      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                     ]
                                                DIVISION ONE                  PO
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                      Respondent,        )
                                                No. 70457-5-1                         •"'' ,™
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                                                UNPUBLISHED OPINION
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PETER DANIEL ANSELL,                     \                                     SI

                      Appellant.         ;)     FILED: April 21, 2014            **

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      Dwyer, J. — Peter Ansell pleaded guilty to three counts of child

molestation in the first degree. In his plea agreement, he admitted that he

molested three neighborhood children, including at least two incidents which took

place within his home while his own minor son and minor daughter were in the

same room. As part of his sentence, he was prohibited from having any contact

with his children until they reached the age of majority. He appealed the

imposition of the no-contact order as to his children. We reversed and

remanded, directing the trial court to apply the proper standard—whether the no-

contact order is reasonably necessary to realize a compelling state interest, and

whether the restrictions imposed by the order are narrowly drawn to effectuate

this interest—in resentencing Ansell. Ansell was resentenced and once again

appeals. Concluding that the trial court, on remand, applied the proper standard

in modifying the no-contact order, we affirm.
No. 70457-5-1/2




      Ansell was charged by information with three counts of child molestation in

the first degree and pleaded guilty to all three counts. In his plea agreement, he

stipulated to a number of facts, including that on at least two occasions he

molested neighborhood children in his home while his two minor children were in

the same room. He also stipulated to the fact that he told one of the victims that

her friendship with his daughter would end if she ever reported the sexual abuse.

Following his guilty plea, and as part of his sentence, he was ordered to have no

contact with his children until they reached the age of majority.

       Ansell appealed the imposition of the no-contact order and this court, in an

unpublished opinion, reversed and remanded, directing the trial court to apply the
proper standard in resentencing Ansell.1 Subsequently, Nancy Leonard—
Ansell's ex-wife who has custody of the couple's two children—submitted a letter

to the trial court, wherein she requested that the court uphold the no-contact

order in resentencing Ansell.

       On March 15, 2012, the trial court modified Ansell's original sentence,

including the no-contact order, concluding that Ansell could not have contact with
his children until he rebutted the presumption that he poses a present danger to

his children, as set forth in RCW 26.09.191(2)(f). Subsequently, Ansell renewed
his motion to modify the sentencing conditions. He requested permission to have
unrestricted telephone and written correspondence with his children, as well as
supervised in-person visitation. In response to the motion, the trial court

       1 State v. Ansell, noted at 163 Wn. App. 1026(2011).

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No. 70457-5-1/3



conducted another hearing on April 19, 2013. During the course of that hearing,

Ansell's counsel advised the court that Ansell would not be eligible for enrollment

in a prison-based sex offender treatment program until approximately one year

before his release, which is scheduled to occur on February 24, 2019.

       On April 25, the trial court issued an order supported by written findings of

fact and conclusions of law. The trial court's findings of fact are as follows:

           1. On May 29, 2009, the defendant pled guilty to three counts
       of Child Molestation in First Degree (RCW 9A.44.083) involving
       three separate child victims. The Certificate for Determination of
       Probable Cause (filed with the defendant's Statement of Defendant
       on Plea of Guilty to Felony Sex Offense) indicates the following:
           • Defendant sexually abused victim E.W. on a bottom bunk
             bed while defendant's daughter was on the top bunk bed;
           • Defendant sexually abused E.W. while defendant's son and
             daughter were in the same house; and
           • Defendant's penis was exposed to victim E.W. while the
              defendant and E.W. were in the same basement as the
              defendant's daughter.
           2. Defendant was sentenced on June 19, 2009. As a condition
       of sentence (appendix F to the judgment and sentence), the
       defendant was ordered to obtain a sexual deviancy evaluation and
       follow all treatment recommendations.
           3. Defendant is currently incarcerated in Washington
       Department of Corrections. Based on a review of documents
       included as exhibits to defendant's motion, defendant is not yet
       eligible to receive sex offender treatment while at the Department of
       Corrections.
           4. Defendant has not produced to the Court or State a sexual
       deviancy or psychosexual evaluation that appears to comply with
       Washington Administrative Code (WAC) 246-930-320.
           5. Defendant has not engaged in sex offender treatment since
       ordered by the court as a condition of sentencing.
           6. To the extent these findings of fact are later determined to be
       conclusions of law, the Court adopts the same.

