          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In the Matter of the Parentage of:                NO. 73207-2-1

T.W.J, and I.B.J.

                    Minor Children,
                                                                                      CJ i
ANDREA ANTHONY,

                     Respondent,                                                      V?
                                                  DIVISION ONE                        CO

             and


AWAN JOHNSON,                                     UNPUBLISHED OPINION

                     Appellant.                   FILED: January 25, 2016



       Lau, J. — Awan Johnson appeals the trial court's order granting Andrea

Anthony's motion for a domestic violence protection order. He contends evidence that

he made a threat to kill Anthony alone is insufficient to support the trial court's

conclusion that he represents a credible threat to Anthony's safety. We disagree.

Because the record supports the trial court's conclusion that Johnson's threat inflicted a

reasonable fear of physical harm, the trial court did not abuse its discretion when it

granted Anthony's motion for an order of protection. We affirm.
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                                          FACTS

       Awan Johnson and Andrea Anthony dated for approximately four years. They

have two children, T.J. and I.J., who at the time of the proceedings belowwere ages 3

and 2. G.R., age 12, is Johnson's daughter from a previous relationship. Johnson "was

emotionally and verbally abusive" throughout his relationship with Anthony. Clerk's

Papers (CP) at 45. Anthony left the relationship "when the abuse started to become

physical." CP at 45. In July 2014, Anthony and Johnson agreed to a parenting plan,

which was entered in October 2014.

       On November 15, 2014, Anthony received a text message from Johnson that I.J.

was experiencing breathing problems and he called for an ambulance. Anthony went

over to Johnson's residence and discovered both I.J. and T.J. "had no pants on." CP at

486. Anthony also learned that G.R. had been there earlier that day. While the

paramedics examined I.J., Johnson insisted that Anthony leave and called the police.

When the police arrived, they instructed Anthony to take I.J. and T.J. to the lobby of

Johnson's building. Anthony left with I.J. and T.J.

       After this incident, Anthony noticed a decline in T.J.'s behavior. T.J. became

"angry and defiant." CP at 487. Daycare workers informed Anthony that T.J. exhibited

increased behavior problems at school, including spitting on teachers, and handling his

own feces. Some of T.J.'s behavioral problems were sexual in nature. For example, on

one occasion he asked his younger sister I.J. to touch his genitals. Eventually, T.J. told

Anthony that G.R. had sexually molested him. Child therapist Suzanne McCallum later

determined that T.J. likely suffers from posttraumatic stress disorder and "[h]is
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engagement in the reported sexualized play attempts suggest sexual abuse and/or

exposure to inappropriate, very specific sexual material." CP at 633.

       On December 12, 2014, Anthony filed a petition to modify the parenting plan, a
motion for an ex parte restraining order preventing Johnson from allowing G.R. to

contact T.J. and I.J. and other motions for temporary relief. The court entered an ex

parte restraining order and an order to show cause, limiting Johnson's visitation to

supervised visits.

       The trial court scheduled a hearing for January 28, 2015. On January 21,

Johnson's attorney sent Anthony's attorney an e-mail stating Johnson terminated her

representation and threatened to kill Anthony:

              As of 7:30a.m. [sic] yesterday Awan Johnson terminated me, hung
       up the telephone and removed all authority I have to act on his behalf. He
       further will not answer the phone.

             FURTHER AND PLEASE BE ADVISED, I called you several times
      today to warn you on behalf of your client that a conditional threat to kill
      was made by my former disgruntled client indicating that if he "gets
       screwed" which he may interpret as any restrictions on his custodial rights,
       he is going to "Kill Andrea [Anthony]". He repeated this and variations,
       perhaps in anger more than once.

CP at 650. Anthony sought and obtained a temporary domestic violence order of

protection the same day. The trial court consolidated the hearing on this order with

Anthony's other motions for temporary orders and to modify the parenting plan.

      On February 10, 2015, the court heard argument on Anthony's motions. The

court found adequate cause to proceed to trial and issued temporary orders allowing

Johnson the same residential time provided in the parenting plan conditioned on no

contact by G.R. with T.J. and I.J. The court also issued a one-year domestic violence


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protection order preventing Johnson from contacting Anthony until February 2016.

Johnson appeals the trial court's domestic violence protection order only.

