64.010] in the Superior Court, where all the rights of the parties could have been examined, if she really was ready to live independently. But this was never done.
There are four elements that must be addressed in a public policy tort case, Sedlackek v. Hillis, 104 Wn.App., 1, 3 P.3rd 767 (2000): 1) The existence of a clear public policy; 2) conduct of the defendant that discouraged that public policy; 3) The discouragement of that public policy was a cause of the damages Victoria Peterson suffered; and 4) the defendant must be unable to offer an overriding justification for violating that public policy. Sedlackek, supra, 104 Wn.App. @ 17; Discomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002 (1989).
Victoria Peterson has both clear federal and state declarations of the public policy to protect her parental rights and the family rights. Case law supports the public policy, Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996), as well as statutory direction and constitutional mandates. The public policy in this case is clear beyond any doubt, Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984).
The Supreme Court in Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), held that a municipality can be held liable as a person under §1983 when it unconstitutionally implements or enforces "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by" the officers of that municipality. Id. at 690. The offending practice need not have the municipality's formal approval. Monell, 436 U.S. at 691. The requisite showing is satisfied by demonstration that the deliberate indifference is a persistent and widespread practice or course of action that characteristically was repeated under like circumstances. See Monell, 436 U.S. at 691. "A local governmental entity is liable under §§ 1983 when "action pursuant to official municipal policy of some nature causes a constitutional tort." Monell, 436 U.S. at 691.
To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy "amounts to deliberate indifference" to the plaintiff's constitutional right; and (4) that the policy is the "moving force behind the constitutional violation." City of Canton v. Harris, 489 U.S. at 389-91, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 01/15/1992).
In an appropriate case, even in the absence of formal agency conduct, an "official policy" may be inferred "from informal acts or omissions of supervisory municipal officials." Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 66 L. Ed. 2d 475, 101 S. Ct. 577 (1980). "The issue of authorization, approval or encouragement is generally one of fact, not law." Id. at 201. See also Owen v. City of Independence, 445 U.S. 622, 633-34 & n.13, 655 n.39, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980).
A "decision to adopt [a] particular course of action. . . by the government's authorized decisionmakers . . . surely represents an act of official government 'policy.' " Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). In other words, a policy is "a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id. at 483-84 (plurality opinion). Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 01/15/1992).
The existence of a policy, without more, is insufficient to trigger local government liability under section 1983. City of Canton, 489 U.S. at 388-89. Under City of Canton, before a local government entity may be held liable for failing to act to preserve a constitutional right, plaintiff must demonstrate that the official policy "evidences a 'deliberate indifference' " to his constitutional rights. Id. at 389. This occurs when the need for more or different action "is so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need." Id. at 390. Whether a local government entity has displayed a policy of deliberate indifference is generally a question for the jury. See Davis v. Mason County, 927 F.2d 1473, 1482 (9th Cir.), cert. denied, 116 L. Ed. 2d 227, 112 S. Ct. 275 (1991). Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 01/15/1992).
The plaintiff must demonstrate that defendants' policy was "closely related to the ultimate injury." City of Canton, 489 U.S. at 391; City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985) (" Monell must be taken to require . . . that a particular violation was 'caused' by the municipal 'policy.' "). Plaintiff need only demonstrate that "the identified deficiency . . . [is] closely related to the ultimate injury." City of Canton, 489 U.S. at 391. Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 01/15/1992).
The Supreme Court and other courts have held that liability may attach to the state through inaction or nonfeasance as well as through action and malfeasance. Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989) (holding that a failure to promulgate a policy may demonstrate deliberate indifference and be grounds for liability under §1983); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.1994) (en banc), cert. denied, 113 S. Ct. 1066, 122 L. Ed. 2d 371 (1993) ("We ... hold that a school official's liability arises ... when the student shows that the official, by action or inaction, demonstrates a deliberate indifference to his or her constitutional rights.") (emphasis supplied). Gonzalez v. Ysleta Indep. Sch. Dist. that "the "deliberate indifferent' requirement permits courts to separate omissions that "amount to an intentional choice' from those that are merely "unintentionally negligent oversights.' " 996 F.2d 745, 756 (5th Cir.1993), quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992); see also Salas v. Carpenter, 980 F.2d 299, 307 (5th Cir.1992). See also Temkin v. Frederick County Comm'rs, 945 F.2d 716, 722-23 (4th Cir.1991), cert. denied, --U.S. , 112 S. Ct. 1172, 117 L. Ed. 2d 417 (1992) (citing cases of deliberate indifference); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1145 (3d Cir.1990); White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979) (discussing liability based on gross negligence and reckless disregard for the safety of others).
Victoria Peterson's case is built around the unlawful and unconstitutional deprivation of Victoria Peterson's rights as a parent to the custody and control of her daughter, Monique Peterson. The entire defense of the Seattle Police must rest on the validity of the arrest of Victoria Peterson for the alleged assault on her daughter. From this arrest, the City built a case of domestic violence to support two no contact orders virtually depriving the mother of all her contact parental rights, even resulting in the loss of her child support through the Office of Support Enforcement and the help that could have given her child.
