State v. Veliz

J.M. Johnson, J.

¶32 (dissenting) — The majority errs by unnecessarily limiting the definition of “court-ordered parenting plan” under RCW 9A.40.060(2) to documents created pursuant to chapter 26.09 RCW. I would affirm the Court of Appeals and hold that when RCW 26.50.060 orders contain residential provisions for minor children, they are “court-ordered parenting plants].” Accordingly, a violation of a domestic violence protection order’s residential provisions for children should constitute custodial interference under RCW 9A.40.060(2). To hold otherwise would be contrary to the rules of statutory construction and the legislature’s express intent concerning the treatment of crime victims.

¶33 The legislature has declared its intent to “ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity.” RCW 7.69.010. The rights of victims, survivors, and witnesses to crimes *866should be protected “in a manner no less vigorous than the protections afforded criminal defendants.” Id. The legislature has further recognized the vulnerability of child victims, declaring that they must be treated with “special care.” RCW 7.69A.010. The majority’s interpretation of the statute prioritizes the rights of the criminal defendant over the rights of the victims — the abducted child, N.V., and her mother, Lorena Velasco. I respectfully dissent.

Standard of Review

¶34 We review questions of statutory interpretation de novo. City of Spokane v. Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006). The fundamental objective of statutory interpretation is to ascertain and carry out the legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). An undefined term will “be given its plain and ordinary meaning unless a contrary legislative intent is indicated.” Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998). “Plain meaning ‘is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’ ” Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009)). Only if the statute is ambiguous do we “resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.” Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007).

¶35 The legislature has prescribed that “[t]he provisions of [the criminal code] shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further [four] general purposes.” RCW 9A.04.020(2). These purposes are as follows:

*867(a) To forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests;
(b) To safeguard conduct that is without culpability from condemnation as criminal;
(c) To give fair warning of the nature of the conduct declared to constitute an offense; [and]
(d) To differentiate on reasonable grounds between serious and minor offenses, and to prescribe proportionate penalties for each.

RCW 9A.04.020(1).

Analysis

¶36 The plain and unambiguous language of RCW 9A-.40.060 indicates that “court-ordered parenting plan” includes domestic violence protection orders that contain residential provisions for children. RCW 9A.40.060(2) provides:

A parent of a child is guilty of custodial interference in the first degree if the parent takes, entices, retains, detains, or conceals the child, with the intent to deny access, from the other parent having the lawful right to time with the child pursuant to a court-ordered parenting plan, and:
(a) Intends to hold the child permanently or for a protracted period; or
(b) Exposes the child to a substantial risk of illness or physical injury; or
(c) Causes the child to be removed from the state of usual residence.

The statute itself does not define the term “court-ordered parenting plan.” Where a term is undefined, it should be given its plain and ordinary meaning. Ravenscroft, 136 Wn.2d at 920-21. The plain meaning of a “parenting plan” is “[a] plan that allocates custodial responsibility and decision-making authority for what serves the child’s best interests and that provides a mechanism for resolving any *868later disputes between parents.” Black’s Law Dictionary 1224 (9th ed. 2009). “Court-ordered parenting plan” is not, as the majority claims, a term of art limited only to those parenting plans created pursuant to chapter 26.09 RCW.

¶37 I agree with the Court of Appeals that the terms “ ‘permanent parenting plan’ ” and “ ‘temporary parenting plan’ ” within the dissolution provisions of chapter 26.09 RCW are instructive. State v. Veliz, 160 Wn. App. 396, 405-06, 247 P.3d 833 (2011) (citing RCW 26.09.004(3), (4)). “ ‘Permanent parenting plan’ ” is defined as “a plan for parenting the child, including allocation of parenting functions, which plan is incorporated in any final decree or decree of modification in an action for dissolution of marriage or domestic partnership, declaration of invalidity, or legal separation.” RCW 26.09.004(3). “ ‘Temporary parenting plan’ ” is defined as “a plan for parenting of the child pending final resolution of any action for dissolution of marriage or domestic partnership, declaration of invalidity, or legal separation which is incorporated in a temporary order.” RCW 26.09.004(4). The meaning shared by these two definitions is “a plan for parenting a child,” which is the plain and ordinary meaning of “parenting plan.” Veliz, 160 Wn. App. at 405-06.