The trial court's conclusions of law are as follows:

               1. The State has a compelling state interest in protecting


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      children, specifically the defendant's children based on the
      following case-specific facts: defendant pled guilty to and was
      convicted of sexually molesting three different children while his
      own children were in close proximity; neither the State nor the
      Court is in possession of a sexual deviancy or psychosexual
      evaluation that complies with Washington Administrative Code
      (WAC) 246-930-320; and the defendant is currently an untreated
      sex offender.
             2. The crime-related prohibitions set forth in this order are
       reasonably necessary to effectuate the compelling state interest of
       protecting children, specifically the defendant's children. This is
       particularly compelling in this case given the facts contained in the
      Certificate for Determination of Probable Cause, including that
      defendant sexually abused child victims in close proximity to his
      own children.
              3. The crime-related prohibitions set forth in this order are
       narrowly drawn to effectuate the compelling state interest of
       protecting children, specifically the defendant's children.
              4. To the extent these conclusions of law are later
       determined to be findings of fact, the Court adopts the same.

       Based on these findings of fact and conclusions of law, the trial court

modified the judgment and sentence to strike the no-contact order, permitting
Ansell to have written contact with his children during his period of incarceration,

provided that the correspondence was approved by a counselor or therapist for
the children. Furthermore, if approved written contact were to proceed without

negatively affecting the children, then Ansell would be permitted to have in-
person contact with his children during his period of incarceration, provided that
such in-person contact was first approved by a counselor or therapist for the
children and provided that the contact was supervised by an adult aware of
Ansell's convictions. Ansell then filed a motion to allow monitored phone contact,

which the trial court denied.

       Ansell appeals the trial court's April 25, 2013 order modifying the
No. 70457-5-1/5



conditions of his sentence, as well as the trial court's May 24, 2013 order

on Ansell's motion to clarify and amend the April 25 order.

                                            II


       Ansell contends that the trial court erred on remand. This is so, he

asserts, because the trial court's findings of fact and conclusions of law "fly in the

face" of this court's mandate to the trial court, as well as prior precedent. We

disagree.

       "We review conclusions of law de novo." Nguyen v. Citv of Seattle.

Wn. App. _, 317 P.3d 518, 522 (2014). However, "when an appellant
challenges conclusions of law not based on the law itself, but rather claiming that
the findings do not support the court's conclusions, appellate review is limited to
determining whether the trial court's findings are supported by substantial
evidence and, if so, whether those findings support the conclusions of law."
Nguyen, 317 P.3d at 522. "'Substantial evidence' is evidence sufficient to

persuade a fair-minded, rational person that the finding is true." In re Estate of
Lanqeland, 177 Wn. App. 315, 320, 312 P.3d 657 (2013). "The label applied to a
finding or conclusion is not determinative; we will 'treat it for what it really is.'"
Nguyen, 317 P.3d at 522 (quoting Para-Med. Leasing. Inc. v. Hangen, 48 Wn.

App. 389, 397, 739 P.2d 717 (1987)).
       Our first task, then, is to inquire whether the trial court's findings offact are
supported by substantial evidence. Ansell challenges two of the trial court's
factual findings, both of which are reproduced below:
               4. Defendant has not produced to the Court or State a

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No. 70457-5-1/6



      sexual deviancy or psychosexual evaluation that appears to comply
      with Washington Administrative Code (WAC) 246-930-320.
             5. Defendant has not engaged in sex offender treatment
      since ordered by the court as a condition of sentencing.

       Substantial evidence supports the finding that Ansell did not produce a

sexual deviancy or psychosexual evaluation that complied with WAC 246-930-

320. The only document relied upon by Ansell is a letter from Dr. G. Christian

Harris, wherein Dr. Harris indicates that he provided treatment to the defendant

prior to sentencing. Although Dr. Harris makes a number of claims regarding

Ansell's progress, the trial court was correct to find that his two-page letterdid

not meet the standards for a sexual deviancy evaluation mandated by WAC 246-

930-320. The core inadequacy of Dr. Harris's letter is his failure to support his

conclusions with clinical data. WAC 246-930-320 mandates completion of

written evaluation reports and further requires that these reports include

information from a variety of sources beyond client interviews. Dr. Harris asserts

that he conducted over 50 sessions with Ansell, and while we have no reason to

question the veracity ofthat claim, Dr. Harris's two page-letter—devoid ofclinical
data—simply does not meet the standards enumerated by WAC 246-930-320.
The trial court's finding is supported by substantial evidence.

       Substantial evidence also supports the trial court's finding that Ansell has

not engaged in sex offender treatment. Although Ansell correctly notes in his
statement of additional grounds that the judgment and sentence did not require
him to engage in sex offender treatment as a condition of sentencing, the trial
court's finding that he has not engaged in sex offender treatment remains

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No. 70457-5-1/7



supported by substantial evidence.2 This is so because Dr. Harris's letter, which

purports to establish that Ansell has been treated, does not comply with the

strictures of WAC 246-930-320.3

        Now that we have examined whether the findings of fact are supported by

substantial evidence, we turn to the issue of whether the findings of fact support

the conclusions of law. Ansell contends that the trial court's conclusions of law

were erroneous. This is so, he asserts, because "the factual records" show "no

evidence whatsoever of misconduct toward the Defendant's own children," which

should have compelled the trial court to rely on cases such as In re Pers.