To show the Police had probable cause to arrest Victoria Peterson for assaulting her daughter, the Police had to have a case supporting a claim that the actions Victoria Peterson was alleged to have done to her daughter went beyond reasonable parental discipline and could be proved to be injurious to the child's health, welfare and safety. The Police had to prove that Victoria Peterson, who had every right to touch her daughter, used force that was unreasonable or immoderate. RCW 9A.16.100, State v. Russel, 69 Wn.App. 237, 246 n.4, 848 P.2d 743 (1993) review denied 122 Wn.2d 1003, 859 P.2d 603. There were no injuries so there was no evidence of any harm to Monique Peterson (Police Report, item 3 page 1 of exhibit to Havenar's declaration) In this case we are suing over the arrest related to the assault charges, not the other charges, because it was the assault charges that led to the wrongful issuance of the no-contact orders (NCOs) prohibiting contact with Monique Peterson. RCW 10.99.070 only gives police a limited, qualified, statutory immunity, Roy v. Everett, 118 Wn.2d 352, 823 P.2d 1084 (1992) and requires the finding of probable cause for the arrest, which cannot be done in this case.
What would be considered unreasonable or immoderate? There were no allegations that Monique Peterson's health was injured, or that she was unsafe, or that her welfare was threatened. RCW 26.44.010, Abuse of Dependent Persons, Declaration of Purpose:
Provided further, That this chapter shall not be construed to authorize interference with child-raising practices, including reasonable parental discipline, which are not proved to be injurious to the child's health, welfare and safety.
Victoria could have pushed Monique all day long and the city had no right to do anything about it unless it was "injurious to the child's health, welfare and safety."
According to Victoria Peterson, she advised the Sgt. O'Neil and Officer Havenar that she was Monique's mother but they ignored her. They had her driver's license, had gone through her purse, had gone through her car, and they still ignored her. Sgt O'Neil told her after doing all that "We don't know who you are. We really don't know if you are Monique Peterson's mother." (Victoria Peterson's Declaration August 17, 2001).
Furthermore, RCW 26.44.010 created at that time an affirmative duty, on the part of the City defendants, of care in investigation for which a private cause of action may lie if it is breached. The State and City's duty of care in investigation that is due to any child who is alleged to be the victim of abuse is extended to the parent suspected of the abuse. This is because the statute contemplates benefit to the family unit of both child and parent for protection against wrongful invasion of the parent-child relationship. This in turn implies a tort remedy in favor of the parent and that is consistent with the underlying purpose of the statute. Tyner v. State Dept. of Social and Health Services, CPS 141 Wn.2d 68, 1 P.3d 1148 (2000).
Just like Child Protective Services, the City of Seattle and the Police and other workers, owe a duty of care to the parents when investigating any child abuse cases involving the parents, and the Mayor and City Attorney owed that duty with the city when setting out policy on how those cases should be dealt with by the Police and any other city officials. Tyner, supra.. The assault case, while termed domestic violence, was merely a variant of a parental abuse case. A statute that creates a governmental duty to project particular individuals can be the basis for a negligence action against the City where the statute is violated and the injured party is one of the parties designed to be protected, Rodriguez v. Perez, 99 Wn.App. 439, 994 P.2d 874 (2000), review denied.
Either the Mayor and Seattle Police failed to properly instruct and supervise its patrol officers, or if they did inform the officers of this special protection the officers were to extend to parents, then the officers failed to follow their instructions (Exhibit 16, Campbell August Declaration) and failed to make as complete and thorough of a primary investigation as possible as instructed, taking into account all aspects of the incident regardless of nature. In addition, the City of Seattle, the City Attorney and the mayor, failed to have the proper safeguards in place to see that such errors on the part of the patrol members were not compounded into erroneous prosecutions by the city.
The City Defendants failed to accept the parental right to control the child. They failed to observe the parental right to touch the child. They failed to acknowledge the parental right to discipline the child. They did note that there were no injuries so there was no evidence of any harm to Monique Peterson (Police Report, item 3 page 1 of exhibit to Havenar's declaration). They failed to find any pattern of abuse, because there was none. They failed to heed the mother's desire to have the child removed from the Mayovsky premises. They failed to look at the police report on the other witness, Ms. Adams, and see that they could have problems with her veracity (Campbell Aug. 17, 2001 Declaration Ex. 18 CP 145-218). They failed to find any evidence that the actions of the mother towards Monique had been either immoderate or unreasonable. Under the circumstances, they cannot now claim that there was any probable cause for any arrest or prosecution for assault on Monique Peterson or make any domestic violence claim thereon.
The City's very limited evidence of assault starts with the statement of the uninjured Monique Peterson taken by T. J. Havenar at 11:19 pm on February 19, 1999, the time of Victoria Peterson's arrest (Havenar's Declaration CP 100-110): where Monique Peterson in her statement said:
She [Victoria Peterson] got out of her car, started walking toward the house. I asked her politely what she needed and she demanded for her mail and I said O.K. I opened the front door and she pushed her way in. I asked her to leave. She said no I will not leave. Then I placed my hand on her shoulder to ask her to leave she then pushed me and then she said don't push me. Then Terry asked her to leave. She didn't at first then she stepped outside. I got her mail walked her to the car. I went inside to my room. I heard her yelling. I went out side and talked to her asked her to leave. She wouldn't. I went inside and said call 9-1-1 on her.
