XX/XX/XXXX v. XX/XX/XXXX (In re Jones)
| Decision Date | 29 June 2020 |
| Docket Number | No. 79767-1-I,79767-1-I |
| Court | Washington Court of Appeals |
| Parties | In the MATTER OF Nina JONES, Petitioner and/or Parent on behalf of: E.R., dob: XX/XX/XXXX, Appellant, v. A.M., dob: XX/XX/XXXX, L.M., dob: XX/XX/XXXX, Respondents. |
Patrick Gerard Songy, Deno Millikan PLLC, 3411 Colby Ave., Everett, WA, 98201-4709, Patricia S. Novotny, Zaragoza Novotny PLLC, 3418 Ne 65th St., Ste. A, Seattle, WA, 98115-7397, for Appellant.
Anna Goykhman Alexander, Snohomish County Superior Court, M/s #502, 3000 Rockefeller Ave., Everett, WA, 98201-3565, Mark David Mestel, Mark D. Mestel, Inc., P.S., 2707 Colby Ave., Ste. 901, Everett, WA, 98201-3565, for Respondents.
Mark David Mestel, Mark D. Mestel, Inc., P.S., 2707 Colby Ave., Ste. 901, Everett, WA, 98201-3565, for Minor.
Riddhi Mukhopadhyay, Sexual Violence Law Center, 101 Yesler Way, Ste. 300, Seattle, WA, 98104-2552, for Amicus Curiae on behalf of Sexual Violence Law Center and Legal Voice.
Patrick Gerard Songy, Deno Millikan PLLC, 3411 Colby Ave., Everett, WA, 98201-4709, for Other Parties.
PUBLISHED OPINION
Mann, C.J. ¶ 1 Attorney Patrick Songy appeals a trial court order granting CR 11 sanctions against him. The court sanctioned Songy after he sought a sexual assault protection order (SAPO) against two children on behalf of his client, Nina Jones. Songy contends that he made a reasonable argument when seeking the orders and that the court abused its discretion when it granted sanctions against him. Because children under eight years old cannot form the capacity to commit a sexual assault their actions cannot serve as the basis for a SAPO. Because the trial court did not abuse its discretion in granting CR 11 sanctions, we affirm.
¶ 2 Nina Jones and Anthony Reynolds are the parents of E.R. and L.R. Jones and Reynolds separated in June 2017. In August 2017, Reynolds moved in with his girlfriend, Megan McGowan, and her two children, L.M. and A.M. Jones and McCowan had a contentious relationship; at one point Jones sought an anti-harassment order against McCowan, which was denied.
¶ 3 On February 5, 2019, Jones's attorney, Songy, filed a petition for a temporary SAPO against McCowan, L.M., and A.M., to restrict contract between the McCowan children and E.R. At the time, L.M. was six years old and A.M. eight years old. Jones's children, E.R. and L.R. were eight years old and three years old, respectively. The temporary SAPO petition was supported by a declaration from Jones. Jones described two incidents involving the children. Jones characterized L.M. as the aggressor in the first incident, when he inappropriately placed his mouth on parts of E.R.’s body under A.M.’s1 direction.2 Jones stated that she and E.R.’s therapist contacted Child Protective Services (CPS) to report the first incident. CPS worker Lauren Safadago investigated the McCowan-Reynolds home. Jones reported that Safadago contacted Reynolds and asked him to implement precautions to prevent further incidents, including locks on the children's doors.
¶ 4 Jones also stated that Safadago contacted her concerning a second incident that had been reported by L.M.’s grandfather. Jones described the second incident as L.M. forcefully touching parts of E.R.’s body during one of E.R.’s overnight visits.3
¶ 5 McCowan and Reynolds provided a different version of the events that transpired between the children, and asserted that Jones mischaracterized the events. McCowan and Reynolds described the first incident as a game of truth or dare that became inappropriate, but did not arise to a sexual assault. Reynolds informed Jones of the incident, and a week later, Jones notified Reynolds that E.R.’s therapist was reporting the incident to CPS. McCowan stated that Jones then began threatening Reynolds with a protection order. McCowan and Reynolds stated the second incident was inappropriate behavior that both E.R. and L.M. willingly participated in. Reynolds and McCowan reprimanded the children for their behavior. Reynolds said that although he considered these behaviors concerning, he thought they were within the realm of childhood development and did not constitute a sexual assault.