Restraint of Rainev, 168 Wn.2d 367, 229 P.3d 686 (2010) and State v. Ancira,

107 Wn. App. 650, 27 P.3d 1246 (2001), in resentencing him. Appellant's Br. at

20. We disagree.

        Specifically, Ansell challenges the following conclusions of law entered by

the trial court:

                   1. The State has a compelling state interest in protecting
        children, specifically the defendant's children based on the
        following case-specific facts: defendant pled guilty to and was
        convicted of sexually molesting three different children while his
        own children were in close proximity; neither the State nor the
        Court is in possession of a sexual deviancy or psychosexual
        evaluation that complies with Washington Administrative Code

        2In short, the record presented to us does not reflect that treatmentwas ordered. The
record does reflect that no suitable treatment has been completed.
         3With respect to the first conclusion of law, Ansell challenges the statement "the
defendant is currently an untreated sex offender." This statement, however, is properly
characterized as a finding of fact, not a conclusion of law. The trial court's conclusion of law was,
"The State has a compelling state interest in protecting children, specifically the defendant's
children." The subsequent statementwith which Ansell takes issue was used to support the trial
court's conclusion, but was not a conclusion of law itself. In view of our determination that the
fifth finding offact was supported by substantial evidence, we also conclude that this finding is
supported by substantial evidence.
No. 70457-5-1/8



      (WAC) 246-930-320; and the defendant is currently an untreated
      sex offender.
              2. The crime-related prohibitions set forth in this order are
       reasonably necessary to effectuate the compelling state interest of
       protecting children, specifically the defendant's children. This is
       particularly compelling in this case given the facts contained in the
       Certificate for Determination of Probable Cause, including that
       defendant sexually abused child victims in close proximity to his
       own children.
              3. The crime-related prohibitions set forth in this order are
       narrowly drawn to effectuate the compelling state interest of
       protecting children, specifically the defendant's children.

       We are satisfied, as an initial matter, that the trial court invoked the correct

standard in determining the parameters of Ansell's sentencing conditions. The

trial court's order reflects our directive that it consider whether the sentencing

conditions burdening Ansell's fundamental right to parent are reasonably

necessary to realize a compelling state interest and, further, whether the
sentencing conditions are narrowly drawn to effectuate the compelling state
interest. See State v. Ansell, noted at 163 Wn. App. 1026.

       We are further satisfied that the trial court's findings of fact support its

conclusions of law. The first conclusion, "The State has a compelling state

interest in protecting children, specifically the defendant's children" is supported
by the finding that Ansell admitted to sexually abusing children while his own
children were in close proximity. In a similar case, State v. Berg, 147Wn. App.
923, 198 P.3d 529 (2008). abrogated on other grounds by State v. Mutch, 171
Wn.2d 646, 254 P.3d 803 (2011), we affirmed the trial court's conclusion that the
State had a compelling interest in protecting the defendant's biological daughter,
where the defendant was convicted of raping and molesting his girlfriend's 14-


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No. 70457-5-1/9



year-old daughter in their home—in close proximity to his own daughter. 147

Wn. App. at 942-43. We conclude, in light of Berg, that the first conclusion of law

is supported by the trial court's findings of fact.

       The second conclusion, "The crime-related prohibitions set forth in this

order are reasonably necessary to effectuate the compelling state interest of

protecting children, specifically the defendant's children," is supported by the

same findings of fact as the first conclusion—that Ansell sexually abused other

children while his own children were in close proximity, and that Ansell failed to

provide competent evidence that he had been appropriately treated for the

condition that caused him to do so.

       Berg again supports the trial court's conclusion. After the defendant in
Berg was convicted of raping and molesting his girlfriend's 14-year-old daughter

in their home, the trial court imposed an order restricting contact with other

female children, including the defendant's biological daughter, to contact

supervised by a responsible adult with knowledge of the defendant's conviction.
147 Wn. App. at 930. In affirming the trial court's order, we reasoned that an
order restricting contact with the defendant's daughter, who lived in the home
where the defendant was acting as her parent, was reasonable because the

victim in Berg also lived in the home where the defendant was acting as her

parent. 147 Wn. App. at 943. Thus, allowing contact with his daughter would
permit "'virtually the same arrangement again with another young girl,'" which we
found objectionable. Berg, 147 Wn. App. at 942-43.
        As was the victim in Berg, the victims here were present in the home of