T. J. Havenar described the assault: "Vict. Peterson attempted to escort the suspect out the front door by the arm, but the suspect spun around toward her and pushed her once on the upper chest with both hands and said "Don't shove me." This clearly is a permitted and benign parental correction.
Police may be sued under 42 U.S.C. §1983 on the basis for deprivation of civil rights for an arrest without probable cause, Gurno v. LaConner, 65 Wn.App. 218, 828 P.2d 49 (1992). A person has a constitutional right under the 4th Amendment not to be arrested without probable cause, Cook v. Sheldon, 41 F.3rd. 73 (2nd Cir 1994) that supports a claim under 42 U.S.C. §1983.
An officer can still be immune in a false arrest case under 42 U.S.C. §1983 if the arrest is proved to be without probable cause, if he can show either (1) it was objectively reasonable for him to believe he had probable cause; or (2) officers of reasonable competence could disagree over whether probable cause existed, Cook v. Sheldon, 41 F.3rd. 73, 78 (2nd Cir 1994). Obviously, neither O'Neil nor Havenar could met the first test if they knew Victoria Peterson was the mother of Monique Peterson. No evidence was presented to support the second exception.
Not only is there a good case for unlawful arrest, under 42 U.S.C. §1983 but also the evidence of a good case for malicious prosecution by the City defendants to support another claim under 42 U.S.C. §1983. 1. They were clearly contemplating a domestic violence charge against Ms. Peterson. 2. This proceeding ended in favor of the Victoria Peterson. 3. The Officers did not have probable cause to believe that Victoria Peterson committed the crime charged, and 4) they acted with malice, Cook v. Sheldon, 41 F.3rd. @ 79 (2nd Cir 1994). The first three elements are clear. Where is the malice? They lied about not knowing that Victoria was the mother. They obviously did not want to assist her in regaining control over her daughter's life through any action under RCW Chapter 13.32A, the Family Reconciliation Act and they wanted to cover their tracks in false arrest claim.
In 1995 the Legislature enacted some strong language in RCW 13.32A.030 confirming parent's rights to lay down the law in the family. (11) The legislature sought to give parents, courts and law enforcement the tools to work to keep families together [RCW 13.32A.010 (12)] but the City of Seattle defendants ignored them.
The Seattle Police including Sgt. O'Neil and Officer Havenar violated their duties to Victoria Peterson under RCW Chapter 13.32A, the Family Reconciliation Act, after they were told that Monique Peterson was being harbored by Mayovsky without Victoria's consent. They at that point they had a duty to take some action. They failed to take Monique Peterson into custody as authorized by RCW 13.32A.050. (13) RCW 13.32A.050 defines exactly what the Police should have done in this case. But they left the minor teenager with an unrelated adult male over twice her age.
In 1999 the law relating to what the officers should have done was also set forth in RCW 13.32A.060. (14) The officers should have transported Monique Peterson home, to a residential crisis center, to the custody of the DSHS or to a juvenile detention center.
Mr. Mayovsky could not be considered "responsible adult" to leave the child with because his home is were Monique had absented herself to without her parent's consent and he certainly was not an extended family member as defined in section (3) of RCW 13.32A.060 as it then read. They should have brought Monique Peterson home to be with her mother as there was no evidence or reasonable grounds to believe they could find evidence of child abuse or neglect as defined in RCW 26.44.020.
In Rodriguez v. Perez, 99 Wn.App. 439, 994 P.2d 874 (2000) the court held that law enforcement officers and agencies are subject to liability for negligent investigation of child abuse allegations based on the duties they owe both to the children suspected of being abused and their parents or custodians. The Seattle Police did own a duty of care to directly Victoria Peterson in this case. Rodriguez starting at 99 Wn.App. @ 443:
The Legislature , however, has created a limited exception in the area of child abuse investigations by imposing a duty to investigate for the protection of a specific class, See Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991); Corbally v. Kennewick Sch. Dist., 94 Wn.App. 736, 740, 973 P.2d 1074 (1999); Lesley v. Department of Social & Health Services. 83 Wn.App. 263, 921 P.2d 1066 (1996). RCW 26.44.050 requires a law enforcement agency or DSHS to investigate possible occurrences of child abuse or neglect. That duty derives from the paramount importance that is placed on the welfare of the child.
The legislature has emphasized the importance of protecting the relationship between parent and child and interfering with that relationship only when the child's health and safety are endangered.
The bond between a child and his or her parent . . . is of paramount importance, and any intervention into the life of a child is also an intervention into the life of the parent[.]
[RCW 26.44.010 cited] ....
When a duty is owed to a specific individual or class of individuals, that person or persons may bring an action in negligence for breach of that duty. [cases cited]
By specifically including parents, custodians, and guardians of children "within the class of persons who are foreseeably harmed by a negligent investigation into allegations of child abuse[,]" the Legislature has recognized a duty to the parent as well as the child in conducting child abuse investigations. [Tyner case sited]. Thus, both the children who are suspected of being abused and their parents comprise a protected class under RCW 26.44 and may bring action for negligent investigation under that statute.
