IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AMINA J. CONDEL,

Respondent,

v.

FRANK GARRETT CONDEL,

Appellant.

No. 84310-9-I 

DIVISION ONE

UNPUBLISHED OPINION

SMITH, C.J. — Amina and Frank Garrett Condel1 married in 1999 and have 

four children together. After enduring years of abuse, Amina petitioned for a 

domestic violence protection order (DVPO) for herself and their children. After a 

contested hearing, a court commissioner granted her petition, entered a DVPO, 

and ordered Garrett to surrender any weapons and attend a domestic violence 

treatment program. The commissioner denied Garrett’s motion for 

reconsideration and a judge denied his motion for revision. On appeal, Garrett 

raises a number of challenges, both procedural and substantive. Finding no 

merit in his contentions, we affirm.

FACTS

Amina and Garrett Condel married in 1999 and have four children 

together: B.C., G.C., J.C., and L.C. Three of the children are minors and L.C. is 

an adult with autism, dependent on her parents for care.

 

1 For clarity, we refer to the parties by their preferred first names—in 

Mr. Condel’s case, his middle name—because they share a last name.
No. 84310-9-I/2

2

Soon after the parties married, Garrett became physically and 

psychologically abusive toward Amina. His behavior escalated over the years to 

eventually involve the parties’ children. Garrett’s aggressive behavior caused 

Amina to “live in extreme fear for [her] life and [the] children’s lives.” Amina’s 

situation only worsened with the onset of the COVID-192 pandemic. Forced to 

remain at home with Garrett, his controlling and abusive behavior became 

unbearable.

In March 2022, Amina petitioned for a domestic violence protection order 

(DVPO) for herself and the children. Amina’s declaration in support of the DVPO 

detailed years of abuse directed at her and the children. She stated that Garrett 

first became aggressive during their first year of marriage and that when Garrett 

got upset, “he would often wrap his arms around [Amina] and physically hold 

[her] against her will . . . so that [she] could not move or escape.” She described 

that over the years, Garrett habitually abused her, calling her crude names and 

being generally demeaning. She also alleged that Garrett used “threatening 

body language to intimidate [her],” including charging after her and putting his 

face aggressively close to hers.

On July 17, 2019, in what Amina described as “[o]ne of the scariest 

incidents,” Garrett “slapped [her] hand with so much force that his finger jabbed 

into [Amina’s] eye and [her] head slammed backwards and struck the frame of 

[her] bedroom door.” Amina experienced eye pain “non-stop” for a month and 

 

2 COVID-19 is the World Health Organization’s official name for 

“coronavirus disease 2019,” a severe, highly contagious respiratory illness that 

quickly spread throughout the world after being discovered in December 2019.
No. 84310-9-I/3

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received medical care for her eye and head injuries.

Amina recounted several incidents of violence against her witnessed by 

the children. For example, in November 2019, when Amina asked G.C. to leave 

the garage to go to bed, Garrett “came charging toward the door and slammed 

the door on [Amina’s] right arm and side.” And in March 2020, during an 

argument about finances, Garrett suddenly “sprung up from his chair and the 

chair slammed down hard on [Amina’s] foot.” Amina cried out in pain and the 

children “ran to [her] to see if [she] was ok, and [Amina] cried for several 

minutes.”

Amina’s declaration also contained several examples of violence directed 

towards the parties’ children. For instance, in March 2018, Garrett “got physically 

aggressive with GC by slapping his leg.” A few days later, “Garrett became 

physically aggressive with LC by slapping, grabbing and being rough with her 

and scaring her to the point where she was shaking and crying.” In total, Amina’s 

declaration contained more than 20 accounts of violence towards her or the 

children.

Garrett denied committing any acts of violence towards Amina or the 

children and claimed that “notwithstanding her hyperbolic melodrama, Amina has 

never been frightened of [him] in any way whatsoever.” Garrett noted that while 

he had been raised “in a loving family with no exposure to domestic violence,” 

Amina was “raised by a single mother” and “had been the victim of multiple 

childhood traumatic events.” Garrett stated that he believed “these unfortunate 

childhood experiences have had a detrimental impact on [Amina’s] personality, 
No. 84310-9-I/4

4

her perceptions, and her views about parenting.” In support of his position, 

Garrett provided excerpts from his daily journal, which he said he “felt compelled 

to start keeping . . . to protect [himself] from [Amina’s] fabrications.”