                                         ANALYSIS

       Standard of Review


       Johnson incorrectly asserts that this case presents a legal question warranting

de novo review. It does not. A trial court's decision to grant a protection order is a

matter of judicial discretion. "Where the decision or order of the trial court is a matter of

discretion, it will not be disturbed on review except on a clear showing of abuse of

discretion, that is, discretion manifestly unreasonable, or exercised on untenable

grounds, or for untenable reasons." State ex re. Carroll v. Junker. 79 Wn.2d 12, 26, 482

P.2d 775 (1971).

       Protection Order


       Johnson argues the trial court erred when it granted Anthony's motion for a

domestic violence protection order because evidence that he made a threat to kill

Anthony, on its own, is insufficient to show that "he would likely carry out the threat." Br.

of App. at 7. We conclude the trial court did not abuse its discretion when it found that

Johnson "represents a credible threat" to Anthony. CP at 413.

       The Washington Domestic Violence Prevention Act (DVPA) provides for an

action to obtain "an order of protection in cases of domestic violence." RCW 26.50.030.

The DVPA defines domestic violence as "[p]hysical harm, bodily injury, assault, or the

infliction of fear of imminent physical harm, bodily injury or assault, between family or

household members." RCW 26.50.010(1). A petitioner seeking a domestic violence

protection order "shall allege the existence of domestic violence, and shall be

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accompanied by an affidavit made under oath stating the specific facts and

circumstances from which relief is sought." RCW 26.50.030(1).

       The trial court here primarily relied on the e-mail from Johnson's attorney warning

Anthony of Johnson's threat to kill her. The trial court found the threat credible because

an attorney's disclosure of confidential communications is extraordinary:

              Nevertheless, it's an extraordinary thing. The one thing that all
       lawyers get taught in law school and learn in their bar exam, regardless of
       what state they're in, is the sanctity of the attorney/client relationship and
       the need to not disclose any confidences or secrets, except in
       extraordinary circumstances; and the one exception that's recognized in
       this state and California, I happen to know, is where the client makes a
       statement threatening harm, then the attorney has the right to disclose
       that and may even have the duty to disclose that.

              So I have to say that it would be really an extraordinary thing for an
       attorney to claim that their client—falsely claim that their client had
       threated to harm the other party. I mean, that's—really would be
       extraordinary and remarkable.
              And I have to go with—since I don't know her, I have to go with the
       assumption that she was reporting what she had heard; and for that
       reason, I'm going to go ahead and enter the protection order.

Report of Proceedings (RP) (Feb. 10, 2015) at 40-41. The trial court properly relied on

this evidence when it determined that Johnson "represents a credible threat." CP at

413. See ER 1101(c)(4) (The Rules of Evidence, including hearsay, do not apply in

protection order proceedings under RCW 26.50). Accordingly, the trial court reasonably

concluded that the threat constitutes domestic violence, defined as "the infliction of fear

of imminent physical harm, bodily injury or assault." RCW 26.50.010(1). Granting

Anthony's motion for a domestic violence protection order was not an abuse of

discretion.




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       Johnson argues the trial court could not, as a matter of law, find his threat

credible absent additional evidence. According to Johnson, "[o]ther than the statement

itself, there is no other evidence on the basis of which a court could conclude that he

would likely carry it out in the absence of an order." Br. of Appellant at 8. But Johnson

cites no authority supporting this proposition. See DeHeer v. Seattle Post-lntelliaencer.

60 Wn.2d 122, 126, 372 P.2d 193 (1962) ("Where no authorities are cited in support of

a proposition, the court is not required to search out authorities, but may assume that

counsel, after diligent search, has found none."). Essentially, Johnson asks us to

reevaluate the evidence considered by the trial court and arrive at the opposite

conclusion. But it is the trial court's role to weigh the persuasiveness of the evidence,

and we typically will not disturb factual determinations on appeal. See Greene v.

Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999) ("We will not substitute our

judgment for the trial court's, weigh the evidence, or adjudge witness credibility.")