The City Attorney's office, headed by Mark Sidran, and the Domestic Violence Unit, headed by Judith Shoshana, were involved in obtaining two no contact orders against Victoria Peterson. One was issued on February 21, 1999 at the time the assault charges were filed. Initially it extended until August 21, 1999, but it expired by law when the charges were dismissed on April 20, 2000. A second one was applied for by the City Attorney and was issued on April 20, 1999, at the time the assault charge was dismissed.
The former NCO might have some justification under RCW 10.99.040(2)(a) or Seattle Municipal Code (SMC) 12A.06.130 then in effect where the court "may prohibit that person from having any contact with the victim." It is not mandatory, but is allowed, if the prosecution was proper.
Neither the SMC 12A.06.130 nor RCW 10.99.040 offer any applicable guidelines on what to consider in allowing and NCO or what evidence rules and standard of proof used or conclusions of law should be found in allowing NCO's. Thus both the statute and the municipal code section clearly violate the constitutional protections of due process.
The only considerations required by the court are in issuing NCO's in domestic violence actions are restrictions on fire arms, SMC 12.06.195 and RCW 9A.04.110. At no time under City ordinances was the parent entitled to the minimal constitutionally required due process notices and hearings such as those required in Shelter Care, Dependency and Termination Proceedings, RCW 13.34.060 [now embodied in RCW 13.34.062] and RCW13.34.180. This would appear to be the minimal requirements under the due process clauses of both the 14th Amendment and Art 1 §3 of the Washington State Constitution.
The initial no contact orders should have terminated on April 20, 1999 when the charges of assaulting Monique Peterson were dismissed with prejudice. RCW 10.99.040(3) provides that "The no-contact order shall terminate if the defendant is acquitted or the charges are dismissed." SMC 12A.06.130 has a similar provision. But the City applied for and received a new two year NCO thereby continuing to invade the parental child relationship.
There is no provision for entering the second NCO under either RCW 10.99.040 or SMC 12A.06.130. There is some provision for the issuance of such an order under SMC 12A.06.160 but such a proceeding was never initiated and no hearing required under its provisions was ever held. Those provisions would have required a hearing separate from the criminal charges. Any action by the City Attorney's office in continuing the NCO on Monique Peterson after the assault charges were dismissed can be more accurately described as malicious prosecution and malicious abuse of process. The malicious prosecution occurred when the City Attorney's office requested the second NCO and the malicious abuse of process in the actions taken by the prosecutors office and ms. Shoshana after that order was issued, Cook v. Sheldon, supra., 41 F.3rd @ 80.
On issuance of the second NCO the City Attorney's office took on the tasks of "social workers" advocating Monique Peterson's private desires. Starting at least in June, 1999, Ms. Shoshana (15) stepped out of any mere supervisory role, and became actively involved in the case. She refused to drop this no-contact order even though the charges involving Monique Peterson had been dismissed with prejudice and there was no domestic violence charge or conviction [RCW 10.99.050(1), SMC 12A.06.130]to support such an order. At a meeting in November, 1999, she advised Victoria Peterson to file an alienation of affection action against Mr. Mayovsky and said she would talk with another City employee about contacting Monique Peterson to see if Monique would agree to the lifting of the NCO. She did not advise Victoria Peterson in the November, 1999, meeting that Victoria Peterson could move to get the NCO lifted.
Examining several documents from the City's records, Campbell Declaration August 16, 2001 (CP 43) we find: The Lewis memorandum clearly shows the city had no additional information to support an assault charge against Victoria Peterson. The Shoshana letter of June 19th clearly appears to admit that the City never had any ability to offer any services, after its intrusion, to heal the family relationship. There are also a number of internal notes from the City's files, apparently prepared by Karen Irish, indicating that the real force behind the continuation of the no contact order was the City siding with a minor child against her mother. This is reflected in the record of several telephone conversations after the assault case was dismissed. The Shoshana letter to Ms. Rector of June 30, 2000 stated she would not "agree to drop the no contact order." The city attorney's office was trying to act as a social worker investigator and child advocate for Monique Peterson, not a criminal law advocate.
The second letter is a virtual admission that the City never extended to Victoria Peterson nor even had any policy to extend to her the care and protection she was entitled to by law. Ms. Shoshana, Director of the Domestic Violence Unit said: "In a criminal matter, we do not bring the victims of the crime to meet the defendants. We don't encourage mediation in domestic violence cases either."
Mrs Shoshana went on to say "To clarify, the child was not given the responsibility to issue a no contact order, the court had that responsibility and chose to issue it at our request. [emphasis added]" The emphasized portion of the letter is an important admission on behalf of the City and the City Attorneys. The Court did not automatically issue no contact orders. The City Attorney's office had to request them. Ms. Shoshana confirmed by letter to Ms. Rector on June 30, 2001, that the City would resist any attempt to lift the no contact order.