At the DVPO hearing before a court commissioner, the court concluded 

that Amina met her burden of proving Garrett had perpetrated acts of domestic 

violence. The court specially highlighted the July 17 eye injury incident as 

supporting a DVPO’s entry and noted that it found Amina’s version of events to 

be more credible than Garrett’s. The court found that the children were present 

for many of the incidents alleged in Amina’s petition, including the one on 

July 17, and that this exposure constituted domestic violence against the 

children. The court noted that an incident on December 15, 2019—in which 

Garrett was alleged to have grabbed J.C. around the neck—warranted including 

the children in the DVPO. The court concluded that Garrett presented a credible 

threat to Amina and granted her petition. It also ordered Garrett to surrender any 

weapons in his possession and attend a domestic violence treatment program. 

Finally, the court stated that the DVPO was subject to any visitation rights 

granted in the parties’ ongoing dissolution proceeding.

Garrett moved for reconsideration, which the commissioner denied. He 

then moved for revision, which a superior court judge denied.

ANALYSIS

Standard of Review

A court commissioner’s decision is subject to revision by the superior 

court. RCW 2.24.050. On a motion to revise, the superior court reviews the 
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commissioner’s findings of fact and conclusions of law de novo based on the 

evidence and issues presented to the commissioner. In re Marriage of Moody, 

137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). “A revision denial constitutes an 

adoption of the commissioner’s decision, and the court is not required to enter 

separate findings and conclusions.” Maldonado v. Maldonado, 197 Wn. App. 

779, 789, 391 P.3d 546 (2017). On appeal, we review the superior court’s ruling, 

not that of the commissioner. Maldonado, 197 Wn. App. at 789, 791. 

We review the superior court’s decision to grant a domestic violence 

protection order for an abuse of discretion. In re Marriage of Stewart, 133 Wn. 

App. 545, 550, 137 P.3d 25 (2006). The court abuses its discretion if its decision 

is manifestly unreasonable or based on untenable grounds or untenable reasons. 

In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). Where, 

as here, the court weighed contradictory evidence, “[w]e review the superior 

court’s findings for substantial evidence,” and defer to the trier of fact on 

questions of witness credibility, conflicting testimony, and persuasiveness of the 

evidence. In re Vulnerable Adult Petition for Knight, 178 Wn. App. 929, 936-37, 

317 P.3d 1068 (2014). Evidence is “substantial” when it is sufficient to persuade 

a fair-minded person of the truth of the matter asserted. In re Marriage of Black, 

188 Wn.2d 114, 127, 392 P.3d 1041 (2017).

Motions to Refer

Garrett argues the court abused its discretion by refusing to rule on his 

motions to file a report with law enforcement or the Department of Social and 

Health Services (DSHS) or to refer the case to Family Court Services (FCS). We 
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disagree. The court effectively denied Garrett’s motions by granting the DVPO 

petition.

RCW 26.12.170 provides that the court “may” file a report with law 

enforcement or DSHS if it has reasonable cause to believe that a child of the 

parties has suffered abuse or neglect. It also provides that the court “may” order 

or recommend Family Court Services. RCW 26.12.170. The statute grants the 

court the ability to make a referral. Therefore, we review the court’s 

determination for an abuse of discretion. See In re Guardianship of Johnson, 

112 Wn. App. 384, 387-88, 48 P.3d 1029 (2002).

Here, the court did not file a report with law enforcement or DSHS and did 

not refer the parties to FCS for an assessment. Instead, after finding that Garrett 

committed domestic violence against both Amina and their children, the court 

granted Amina’s petition for a DVPO. By granting Amina’s petition, the court 

effectively denied Garrett’s requests for referrals. That denial was not an abuse 

of discretion.3

Garrett’s Video Exhibits

Garrett asserts that the court erred by refusing to admit or consider video 

exhibits that he wished to submit as evidence. However, because the court was 

unable to play them, Garrett chose to proceed with the hearing without the 

exhibits rather than postponing the hearing. We conclude that in doing so, he 

 

3 Garrett also claims that both parties moved the court to refer them to 

FCS. But Amina only requested the court refer the parties to FCS if it was not 

inclined to grant her a protection order.
No. 84310-9-I/7

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waived this issue.