       Further, we note that other evidence in the record supports the trial court's

conclusion that Johnson's threat was credible.1 Anthony included with her petition for

an order of protection a declaration containing allegations of past instances of domestic

violence:


              The reason I decided to leave Awan [Johnson] is because the
       verbal arguments started to become physical. On two occasions, each
       while I was holding a child, he came up and poked his finger hard in the

       1Johnson argues that other evidence of domestic violence did not factor into the
trial court's decision. Indeed, neither the trial court's written order nor its comments
during the colloquy reference any evidence other than Johnson's threat to kill Anthony.
Regardless, we may affirm the trial court on any basis supported by the record. See
Hoflin v. City of Ocean Shores. 121 Wn.2d 113, 134, 847 P.2d 428 (1993) (We will
affirm the trial court if it reached the right result, albeit for the wrong reason.)
No. 73207-2-1/7



      side of my head. On another occasion when I was holding [T.J.] and he
      was holding [I.J.], he was yelling very close to my face, and I pushed him
      back a little. He smacked my arm and said, "You hit me first." The last
      was when he brought [G.R.] over after swearing at me on the phone with
      her in the car. He walked in the room while I was putting the kids to bed
      for a nap and told me not to "fucking look at him." I was typing notes in my
      phone and [he] said he was going to throw it off the deck and grabbed it. I
      held on when he grabbed it and, during the process, my finger was cut
      and bruised. I called 911 and then hung up.

            ... I was afraid the fighting would continue and one of the children
      would get caught in the middle and hurt. That is why our relationship
       ended.


             There have been many other instances of verbal abuse. [Johnson]
      has said to me, "Why don't you just go die" in front of the kids ... If he
      doesn't agree with something I say, he will call me an "idiot" and tell me to
      "shut the fuck up." He has told me he hates me in front of [T.J.] and called
      me a "bitter bitch" in front of the children many times.

CP at 773-74. Anthony's declaration indicates that Johnson became particularly hostile

as the legal dispute regarding their children continued. For example, after Anthony

disclosed her witness list for the pending trial, Johnson sent her a text message stating,

"Fuck you. You are going to hurt yourself. Watch." CP at 776. Anthony stated in her

declaration that "I am scared that his hostility toward me has reached a new level and

that he may try to make good on his threat." CP at 741. She also recalled that during

their relationship Johnson "once told [her] that he visualized chopping off the head of his

ex-partner and mother of [G.R.]." CP at 740. Under these circumstances, the trial court

could have reasonably concluded that Johnson's threat was credible.

       In his reply brief, Johnson argues that the facts here do not reasonably relate to

the fear of imminent harm, citing Freeman v. Freeman, 169 Wn.2d 664, 676, 239 P.3d

557 (2010) ("the facts do not suggest Robin's fear of Rob is based on a reasonable

threat of imminent harm."). Freeman is distinguishable. First, Freeman involved a
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permanent protection order. Freeman. 169 Wn.2d at 670-72. To grant a protection

order exceeding one year, the court must make an additional finding, "the respondent is

likely to resume acts of domestic violence against the petitioner. .. when the order

expires." RCW 26.50.060(2). Here, Anthony was not required to show that Johnson

would "likely" resume acts of domestic violence after the order expired because she did

not seek an order exceeding one year. Further, the Freeman court concluded the

protected party failed to show a reasonable fear of imminent harm because the parties

had no contact for ten years and the respondent had never violated the protection order

already in place. Freeman. 169 Wn.2d at 675. In contrast, the record here shows

repeated conflict and hostility between the parties including Johnson's death threat.

The record amply supports the trial court's conclusion that Johnson represented a

credible threat. He failed to show that the trial court's decision was "exercised on

untenable grounds, or for untenable reasons." Junker. 79 Wn.2d at 26.

       Attorney Fees

       Anthony seeks attorney fees under the DVPA's attorney fees provision and RAP

18.1. See RCW 26.50.060(1 )(g), RAP 18.1. In reply, Johnson does not dispute

Anthony's request for fees or the fee affidavit she submitted in support. We therefore

grant Anthony's request for attorney fees under RCW 26.50.060(1) and conditioned on

her compliance with RAP 18.1. See, e.g.. Freeman. 169 Wn.2d at 676 (acknowledging

that the DVPA authorizes an award of reasonable attorney fees incurred by a protected

party seeking an order of protection).




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                                   CONCLUSION

      For the foregoing reasons, we affirm and award Anthony attorney fees subject to

compliance under RAP 18.1.




WE CONCUR:




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