Even a liberal reading of state statutes in favor of the city never gave
the municipal court jurisdiction in terminating parental rights, Juvenile Court
Act, RCW 13.04.030. (16)
Currently the leading case in the area of prosecutorial immunity in 42
U.S.C. § 1983 claims arose in King County and was finally decided in the
United States Supreme Court: Kalina v. Fletcher, 522 U.S. 118, 139 L.ed.2d
471, 118 S.Ct. 502 (1997). The text of 42 U.S.C. § 1983 creates damages
remedies against every state official for the violation of any person's federal
constitutional or statutory rights. The court held that in determining whether
absolute prosecutorial immunity applied to a given prosecutor, the court
would look to the nature of the functions performed, not to the identity of the
actor who performed it. The case held that the prosecutor enjoys absolute
immunity when performing traditional functions of an advocate within the
scope of his authority, but is protected only by qualified immunity when he
is not acting as an advocate. In addition to the deficiencies set forth above, the standard policy
issued by the Seattle City Attorney's Office Criminal Division, makes no
provisions for handling cases involving parent-child no contact restrictions
in any different way than any other cases even though fundamental
constitutional rights are involved [ Campbell declaration CP 43, exhibit 15,
page 3 part IV A]. In Kalina court 522 U.S. @ 123, relying on the earlier case of Imbler
v. Pachtman, 424 U.S. 409, 410, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the
court noted: Relying in part on common-law precedent, and perhaps even
more importantly on the policy considerations underlying that
precedent, we conclude that 'a state prosecuting attorney who acted
within the scope of his duties in initiating and pursuing a criminal
prosecution' was not amenable to suit under §1983. Clearly, after the assault case against Victoria Peterson was dismissed, the
City Attorney had no authority to continue to hound her with no-contact
orders and such continuation was malicious harassment outside of the scope
of City Attorney's duties. The City Attorney could have filed a petition for
a protective no contact order under SMC 12A.06.160 which would have
required a hearing separate from any criminal charges, but never chose to do
that. In fact, the City defendants at the very start could have referred the
whole matter to CPS and stepped out of it, but never chose that role. The Kalina court 522 U.S. @ 125, upheld the distinction between the
prosecutor as the advocate entitled to absolute immunity and the prosecutor
as the "administrator or investigative officer." See Imbler v. Pachtman, 424
U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). For example, providing
legal advice during police investigations is only protected by qualified
immunity, Burns v. Reed, 500 U.S. 478, 492-496, 111 S.Ct. 1934, 114
L.Ed.2d 547 (1991). Nor is a prosecutor acting as an advocate when he is
conducting a press conference, Buckley v. Fitsimmons, 509 U.S. 259, 276-278, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). He is certainly not acting as
an advocate when he is pursuing no contact orders not authorized by law. The language of RCW 4.96.010 (17) could not be plainer. It does not
matter whether the action of the City of Seattle was in its governmental or
proprietary capacity. It has no immunity in this case. This broad waiver of
sovereign immunity starting with the State's waiver in 1961, has been
recognized since Kelso v. Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964). The
waiver clearly applies in this case, Savage v. State, 127 Wn.2d 434, 899 P.2d
1270 (1995) reconsideration denied; andBabcock v. State, 116 Wn.2d 596,
809 P.2d 143 (1991) Reconsideration denied. These cases make it clear that
the City cannot rely on any qualified personal immunity granted to any of its
agents, police or prosecutors to clothe it in immunity. Restatement of Torts 2d, §700: One who with knowledge that the parent does not consent, abducts or
otherwise compels or induces a minor child to leave a parent legally
entitled to its custody or not return to the parent after it has left him,
is subject to liability to the parent. COMMENT (b): Unless the actor is privileged, on which see comment e and f,
his motive or purpose in preventing the child from returning home or
inducing it not to return, is immaterial. Thus the actor may be
inspired by motives of kindness and affection toward the child but
none the less become liable for interfering with the interests of its
lawful custodian. Defendant has pleaded no affirmative defenses of privilege. The commonlaw torts of harboring and enticing were recognized in
the State of Washington almost 100 years ago in the case of Magnuson v.
O'Dea, 75 Wash 574, 135 P.2d 640, 48 L.R.A.N.S. 327, Ann.Cas 1915B,
1230 (1913). The continued existence of these rights of action was again
recognized in Strode v. Gleason, 9 Wn.App. 13, 15, 510 P.2d 250 (1973): The commonlaw held liable anyone who intentionally interfered with
the custody of children by abducting a child, enticing a child away or
harboring a child who had left the home against the wishes of the
parent. The parent was required to prove deprivation of the services
or custody of the child by the actions of the defendant; but having
proven this element, the parent was then also entitled to damages for
loss of society of the child and for accompanying mental distress.
(Cites Manson, supra.) The torts of harboring and enticing are actions for trespass on the case
for the "loss of the value of the services of a minor child" together with the
Victoria Peterson's own mental and emotional damages and expenses
attendant to these problems including getting the child back. Harper and
James, The Law of Torts (1957) Vol. 1 p 627. At 628 the authors observed: "It is to be observed that the invasion of the parent's interest in these
cases is an intended invasion, although the intent of the defendant
need not be malicious or even wrongful, except in the case of
harboring an unemancipated child, in which case the defendant's
ignorance of the fact that the child has run away from its home will
constitute a defense to the action. The consent of the child in these
actions is, of course, no defense, since the parent is seeking recovery,
not for the wrong to the child, but for the invasion of his personal
interests, as parent. By the turn of the century when Magnuson was decided, the courts were
moving away from the necessity of even proving loss of services, Washburn
v. Abrams, 122 Ky 53, 90 S.W. 997 (1906) [harboring] and Selman v.