Under RAP 2.5(a), we may refuse to hear any claim of error not raised 

before the trial court. Waiver requires both knowledge and intent; it is the 

intentional and voluntary relinquishment of a known right, or conduct that infers 

relinquishment of such right. Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 

960 (1954). “It is a voluntary act which implies a choice, by the party, to dispense 

with something of value or to forego some advantage.” Bowman, 44 Wn.2d at 

669. The ability of an attorney to waive a right on their client’s behalf depends on 

the nature of the right, but statutory and procedural rights are typically waivable 

without the client’s express permission on the record. See, e.g., State v. Israel, 

19 Wn. App. 773, 779, 577 P.2d 631 (1978) (attorney’s waiver of statutory right 

to examination by two experts in competency hearing); In re Adoption of M.S.M.-

P., 184 Wn.2d 496, 500, 358 P.3d 1163 (2015) (attorney’s waiver of 

constitutional right to public proceedings).

At the April 20 hearing, the court informed the parties that it had not been 

able to review the video exhibits submitted by Garrett’s counsel. The court noted 

that it did not have access to the exhibits and that it was unsure how to view the 

exhibits—it suggested that counsel might need to appear and play the exhibits in 

open court. The court stated that the parties could proceed that day without the 

exhibits or the hearing could be continued to allow the court time to view the 

exhibits.4 Garrett’s counsel opted to proceed: “I think my client would prefer to go 

 

4 The court offered to grant a shorter than usual continuance: “[I]f it’s 

important that the Court review this prior to . . . a hearing or . . . issuing a 
No. 84310-9-I/8

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forward.” The court then reiterated that it “ha[d] not reviewed any video evidence 

that was submitted, and that [the video exhibits were] not going to be considered 

as part of the Court’s decision.” Garrett’s counsel did not object further.

In response to Amina’s waiver argument, Garrett urges this court to look to 

the superior court’s ruling on his motion for revision, in which it concluded that it 

was “unclear from the audio recording of the April 20th hearing” if Garrett waived 

viewing of the video exhibits by agreeing to go forward. The superior court also 

determined that, regardless of waiver, it could not review the exhibits because 

Amina did not consent to being recorded and “it is illegal to record a 

communication without consent from all parties involved.” See RCW 

9.73.030(1)(b). Garrett argues that exceptions to the Washington Privacy Act, 

chapter 9.73 RCW, apply and that the superior court erred in not admitting his 

exhibits.

Because we conclude that Garrett’s actions at the hearing constituted a 

waiver, we decline to reach whether the exhibits violated the Privacy Act. The 

record before us clearly demonstrates that Garrett was fully aware of his right to 

present the video evidence and knowingly and voluntarily chose to relinquish it.5

Domestic Violence Protection Order

Garrett maintains that the court abused its discretion by granting Amina’s 

petition for a DVPO because she failed to meet her burden of proving by a 

preponderance of the evidence that domestic violence occurred. He specifically 

 

decision . . . then the best thing I can suggest is . . . a short continuance, like,

less than the standard two weeks.”

5 We reviewed a transcript of the hearing, rather than an audio recording.
No. 84310-9-I/9

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takes issue with the two incidents the court outlined as examples for the bases 

for the protection order and claims they were not domestic violence as defined by 

statute. We disagree and conclude that substantial evidence supports the court’s 

finding that Garrett committed acts of domestic violence. 

At the time Amina filed her petition, the Domestic Violence Prevention Act 

(DVPA), former chapter 26.50 RCW (2019), governed civil domestic violence 

protection order proceedings.6 A party seeking a protection order must allege 

the existence of domestic violence and must be accompanied by an affidavit 

made under oath stating the specific facts and circumstances from which relief is 

sought. Former RCW 26.50.030(1) (2005). Domestic violence is “[p]hysical 

harm, bodily injury, assault, or the infliction of fear of imminent physical harm” 

between intimate partners or between family or household members. Former 

RCW 26.50.010(3) (2019). Evidence demonstrating a present fear based on 

past violence is a sufficient basis for granting a DVPO. Muma v. Muma, 115 Wn. 