¶ 6 McCowan confirmed that she was also contacted by Safadago to report the second incident. According to McCowan, Safadago told her that Jones had misquoted her in her declaration. Safadago did not provide great detail as to the misrepresentations and Safadago declined to provide a written statement. CPS investigated both incidents as negligent treatment or maltreatment by McCowan. CPS found both allegations unfounded.
¶ 7 On February 5, 2019, a superior court commissioner issued a temporary SAPO against A.M., L.M., and McCowan. On February 6, 2019, Songy notified McCowan about the temporary SAPO and told them that Jones would be seeking a modification to the parenting plan. Songy explained that if Jones received "adequate safeguards" through the parenting plan, then Jones would dismiss the temporary SAPO.
¶ 8 Two days later, on February 7, 2019, Songy obtained a temporary modification of the parenting plan ex-parte that restricted contact between E.R. and the McCowan children through a restraining order.4 Songy notified the McCowans about the parenting plan modification on February 8, 2019.
¶ 9 On February 15, 2019, an attorney for the McCowans petitioned the superior court for a writ of review, arguing that the SAPO order should be voided and dismissed with prejudice as inappropriate against a six-year-old and eight-year-old child as they are legally incapable of committing nonconsensual sexual conduct. That same day, Jones petitioned the court to appoint a Guardian Ad Litem (GAL) for both E.R. and the McCowan children.
¶ 10 While Songy was in communications with the McCowans’ lawyer about the parenting plan modification, he stated that:
I do not want to pursue full SAPOs against these children unless I absolutely have to. You and your client have probably both wondered why litigation is pending here, instead of just in the family law case. The reason is straightforward: there is one thing the Court can do here that it cannot do in the family law matter—appoint a GAL for the two McCowan children.
Reynolds’ lawyer confirmed this communication, stating that on February 15, 2019:
Songy told me that filing a SAPO against such young children is his ‘nuclear option,’ he did not like doing it, but he had no other way to obtain jurisdiction over these children. Mr. Songy further told me his plans to dismiss the SAPOs after he obtains the desired parenting plan modification for his client, as that is his ultimate goal.
¶ 11 On February 19, 2019, the parties appeared before Snohomish County Superior Court Judge Bruce Weiss to seek a continuance. While the court granted the continuance until March 5, 2019, Judge Weiss noted:
Songy agreed with the court that there were better ways to address the issue, but reiterated that his purpose in filing the SAPO was to appoint a GAL to evaluate the McCowan children. Songy did not inform the court that he had obtained restrictions between E.R. and the McCowan children through the temporary parenting plan modification action.
¶ 12 On February 19, 2019, Songy filed a memorandum of law in response to the McCowans’ petition for writ of review. Songy argued that the criminal code did not apply to the SAPO proceedings, and therefore the court did have jurisdiction over the McCowan children.
¶ 13 After Songy petitioned for issuance of full SAPO, on February 28, 2019, McCowan moved to dismiss the temporary SAPO, to deny the request to issue a full SAPO, and for CR 11 sanctions against Songy. McCowan repeated her argument that children under eight may not be restrained by a SAPO because children under eight lack the capacity to commit a crime.
¶ 14 On March 5, 2019, Snohomish County Superior Court Judge Joseph Wilson denied the petition for the full SAPO, finding it invalid. The court dismissed the petition with prejudice. The court also granted McCowan's motion for CR 11 sanctions, ordering Songy to pay $15,000 in attorney's fees. The court found that L.M. and A.M. were incapable of forming intent under RCW 9A.04.050 because they were under eight at the time the incidents occurred. The court found that the SAPO petitions:
lacked a factual and legal basis to be filed and caused irreparable harm to the minor respondents including but not limited to having their names associated with sexual assault within the justice system, incurring significant legal fees to defend themselves, the emotional toll it has taken on them and their respective families etc.
¶ 15 The court further found that Songy admitted that he used the SAPOs as a discovery tool for the family law case and to find out information about L.M. and A.M. by appointing a GAL and that Songy did not use the available remedies, instead, he chose to use the SAPO to gain an advantage in the family law case. The court explained:
The use of this SAPO proceeding is offensive to this court and to the administration of justice. Children who cannot be held legally liable have been used to further an agenda of the Petitioner to gain some advantage in her family law case. Again, a simple request for an immediate restraining order in the family law case requesting no contact between E.R. and the respondents based on the alleged behavior could and should have...
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