Barnett, 4 Ga.App. 375, 61 S.E. 501 (1908) [enticing], Harper and James,
supra. These offenses were well within our pleading and do not rely on
proving any loss of affections. Strode, supra, expanded the original torts of kidnaping, enticing and
harboring to new areas of interference with parental rights. However those
are new torts require malice as a further element. The old torts do not require
that added element. While the action was technically for loss of services that should no
longer be considered the thrust of the action. Harper and James, The Law of
Torts (1957) Vol. 1 p 627 in reviewing case law observed: "That no loss of service was necessary and that 'for the direct injury
done, a direct recovery may be had without resort to the fiction that a
loss of services has been sustained.' [case cited] Other courts have
reached practically the same result by holding that it is only necessary
to show that a parent has a right to the child's services regardless of
whether any service was actually done or whether the child was
capable of rendering service at all. [cases cited] The same rule has
been applied to the harboring [citation] or enticing [citation] a child
from its home. The frank recognition of the parent's interest as a
parent seems highly desirable and should be protected, at least against
intended invasions of that interest....It is not subject to the objection
of innumerable actions based on mental distress. It is only the parent
or one in his position who can bring the action and the harm
recognized is not only the emotional suffering as such, but the injury
to the parental relation. [citations]" See also Speiser, Krause & Gans 17 The American Law of Torts, § 22.12.
Malice is not a part of our action. See Harper and James, The Law of
Torts (1957) Vol. 1 p 628: "It is to be observed that the invasion of the parent's interest in these
cases is an intended invasion, although the intent of the defendant
need not be malicious or even wrongful, except in the case of
harboring an unemancipated child, in which case the defendant's
ignorance of the fact that the child has run away from its home will
constitute a defense to the action. The consent of the child in these
actions is, of course, no defense, since the parent is seeking recovery,
not for the wrong to the child, but for the invasion of his personal
interests, as parent. SUFFICIENCY OF PLEADINGS In making ER 904 rulings, motions in limine rulings, evidentiary
rulings, rulings interpreting the pleadings and rulings on pleading
amendments, the court repeatedly refused to let the Victoria Peterson frame
her case as a case for harboring and enticement, intentional custodial
interference. The pleadings were themselves sufficient to support that case.
CR 8 states: (a) Claims for Relief. A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, cross claim, or third party
claim, shall contain (1) a short and plain statement of the claim
showing that the pleader is entitled to relief and (2) a demand for
judgment for the relief to which he deems himself entitled. Relief in
the alternative or of several different types may be demanded. Orland and Tegland, 3A Washington Practice 4th Ed, Rules of Practice
p. 126 observe: "The spirit of the new rules would appear to permit the pleader to
shift the theory of his case as the facts develop so long as he fairly
informed his opponent of the transaction or "aggregate of operative
facts" involved in the litigation." This was done. Defendant always knew that this case involved
Terrance Mayovsky's standing in the way of Victoria Peterson's custodial
rights to her daughter and that his actions damaged her. The case was even
tried on these facts, without objection. The defendant admitted that Victoria
Peterson was the natural mother of Monique Peterson. Monique Peterson
stayed at the home of Mr. Mayovsky without her mother's consent. Mr.
Mayovsky testified that he paid Monique to do chores around his home.
These were all services Ms. Victoria Peterson was not getting. There was
absolutely no factual basis for the court finding that Victoria Peterson was not
deprived of her daughter's services. Victoria Peterson's "care, custody and control" of Monique Peterson
was alleged in the first paragraph of the complaint (CP 1-14, see also
paragraph 12.) Mr. Mayovsky was alleged to have continued to "encourage
and foster an unnatural relationship of influence and control over" Monique
Peterson, paragraph 2 of the complaint. She alleged that the " needs to reunite
her family purposefully thwarted..." paragraph 19. She alleged that she was
deprived "of any contact with her daughter through her last two years of
childhood...." paragraph 19. She alleged that "Defendant Mayovsky
wantonly and willfully participated in, encouraged and promoted the
interference with the parent child relationship of Victoria Peterson with her
daughter to Victoria Peterson's damages as alleged herein." Paragraph 24.
By way of damages she alleged that "her right and benefits as a parent to
enjoy the companionship of the last two years of childhood of her daughter
have been destroyed, never to be restored,..." This obviously covers the right
and benefit to her daughter's services in that companionship. All of the
elements of harboring and enticing were covered by the initial complaint. These pleadings clearly meet the requirements set forth in Dumas v.
Gagner, 137 Wn.2d 268, 282, 971 P.2d 17 (1999): "Under this court's rules
of procedure, 'pleadings are primarily intended to give notice to the court and
the opponent of the general nature of the claim asserted....." In North Coast
v. Factoria, 94 Wn.App. 855, 861, 974 P.2d 1257 (1999) the court observed
"Although courts generally construe pleadings liberally, the civil rules require
that a party's pleadings give notice "'that is sufficient to advise the other party
of the event being sued upon.'" Clearly the events and date of February 19,
1999 and the results of those events were pleaded in the complaint, see
specifically (CP 1-14) paragraphs 3, 8, 9, 16, 17, 18, 19, 23, 24, 25, 26 and
28. We should have been allowed to present the case on harboring to the jury.
"The Victoria Peterson has presented the theory of recovery without
identifying it specifically, and should be permitted full and fair opportunity
to present evidence under that theory" Potter v. Van Waters & Rogers, 19
Wn.App. 746, 754, 578 P.2d 859 (1978). Victoria Peterson's entire case on harboring was presented by
evidence at trial that was not objected to. A party may not permit without
objection the introduction of evidence beyond the pleadings and thereafter
claim error because the theory relied on for judgment was not pleaded.