App. 1, 6-7, 60 P.3d 592 (2002). A person may also petition for protection on 

behalf of minor household members, regardless of whether those minors 

witnessed acts of domestic violence or were themselves victims. Former RCW 

26.50.020(1)(a) (2019); Rodriguez v. Zavala, 188 Wn.2d 586, 592-93, 598-99, 

398 P.3d 1071 (2017). The petitioner must prove each element of former 

RCW 26.50.030 by a preponderance of the evidence. See Reese v. Stroh, 128 

Wn.2d 300, 312, 907 P.2d 282 (1995) (setting out burden of proof in civil cases). 

 

6 The DVPA was repealed by 2021 ch. 215 § 170, effective July 1, 2022. 

Its provisions are now codified under Civil Protection Orders, ch. 7.105 RCW.
No. 84310-9-I/10

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To meet this standard, the court must find that it was more likely than not that 

domestic violence occurred. See In re Marriage of Freeman, 169 Wn.2d 664, 

672-73, 239 P.3d 557 (2010).

Here, Amina’s declaration alleged that she was “increasingly afraid of 

Garrett,” that “[m]ost of the incidents of violence occur in front of the children or 

involve them,” and that at times, she lived “in extreme fear for [her] life.” Her 

declaration detailed more than 20 episodes of violence toward her and the

children. In one of the worst incidents, Garrett slapped Amina’s hand with such 

force that his finger jabbed into her eye and her head slammed backwards, 

striking a doorframe. A few minutes later, Garrett started filming Amina holding 

J.C., and told her, “Don’t hit me.” Amina responded: “You just assaulted me, you 

went into my eye and my head hit the wall.” B.C. also witnessed Garrett 

recording Amina and appeared “very confused” about what was happening. 

After that incident, Amina said she “experienced eye pain non-stop for a month 

and received medical care for [her] eye and head.” Attached to her declaration 

are photos from almost every incident, either of Amina or the children. The 

photos show red marks, bruises, and scratches consistent with Amina’s 

recounting of the incidents. She also noted that Garrett owns several guns, 

many of which are stored inside the couple’s house, and that she was unsure if 

the guns were locked or loaded.

After considering the evidence presented by the parties, the court 

concluded that Amina’s version of events was “more credible” than Garrett’s. 

The court found that the parties’ children “were present for many of the incidents 
No. 84310-9-I/11

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alleged in the petition,” including the July 17, 2019 incident where Garrett injured 

Amina’s eye. The court also noted that the December 15, 2019 incident—in 

which Amina alleged that Garrett grabbed J.C. by the neck—supported including 

the children in the DVPO. Though Garrett denied this allegation, the court again 

found Amina’s account “more credible.”

Substantial evidence supports the court’s findings and conclusion that 

Garrett perpetrated domestic violence against Amina and their children. Amina 

provided detailed a recounting of incidents that resulted in bodily harm, physical 

injury, and fear of imminent physical harm. And because the parties’ children 

were present for and involved in certain instances of domestic violence, it was 

appropriate for the court to include them in the DVPO. Rodriguez, 188 Wn.2d at 

595-98 (children’s exposure to domestic violence constitutes domestic violence).

Garrett contends that the two incidents the court mentioned at the hearing 

do not constitute domestic violence as a matter of law.

7

 We disagree.

First, Garrett asserts that the court wrongly concluded he did not act in 

self-defense during the July 17 incident in which Amina suffered an eye injury. 

 

7 Garrett also implies that the two incidents discussed by the court were 

the only instances of domestic violence the court identified. But Garrett grossly 

misinterprets the record. The court merely highlighted these two incidents as 

examples of bases for the DVPO—it did not indicate that these were the only 

incidents of domestic violence. The court told Garrett’s counsel as much after 

counsel tried to limit the court’s ruling:

MR. BERRY: And, again, if I may, Your Honor, just so I’m clear 

on the incidence of domestic violence, the one on July 17th . . . 

that’s the assault that the Court is relying upon?