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No. 70457-5-1/10



their abuser when they were abused. Even though the victims did not live with

Ansell, they were present in a home where Ansell was acting as their parental

figure. Moreover, Ansell used his position as a parental figure to further his

reprehensible objectives. Therefore, as in Berg, an order restricting Ansell's

contact with his children is reasonably necessary to protect his children from any

attempts by Ansell to foster the kind of trust in him as a parental figure he

fostered in the victims of his abuse. Similarly, Ansell's position—that his abuse

of his children's peers in his children's presence were not actions involving a risk

of emotional or physical harm to his children—need not have been credited by

the sentencing court.

       Ansell does not attempt to distinguish Berg. Rather, he urges us to rely on

Ancira and Rainev. Although both cases articulate the correct legal standard,

both are distinguishable on their facts.

       In Ancira. we struck down a no-contact order because there was no

evidence that prohibiting the defendant from all contact with his children was

reasonably necessary to preventthem from the harm of witnessing domestic
violence. 107 Wn. App. at 654-55. The State failed to explain "why prohibiting

Ancira from contacting his wife would not protect the children from the harm of

witnessing domestic violence between their parents." Ancira, 107 Wn. App. at

655. Unlike in Ancira, however, where the no-contact order as to the defendant's

wife effectively prevented the potential harm with which the court was concerned,

the limitations on Ansell contacting his children are the only barriers preventing

the potential harm with which the court was concerned here. "So long as the

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No. 70457-5-1/11



defendant complied with the order prohibiting contact with his wife, the court had

no reason to believe allowing him contact with his children would cause them

further exposure to domestic violence." Berg, 147 Wn. App. at 943 (explaining

the basis for our holding in Ancira). Thus, Ancira is inapposite.

           In Rainev, our Supreme Court held that a no-contact order preventing the

defendant from contacting his daughter did not violate the defendant's

constitutional right to parent. 168 Wn.2d at 380. The court ruled in this manner,

in part, because the defendant had previously kidnapped his daughter and taken

her to a foreign country. Rainev, 168 Wn.2d at 379. However, the fact that the

defendant in Rainev was convicted of perpetrating a felony against his own child

does not undermine the trial court's conclusion in this case. Rainev does not

stand for the proposition that a trial court may only impose sentencing conditions
restricting a defendant's access to his own children if the defendant has been

convicted of committing a felony against his own child.

           Neither Ancira nor Rainev is on point. Therefore, we conclude, in light of

Berg, that the second conclusion of law is supported by the trial court's findings

of fact.

           The trial court's third conclusion of law, "The crime-related prohibitions set

forth in this order are narrowly drawn to effectuate the compelling state interest of
protecting children, specifically the defendant's children," is also supported by the
findings of fact and, again, by Berg. As with the first two conclusions of law, the
third is supported by the finding thatAnsell admitted to sexually abusing children
while his own children were in close proximity. Berg confirms that the crime-

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No. 70457-5-1/12



related prohibitions were narrowly drawn to effectuate the State's interest. In

Berg, we affirmed the trial court's order restricting the defendant's contact with

any female minors, including his own daughter, concluding that it was sufficiently

tailored to the crime because "it addresses the potential for the same kind of

abuse at issue here, which Berg was able to achieve by exploiting a child's trust

in him as a parental figure." 147 Wn. App. at 944; see also State v. Warren, 165

Wn.2d 17, 35, 195 P.3d 940 (2008) ("[W]e agree with the Court of Appeals that

the order prohibiting contact with [the defendant's wife] was directly related to the

circumstances of the crime and was not an unconstitutional restriction on [the

defendant's] constitutional rights.").

       Similarly, in this case, the restrictions imposed by the trial court on Ansell

having contact with his own children address the potential for the same kind of

abuse at issue in this case, which Ansell was able to achieve by exploiting the

trust placed in him by children as their parental figure. Preventing Ansell from

contacting his children by telephone, for example, prevents him from again

fostering the same kind of trust he had with the victims of his abuse. Prohibiting

Ansell from having unsupervised written correspondence with his children

similarly prevents him from again fostering the same kind of trust he had with the

victims of his abuse. Finally, prohibiting in-person contact until a determination

was made that the written contact was not negatively affecting the children,

further safeguards his children from being exploited. The trial court's decision to

impose restrictions on all authorized methods of contact—as well as the total

prohibition on communication by telephone—between Ansell and his own

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children during the time in which he remains incarcerated is, thus, narrowly

drawn to effectuate the State's compelling interest in protecting Ansell's children.

      Affirmed.




We concur:




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