Jensen v. Ledgett, 15, Wn.App. 552, 555, 550 P.2d 1175 (1976). Where
evidence raising issues beyond the scope of the pleadings is admitted without
objection, pleadings will be deemed amended to conform to proof,Reichelt v.
Johns-Manville Corp. 107 Wn.2d 761, 733 P.2d 530 (1987). There was no
basis what so ever for refusing to submit the case to the jury on the theory of
harboring. Because the court failed to view the pleadings as encompassing the
torts of harboring and enticing, and because the court failed to allow the
Victoria Peterson to conform any possible deficiencies in the pleadings to the
proof that was admitted at trial without objection, the court has committed
errors of law. The court was obligated to grant a new trial to correct the
erroneous statements of law, Schneider v. Seattle, 24 Wn.App. 251, 600 P.2d
666 (1979); Vern J. Oja & Associates v. Washington Park Towers, 15
Wn.App. 356, 549 P.2d 63 (1976); Bitzman v. Parisi, 14 Wn.App. 791, 545
P.2d 578 (1975). Court's instruction (CP 813-824) No. 2 required Victoria Peterson to
prove that "an existing family relationship existed between" her and her
daughter. This existed as a matter of law and was confirmed by Exhibit No.
1 which the court refused to admit. It required proof that Mr. Mayovsky acted
maliciously, which is unnecessary in the torts of harboring and enticement.
Instruction No. 3 went further and told the jury that Ms. Peterson had to prove
that Mr. Mayovsky intentionally interfered "with the parent-child
relationship...with the intent to cause the parent to lose the affections" of her
child. Instruction No. 2 also required her to prove that there was love loss
between the daughter and the mother, loss of affection, which is not required
to recognize parental rights and is not required by law of any family
relationship. These instruction totally ignore any parental rights protected by
the constitution and the laws of this state as set for above, and were objected
to and accepted at the time the court proposed to give them (RP 447:22-448:13). The court abused its discretion in this case by putting Victoria
Peterson on trail, by not recognizing her custodial rights, by putting her
parenting skills on trial, by subjecting her rights to care, custody and control
of her daughter, discipline of her daughter to the emotional affections and
emotional responses of her daughter and refusing to direct the jury to the
heart of this case, the denial of the Superior Court recognized and
constitutionally protected parental rights of Victoria Peterson. This framing
of Victoria Peterson's case by the court, over the repeated objections and
motions of the Appellant, but in accordance with the demands of the
defendant, deprived Ms. Victoria Peterson to a fair trial. Had this trial gone
forward on the theories of harboring and enticing there could have been
absolutely no evidence or reasonable inference from the evidence to justify
the verdict and it is contrary to law. Confirmation of such a judicial approach
to parental rights clearly goes to undermine all parental control and discipline
of minor children in this state. The case against the City Defendants on malicious prosecution, public
policy tort and Civil Rights, 42 U.S.C. § 1983 should not have been dismissed
and should go forward to trial, if parental rights to control and discipline their
own children are to be preserved in this state. July 21, 2002 Edward D. Campbell, W.S.B.A. #439 Attorney for Victoria Peterson 1. ---
2. '
'
" " " "
-
3. '
'
§
§
'
§
§
---
§
§
'
'
4.
'
"
'
" -
5.
§
§ § §
6.
-
7. "
"
10.
"
13. (4) If the law enforcement officer who initially takes the juvenile
into custody or the staff of the crisis residential center have
reasonable cause to believe that the child is absent from home
because he or she is abused or neglected, a report shall be made
immediately to the department.
14. --
--
-- --
-- --
-
(1) An officer taking a child into custody under RCW 13.32A.050(1) or (2) shall inform the child of the reason for such custody and shall either:
(a) Transport the child to his or her home or to a parent at his or her place of employment, if no parent is at home. The officer releasing a child into the custody of the parent shall inform the parent of the reason for the taking of the child into custody and shall inform the child and the parent of the nature and location of appropriate services available in their community, or
(b) Take the child to the home of an adult extended family member, a designated crisis residential center, or the home of a responsible adult after attempting to notify the parent or legal guardian;
(i) If the child expresses fear or distress at the prospect of being returned to his or her home which leads the officer to believe there is a possibility that the child is experiencing in the home some type of child abuse or neglect, as defined in RCW 26.44.020, as now or hereafter amended; or
(ii) If it is not practical to transport the child to his or her home; or
(iii) If there is no parent available to accept custody of the child.