THE COURT: That is the—that’s the explicit one the Court 

discussed during its ruling, yes.
No. 84310-9-I/12

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Whether he acted in self-defense is fundamentally a question of fact, susceptible 

to the court’s determination after hearing evidence. See State v. Hatt, 11 Wn. 

App. 2d 113, 134-35, 452 P.3d 577 (2019) (whether defendant acted in selfdefense is a question for the fact-finder). The parties agree that during that 

incident, Amina held her hand up in front of Garrett and that Garrett hit Amina’s 

hand out of the way. Amina argues that she held her hand up to communicate 

“stop” and that Garrett responded with violence. Garrett contends that he 

interpreted Amina’s raised hand as an act of aggression and responded by 

slapping her hand to protect himself. The trial court determined that Amina’s 

story was more credible and Garrett cannot attack the court’s credibility 

determination on appeal. Knight, 178 Wn. App. at 937 (“We defer to the trier of 

fact on the persuasiveness of the evidence, witness credibility, and conflicting 

testimony.”).

Second, Garrett claims the court erred by concluding the December 15 

incident—in which Amina alleges Garrett grabbed J.C. by the neck—did not 

constitute “reasonable physical discipline,” because it based its conclusion 

“solely on speculation.” The court did not err in determining that Garrett’s actions 

were not reasonable physical discipline. 

RCW 9A.16.100 allows parents to use moderate and reasonable physical 

discipline for purposes of restraining or correcting their children. The statute 

provides a nonexclusive list of unreasonable physical disciplinary actions 

including: 

(1) Throwing, kicking, burning, or cutting a child; (2) striking a child 
No. 84310-9-I/13

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with a closed fist; (3) shaking a child under age three; (4) interfering 

with a child’s breathing; (5) threatening a child with a deadly 

weapon; or (6) doing any other act that is likely to cause and which 

does cause bodily harm greater than transient pain or minor 

temporary marks. 

RCW 9A.16.100.

In determining whether physical discipline is reasonable, the fact finder 

should consider the age, size, and condition of the child, the location of the injury, 

the nature of the misconduct, and the child’s developmental level. RCW 

9A.16.100; WAC 110-30-0030.

Amina alleged that on December 15, 2019, “Garrett became physically 

aggressive with JC and lashed out at him by grabbing him around his neck.” In 

support of this allegation, she provided photos of J.C. after the incident with red 

marks on his neck. The red marks on J.C.’s neck resemble finger marks, 

consistent with her story. The court noted that “[Garrett] denie[d] the incident 

took place and thus [did] not seem to be arguing that this was discipline per 

RCW 9A.16.100,” but that “even if he had made such an argument . . . this 

conduct is beyond what is reasonable per that statute.” The court concluded that 

“[g]rabbing a child’s neck would interfere with a child’s breathing and is explicitly 

stated within the statute as per se unreasonable.”

The court did not err in concluding that Garrett’s actions were likely to 

interfere with J.C.’s breathing, and therefore, not reasonable physical discipline 

under the statute. Contrary to Garrett’s assertion, it is not speculative to 

conclude that grabbing a child by the neck hard enough to leave finger marks 

would interfere with their breathing. The photos provided by Amina show clear 
No. 84310-9-I/14

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red marks on J.C.’s neck, consistent with Amina’s version of the events. The 

court did not abuse its discretion in granting the DVPO.

Challenges to Findings of Fact

Garrett challenges two of the court’s findings of fact as not being 

supported by substantial evidence: (1) that he presented a credible threat to 

Amina, and (2) that the couple’s children were exposed to domestic violence. 

We conclude that both findings were supported by substantial evidence.

Evidence is “substantial” when it is sufficient to persuade a fair-minded 

person of the truth of the matter asserted. Black, 188 Wn.2d at 127.

1. Garrett Presents a Credible Threat

The many episodes of abuse detailed in Amina’s declaration demonstrate 

that Garrett perpetrated acts of domestic violence against her. Amina’s 

description of these incidents, along with the supporting documentation and 

photos she provided, constitute substantial evidence supporting a finding that 

Garrett presented a credible threat to Amina.