¶38 This interpretation is supported by RCW 26.50-.060(l)(d), which requires domestic violence protection orders to make residential provisions for minor children on the same basis as chapter 26.09 RCW. The section further states that “parenting plans as specified in chapter 26.09 RCW shall not be required under this chapter.” RCW 26.50.060(l)(d). This indicates that the legislature recognizes more than one type of parenting plan, including parenting plans other than those created pursuant to chapter 26.09 RCW. If “court-ordered parenting plan” is a term of art referring only to those parenting plans under chapter 26.09 RCW, then the language “as specified in chapter 26.09 RCW” is superfluous. Accordingly, the majority’s construction of the term is improper, given that “[s]tat*869utes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.” Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).

¶39 Here, the domestic violence protection order contained a plan for parenting N.V. The order included residential provisions such that N.V. would live with her mother during the week and see her father on weekends. The parties respected this agreement for several months until the defendant abducted N.V. out of state in violation of the court order. This protection order, which contained a plan for parenting the parties’ child, should be considered a court-ordered parenting plan for the purposes of RCW 9A.40.060(2).

¶40 Although we need look no further than the plain and unambiguous language of the statute, the public policy-supporting the Domestic Violence Prevention Act (DVPA), chapter 26.50 RCW, and the custodial interference statute supports my conclusion. In 1984, the legislature enacted chapter 26.50 RCW, the DVPA, which authorizes orders of protection in cases of domestic violence. RCW 26.50.060. These court orders are of vast importance to women like Lorena Velasco, the mother here. First, they can be obtained without the assistance of a lawyer, which is critical for those who may not have adequate access to legal resources. Second, the parenting provisions are enforceable, so victims of domestic abuse are able to protect not only themselves but also their children.

¶41 Child abduction is one of the most effective ways that domestic violence perpetrators control their victims. “Even after separation, batterers use the children as pawns to control the abused party.” Wash. State Gender and Justice Comm’n, Domestic Violence Manual for Judges 2-36 (rev. ed. 2006). This tactic includes “[hjolding children hostage or abducting the children in efforts to punish the abused party or to gain the abused party’s compliance.” Id. at 2-37. Court orders under the DVPA are strong enforcement mecha*870nisms that hold domestic violence perpetrators accountable for their actions. The majority’s holding undermines this mechanism, effectively expressing that the orders’ residential provisions are less meaningful than parenting plans created pursuant to chapter 26.09 RCW.

¶42 The policy supporting the custodial interference statute similarly supports our interpretation. Washington’s first degree custodial interference statute is aimed at the exact conduct perpetrated by Jose Veliz — one parent unlawfully depriving the other parent of time with the child. Under the majority’s holding, this conduct would be a violation of RCW 9A.40.060(2) only if there were a court-ordered parenting plan in place under chapter 26.09 RCW. According to the majority, the same conduct would not be punishable under RCW 9A.40.060(2) if perpetrated in violation of a domestic violence protection order, even if the order’s residential provisions for minor children met all the criteria for a chapter 26.09 RCW parenting plan. Child abduction in violation of a court order threatens harm to the child, the victim parent, and society Furthermore, there is no risk that enforcing the court order in this way could inhibit legitimate, noncriminal conduct. There is simply no basis to distinguish conduct that violates a domestic violence protection order from identical conduct that violates a parenting plan under chapter 26.09 RCW.

¶43 House Bill 2333 was enacted to address a potential problem arising in child abduction cases: “If a parent removes the child from the state with the intent to go underground, capturing the parent and returning the child may be very difficult, because law enforcement agencies in other states do not act on misdemeanor warrants from other states.” Final B. Rep. on H.B. 2333, 53d Leg., Reg. Sess. (Wash. 1994). Mr. Veliz may not have been arrested in California but for the felony custodial interference charges against him, and N. V. may never have been returned to her mother. The majority’s holding places parents such as Lorena Velasco in an untenable position. The only available *871resource to protect them and their children may be to obtain a domestic violence protection order, but the majority holds that such an order cannot be the basis for a felony charge under RCW 9A.40.060(2). In such a case, a parent may be unlawfully separated from her abducted child but out-of-state law enforcement agencies may be unable to aid in her child’s safe return.

Conclusion

¶44 Because the rights of victims should be protected at least as vigorously as those of criminal defendants, I respectfully dissent. I would affirm the Court of Appeals and hold that when RCW 26.50.060 orders contain residential provisions for minor children, they are “court-ordered parenting plan[s].” A violation of a domestic violence protection order’s residential provisions for children would accordingly satisfy the violation of a “court-ordered parenting plan” requirement for prosecution of custodial interference under RCW 9A.40.060(2).

Owens, Stephens, and González, JJ., concur with J.M. Johnson, J.