16. (1) Except as provided in this section, the juvenile courts in this state shall
have exclusive original jurisdiction over all proceedings:
--
(a) Under the interstate compact on placement of children as provided in chapter 26.34 RCW;
(b) Relating to children alleged or found to be dependent as provided in chapter 26.44 RCW and in RCW 13.34.030 through *13.34.170;
(c) Relating to the termination of a parent and child relationship as provided in RCW 13.34.180 through 13.34.210;
(d) To approve or disapprove out-of-home placement as provided in RCW 13.32A.170;
(e) Relating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020 through 13.40.230, unless:
(i) The juvenile court transfers jurisdiction of a particular juvenile to adult criminal court pursuant to RCW 13.40.110;
(ii) The statute of limitations applicable to adult prosecution for the offense, traffic or civil infraction, or violation has expired;
(iii) The alleged offense or infraction is a traffic, fish, boating, or game offense, or traffic or civil infraction committed by a juvenile sixteen years of age or older and would, if committed by an adult, be tried or heard in a court of limited jurisdiction, in which instance the appropriate court of limited jurisdiction shall have jurisdiction over the alleged offense or infraction, and no guardian ad litem is required in any such proceeding due to the juvenile's age: PROVIDED, That if such an alleged offense or infraction and an alleged offense or infraction subject to juvenile court jurisdiction arise out of the same event or incident, the juvenile court may have jurisdiction of both matters: PROVIDED FURTHER, That the jurisdiction under this subsection does not constitute "transfer" or a "decline" for purposes of RCW 13.40.110(1) or (e)(i) of this subsection: PROVIDED FURTHER, That courts of limited jurisdiction which confine juveniles for an alleged offense or infraction may place juveniles in juvenile detention facilities under an agreement with the officials responsible for the administration of the juvenile detention facility in RCW 13.04.035 and 13.20.060;
(iv) The alleged offense is a traffic or civil infraction, a violation of compulsory school attendance provisions under chapter 28A.225 RCW, or a misdemeanor, and a court of limited jurisdiction has assumed concurrent jurisdiction over those offenses as provided in RCW 13.04.0301; or
(v) The juvenile is sixteen or seventeen years old and the alleged offense is:
(A) A serious violent offense as defined in RCW 9.94A.030;
(B) A violent offense as defined in RCW 9.94A.030 and the juvenile has a criminal history consisting of: (I) One or more prior serious violent offenses; (II) two or more prior violent offenses; or (III) three or more of any combination of the following offenses: Any class A felony, any class B felony, vehicular assault, or manslaughter in the second degree, all of which must have been committed after the juvenile's thirteenth birthday and prosecuted separately;
(C) Robbery in the first degree, rape of a child in the first degree, or drive-by shooting, committed on or after July 1, 1997;
(D) Burglary in the first degree committed on or after July 1, 1997, and the juvenile has a criminal history consisting of one or more prior felony or misdemeanor offenses; or
(E) Any violent offense as defined in RCW 9.94A.030 committed on or after July 1, 1997, and the juvenile is alleged to have been armed with a firearm.
In such a case the adult criminal court shall have exclusive original jurisdiction.
If the juvenile challenges the state's determination of the juvenile's criminal history under (e)(v) of this subsection, the state may establish the offender's criminal history by a preponderance of the evidence. If the criminal history consists of adjudications entered upon a plea of guilty, the state shall not bear a burden of establishing the knowing and voluntariness of the plea;
(f) Under the interstate compact on juveniles as provided in chapter 13.24 RCW;
(g) Relating to termination of a diversion agreement under RCW 13.40.080, including a proceeding in which the divertee has attained eighteen years of age;
(h) Relating to court validation of a voluntary consent to an out-of-home placement under chapter 13.34 RCW, by the parent or Indian custodian of an Indian child, except if the parent or Indian custodian and child are residents of or domiciled within the boundaries of a federally recognized Indian reservation over which the tribe exercises exclusive jurisdiction;
(i) Relating to petitions to compel disclosure of information filed by the department of social and health services pursuant to RCW 74.13.042 and
(j) Relating to judicial determinations and permanency planning hearings involving developmentally disabled children who have been placed in out-of-home care pursuant to a voluntary placement agreement between the child's parent, guardian, or legal custodian and the department of social and health services.
(2) The family court shall have concurrent original jurisdiction with the juvenile court over all proceedings under this section if the superior court judges of a county authorize concurrent jurisdiction as provided in RCW 26.12.010.
(3) The juvenile court shall have concurrent original jurisdiction with the family court over child custody proceedings under chapter 26.10 RCW as provided for in RCW 13.34.155.
(4) A juvenile subject to adult superior court jurisdiction under subsection (1)(e)(i) through (v) of this section, who is detained pending trial, may be detained in a detention facility as defined in RCW 13.40.020 pending sentencing or a dismissal.
[2000 c 135 §§ 2. Prior: 1997 c 386 §§ 17; 1997 c 341 §§ 3; 1997 c 338 §§ 7; prior: 1995 c 312 §§ 39; 1995 c 311 §§ 15; 1994 sp.s. c 7 §§ 519; 1988 c 14 §§ 1; 1987 c 170 §§ 1; 1985 c 354 §§ 29; 1984 c 272 §§ 1; 1981 c 299 §§ 1; 1980 c 128 §§ 6; 1979 c 155 §§ 3; 1977 ex.s. c 291 §§ 4; 1937 c 65 §§ 1; 1929 c 176 §§ 1; 1921 c 135 §§ 1; 1913 c 160 §§ 2; RRS §§ 1987-2.]
17.
--
-