Garrett attempts to contrast this case with In re Parentage of T.W.J., 193 

Wn. App. 1, 367 P.3d 607 (2016). In T.W.J., this court upheld a finding that 

respondent represented a credible threat based on an e-mail from respondent’s 

counsel to petitioner, in which counsel warned petitioner of respondent’s threat to 

kill her. 193 Wn. App. at 6-7. Garrett asserts that there “is no such evidence 

here” and that Amina “has never alleged that [Garrett] has ever threatened to 

physically harm her or their children.” But this argument misses the mark. 

Domestic violence is not confined to threats of physical violence. And Amina has
No. 84310-9-I/15

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alleged that she felt threatened by Garrett on several occasions. Faced with 

overwhelming evidence, which it determined credible, and evidence that 

corroborated Amina’s assertions that Garrett habitually committed acts of 

domestic violence, the trial court did not err in finding that Garrett presented a 

credible threat to Amina.

2. Children’s Exposure to Domestic Violence

The December 15, 2019 incident, in which Garrett is alleged to have 

grabbed J.C. by the neck constitutes substantial evidence supporting a finding 

that the children were exposed to domestic violence. The incidents described in 

the section of Amina’s declaration entitled “Past Violence Toward Children,” also 

supports a finding that the children were exposed. 

In an attempt to cabin the court’s finding that the children were exposed to 

domestic violence, Garrett asserts that “there is no evidence that any of the 

parties’ children, with the exception of [J.C.], were present at either of the two 

incidents which the court concluded constituted domestic violence.” But the 

court’s finding was not confined to the July 17 and December 15 incidents. The 

court clarified that those incidents were “the explicit one[s] the Court discussed 

during its ruling” and did not state that those were the only incidents supporting 

its findings. And contrary to Garrett’s assertion, the record demonstrates that 

J.C. was not the only child present during the alleged incidents. For example, in 

March 2018, Amina alleges that Garrett “got physically aggressive with GC by 

slapping his leg.” A few days later, Amina states that Garrett “became physically 

aggressive with LC by slapping, grabbing and being rough with her and scaring 
No. 84310-9-I/16

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her to the point where she was shaking and crying.” Amina recalls Garrett 

“yelling, being aggressive, domineering, and threatening to LC.” Photos of L.C. 

from after the incident corroborate Amina’s story.

We conclude that substantial evidence supports the court’s finding that the 

couple’s children were exposed to domestic violence.

Constitutional Challenges

Garrett raises a series of constitutional challenges on appeal. He asserts 

the court erred in (1) not considering whether Garrett’s constitutional right to 

parent was affected by the DVPO, (2) not conducting a strict scrutiny analysis, 

and (3) restricting Garrett’s contact with his children. We do not find his 

arguments persuasive. Washington courts have already determined that the 

DVPA—and protection orders authorized by it—do not interfere with the 

constitutional right to parent.

“[P]arents have a fundamental right to autonomy in child rearing 

decisions.” In re Custody of Smith, 137 Wn.2d 1, 13, 969 P.2d 21 (1998). 

Where a fundamental right is involved we apply the “strict scrutiny” test, which 

holds that the State may only interfere if it can show that it has a compelling 

interest and its interference is narrowly tailored to meet that compelling interest. 

Smith, 137 Wn.2d at 15. This test is satisfied when the State, exercising its 

parens patriae power, interferes in a parental relationship in which a child has 

been harmed or there is a credible threat of harm to the child. Stewart, 133 Wn. 

App. at 555; Smith, 137 Wn.2d at 16. We review constitutional challenges de 

novo. Aiken v. Aiken, 187 Wn.2d 491, 501, 387 P.3d 680 (2017). 
No. 84310-9-I/17

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Here, the court found that Garrett represented a credible threat to the 

physical safety of Amina and their children. The court also concluded that 

Garrett had harmed at least one of the children. Therefore, State interference in 

the form of a DVPO is justified to protect the children and does not violate 

Garrett’s fundamental right to parent his children. Moreover, there was no error 

in the court not explicitly considering this right; it had no obligation to rehash 

settled case law when it granted the DVPO.

Garrett’s arguments to the contrary are vague and unavailing. While he 

recognizes the State may interfere in a parental relationship when a child has 

been harmed or if there is a credible threat of harm, he maintains that the 

incidents the court relied on do not provide substantial evidence that any of the 

children were harmed. Relying on In re Marriage of C.M.C., Garrett claims that 

the incidents the court relied on are “de minimus” and that there is no compelling 

State interest where there are only “isolated, de minimus incidents which could 

technically be defined as domestic violence.” 87 Wn. App. 84, 88, 940 P.2d 669 

(1997). In C.M.C., this court, in dicta, noted that the commentary to the proposed 

Parenting Act of 1987 stated that the term “history of domestic violence” was 

intended to exclude “isolated, de minimus incidents which could technically be 

defined as domestic violence.” 87 Wn. App. at 88 (quoting 1987 PROPOSED 

PARENTING ACT: REPLACING THE CONCEPT OF CHILD CUSTODY: COMMENTARY AND 

TEXT 29 (undated)). But that statute was later amended and is not at issue in the 

present case. Moreover, regardless of the precedential value of C.M.C., the 

incidents alleged here are certainly not de minimus or isolated. Rather, the 
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record demonstrates a history of domestic violence spanning several years. As 

previously discussed, substantial evidence supports the court’s finding that 

Garrett posed a credible threat to the children.8

Relying next on State v. Ancira, Garrett asserts that any restriction of his 

contact with his children must be “reasonably necessary” and that limiting his 

contact to one hour a week over FaceTime or Zoom was not reasonably

necessary. 107 Wn. App. 650, 27 P.3d 1246 (2001). But Ancira is 

distinguishable. Ancira involved a sentencing condition in a criminal case that 

prohibited the defendant from having contact with his children for five years. 107 

Wn. App. at 652-53. On appeal, this court concluded that the evidence was 

insufficient to support such a severe prohibition against contact. Ancira, 107 Wn. 

App. at 654. Here, the evidence amply supported restricting contact and the 

DVPO is subject to residential provisions granted in the parties’ ongoing 

dissolution proceeding. We conclude that the DVPO does not infringe upon 

Garrett’s constitutional rights.

Domestic Violence Treatment

Garrett contends that the court abused its discretion by ordering him to 

participate in domestic violence treatment and the DV Dads program because 

 

8 After argument, Garrett filed a Supplemental Memorandum Clarifying 

Responses to Questions Raised During Oral Argument and a related motion for 

leave to file that memorandum. He cites RAP 18.8(a) as authority allowing us to 

consider his arguments even though they are made outside of the normal briefing 

and argument process. RAP 18.8(a) allows us to waive the requirements of the 

rules of appellate procedure where we find it appropriate. We decline to exercise 

our discretionary powers under RAP 18.8(a) and do not consider his 

supplemental briefing.
No. 84310-9-I/19

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such programs lack proof of efficacy. He also claims that ordering him to partake 

in treatment violates his constitutional rights. Both assertions are incorrect.

The DVPA authorizes courts to “[o]rder the respondent to participate in a 

domestic violence perpetrator treatment program approved under RCW 

26.50.150.”9 Former RCW 26.50.060(1)(e) (2020).

Garrett asserts that the court violated his constitutional rights by ordering 

him to participate in a treatment program lacking proof of efficacy. He insists that 

“[n]o state interest is furthered by ordering a parent to complete a domestic 

violence treatment program which lacks evidence of efficacy.” In support of his 

argument, Garrett relies on a 2013 report from the Washington State Institute for 

Public Policy.

10 But that report was disapproved of by Washington’s Domestic 

Violence (DV) Manual for Judges as mischaracterizing the Domestic Violence 

Perpetrator Treatment Program, ch. 388-60B WAC, and using generally flawed 

research methodology. See GENDER & JUST. COMM’N, WASH. STATE SUP. CT.,

DOMESTIC VIOLENCE MANUAL FOR JUDGES app. B (2016) (APPENDIX B), 

https://www.courts.wa.gov/content/manuals/domViol/appendixB.pdf

[https://perma.cc/C89R-RNEB].11

 

9 Former RCW 26.50.150 (2019) has been recodified as RCW

43.20A.735.

10 M. MILLER, ET AL., WASH. STATE INST. FOR PUB. POL’Y (WSIPP), WHAT 

WORKS TO REDUCE RECIDIVISM BY DOMESTIC VIOLENCE OFFENDERS? (2013), 

https://www.wsipp.wa.gov/ReportFile/1119/Wsipp_What-Works-to-ReduceRecidivism-by-Domestic-Violence-Offenders_Full-Report.pdf 

[https://perma.cc/6DKL-XKM2].

11 For example, the DV Manual notes that the studies underlying the 2013 

WSIPP report have been “extensively critiqued in multiple peer journals.” 

APPENDIX B at 3 n.10. The DV Manual also states that WSIPP’s conclusions “are 
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But Garrett fails to acknowledge that in 2018, the WAC chapter governing 

domestic violence treatment programming was repealed and replaced by WAC 

388-60B. The updated WACs require an initial assessment to determine the 

“level of risk, needs, and responsivity for the participant” and the “level of 

treatment the program will require for the participant.” WAC 388-60B-0400(2)(a)-

(b). The purpose of this assessment is to provide “[b]ehaviorally focused 

individualized treatment goals or objectives for an initial treatment plan.” 

WAC 388-60B-0400(2)(c). After the assessment, the program is required to write 

a summary including its findings, recommendation, and rationale for the level of 

treatment prescribed. WAC 388-60B-0400(19). And as part of this process, 

assessors are authorized to recommend no domestic violence intervention 

treatment where appropriate. WAC 388-60B-0400(10) and (19)(f). These 

procedures minimize the risk that Garrett will receive treatment that is 

unnecessary or unhelpful. The court did not abuse its discretion in ordering him 

to participate in treatment.

Best Interests of the Children

Garrett argues that the court erred in granting the DVPO without 

considering the best interests of the children. We conclude that the court 

considered the best interest of the children by granting the DVPO. 

The Parenting Act of 1987, chapters 26.09, 26.10 RCW, requires the court 

to consider the best interests of the children when entering a parenting plan. 

 

not only inaccurate but simply cannot be supported either by the authors own 

meta-analysis or by a comprehensive review of the literature.” APPENDIX B at 3

n.10.
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RCW 26.09.184(1)(g); RCW 26.09.002. Former RCW 26.50.060(1)(d) provides 

that “[o]n the same basis as is provided in chapter 26.09 RCW, the court shall 

make residential provision with regard to minor children of the parties.” However, 

the court is not required to “incorporate the full panoply of procedures and 

decision factors from the Parenting Act into the protection order proceeding” 

because that proceeding is intended to be “a rapid and efficient process.” 

Stewart, 133 Wn. App. at 552. And the court does not need to make formal 

findings or follow formal proceedings as it would when entering a parenting plan. 

Stewart, 133 Wn. App. at 553. Rather, it only needs to consider the same factors 

in making its temporary orders. Stewart, 133 Wn. App. at 553. 

Here, the court considered the best interests of the children by granting 

the DVPO after finding that Garrett presented a credible threat to the children. 

Garrett’s assertion that “the lower court never even considered the best interests 

of these children” is not only unsupported by the record but directly contradicted 

by it. The court found that the children “were present for many of the incidents 

alleged in the petition” and that “exposure to domestic violence is domestic 

violence to the children and is sufficient to support a domestic violence protection 

order that protects the children as well.” A denial of the DVPO petition, or 

ignoring its existence when entering residential provisions, would have been a 

failure to consider the best interests of the children. The court did not err.

Fees

Amina requests attorney fees on appeal under former RCW 26.50.060 

and RAP 18.1. Garrett contends that because Amina did not request fees before 
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the trial court, she cannot request them on appeal. He also asserts that Amina 

cannot recoup fees under former RCW 26.50.060 because it has been repealed 

and is no longer an “applicable law” as required by RAP 18.1. We award Amina 

her reasonable attorney fees.

When Amina filed her petition, former chapter 26.50 RCW governed civil 

DVPO proceedings. That chapter still governs this proceeding. Under former 

RCW 26.50.060(1)(g), the court has discretion to require a respondent in a 

DVPO proceeding to pay petitioner’s reasonable attorney fees. RAP 18.1

provides that the prevailing party on appeal may recover fees where fees are 

permitted at the trial court level. Because Amina is the prevailing party on 

appeal, she is entitled to her reasonable attorney fees.

We affirm.

WE CONCUR: