Opinion
No. 81375-7-I
06-15-2020
JEFFREY ROBERT KIRKWOOD, Appellant, v. MATTHEW PAUL ENGELBRECHT, Respondent.
UNPUBLISHED OPINION
- Jeffrey Kirkwood accused his ex-wife's husband, Matthew Engelbrecht, of molesting his pre-teen daughter, J.K. Jeffrey filed a petition for a domestic violence protection order to preclude Matthew from having any contact with J.K. or Jeffrey's other two minor children. The court, after conducting a multi-day evidentiary hearing, denied the petition, finding insufficient credible evidence to establish that the alleged domestic violence occurred. Jeffrey appeals the denial order.
For clarity, we will refer to the parties by their first names. No disrespect is intended.
We conclude the court did not abuse its discretion in denying Jeffrey's request to call J.K. to testify in person. We further conclude the court's written findings of fact were sufficient to meet the requirements of RCW 26.50.060. As to Jeffrey's remaining arguments, we cannot or will not address them because he failed to provide us with the complete record on which the trial court relied or asks us to overturn credibility determinations. We therefore affirm.
FACTS
Jeffrey has three children with Katrina Engelbrecht, J.K., and two younger sons, D.K. and A.K. Jeffrey and Katrina divorced in 2013, and Jeffrey has had custody of the three children since sometime in 2017. Katrina married Matthew, with whom she shares an infant son, O.E. Matthew also has a young son, T.E., from a prior relationship.
At the time of the alleged incident, J.K. was 12 years old, D.K. was 9, and A.K. was 7.
Jeffrey contends that on May 6, 2018, J.K. called him while on a weekend trip to Leavenworth with Katrina, Matthew, and the four other children. J.K. allegedly told Jeffrey that Matthew "would not keep his hands off her." J.K. also allegedly reported to her father that she and Matthew shared a bed on the trip and that Matthew put his legs over her in bed and massaged her back, all the way down to her tailbone, asking her if she liked it. J.K. also told Jeffrey that she had been in the hotel hot tub the previous evening with Matthew and that, the next morning, she had allegedly received a note from another hotel occupant, who had seen J.K. and Matthew together in the hot tub. The note, which Jeffrey attached to his petition, instructed J.K. to seek help from an adult if she felt uncomfortable.
On May 8, 2018, J.K. went to an appointment with her counselor, Mya Adams. According to Adams's treatment notes, J.K. reported feeling "very uncomfortable" with Matthew, describing situations where he touched her hair, rubbed her back, had her sit in his lap, and told her she was "so pretty." When Adams met with J.K. and Jeffrey, he expressed concerns to her that Matthew was "groom[ing]" J.K. Adams reported J.K.'s statements to CPS.
CPS referred the matter to the Providence St. Peter Sexual Assault Clinic and Child Maltreatment Center. On May 23, 2018, J.K. was evaluated by Heather McLeod, an advanced registered nurse practitioner at the clinic. According to McLeod's report, J.K. reported that she had slept in the same bed as Matthew, during which he had touched her sexually and told her she was gorgeous. J.K. also told McLeod that when in the hotel hot tub, Matthew had pulled her onto his lap, leading a stranger to advise her to find someone to talk to if his touching made her uncomfortable. McLeod recommended that J.K. and her siblings have no contact with Engelbrecht while the investigation of J.K.'s sexual abuse allegations was underway.
This report was originally filed under the cause number for the divorce matter between Katrina and Jeffrey.
On May 21, 2018, Jeffrey filed the petition for a domestic violence protection order against Katrina and Matthew. A commissioner entered a temporary protection order against Matthew as to all three of Jeffrey and Katrina's children but denied it as against Katrina. The court renewed the temporary order on multiple occasions pending a full hearing.
We do not have the full transcript of the evidentiary hearing conducted by the court or a complete set of exhibits the court admitted during the hearing. What Jeffrey chose to provide us indicates that the court heard testimony from McLeod on September 19, 2018, and from Matthew and from Katrina's mother, Christine Del Buono, on October 18, 2018. Although the court noted that both Katrina and Jeffrey testified, we do not have transcripts of their testimony.
McLeod testified she interviewed J.K. and conducted a sexual assault assessment. J.K. told McLeod she had traveled with her mother and stepfather to Leavenworth, that the family had shared a single hotel room, and that she had slept in the same bed as Matthew because there were so many people in the room. J.K. recounted that on the second night in the hotel room, Matthew gave her a neck and back massage and touched her under her underwear. J.K. drew a diagram for McLeod on an anatomical diagram of a female child indicating the areas Matthew had touched, including her shoulders, back, buttocks, and legs. J.K. also told McLeod that Matthew had touched her under her t-shirt, under her bra, and on her buttocks and the front of her thighs over her shorts.
J.K. reported that Matthew had repeatedly pulled her back toward his lap and wrapped his legs around the bottom half of her body while they were in the bed together. And McLeod described J.K.'s statements that Matthew "repeatedly told her she was beautiful and played with her hair." J.K. told McLeod that she thought Matthew had tried to kiss her head or neck but she moved away from him to prevent it from happening. McLeod opined that the behaviors J.K. described were consistent with "grooming," conduct intended to normalize sexual touching.
McLeod also testified that J.K. described being in the hotel hot tub with Matthew during that same weekend. J.K. told McLeod that while sitting in the hot tub, Matthew pulled her in front of him onto his lap so that her hips and buttocks were in his groin area. McLeod also described J.K.'s report of receiving a note from a hotel guest advising J.K. to tell someone if she was being touched inappropriately.
When McLeod asked why J.K. did not report Matthew's behavior to her mother, J.K. said she was afraid her mother would believe she was "just trying to cause trouble." McLeod opined that J.K. provided "very clear and consistent detail about not only the environment that she was in but the way that she felt and the issues that had occurred." J.K. had, in her opinion, the vocabulary sufficient to express what she was thinking and what had happened to her. McLeod saw no "red flags" to suggest Jeffrey or anyone else was coaching J.K. in responding to her questions. Based on her assessment, McLeod testified that prolonged contact between J.K. and Matthew would be deleterious to J.K.'s health and safety.
On cross examination by Matthew's attorney, McLeod stated she was aware that Child Protective Services (CPS) had issued a "founded" finding for physical abuse of J.K. and her brother by Matthew. She was not aware, however, that Jeffrey had previously used that report to seek a protection order, which the trial court had denied. Nor was McLeod aware of a domestic violence evaluation Jeffrey had undergone that documented a "long-standing pattern of abusive behavior" toward Katrina. She also was unaware that the domestic violence evaluator had expressed concerns that Jeffrey's contempt for his former wife would impact the emotional and psychosocial development of the children.
Matthew testified that he and Katrina planned the trip to Leavenworth with the five children after the court denied Jeffrey's prior petition for a protection order and allowed them to resume unsupervised visits with Katrina and Jeffrey's three children. The plan was for Matthew to sleep in one of the room's two beds with his son, T.E., for Katrina to sleep in the other bed with her boys, for J.K. to sleep on a rollaway bed, and for the youngest child, O.E., to sleep in his playpen. But J.K. allegedly complained that the rollaway bed was uncomfortable, and she asked to sleep in the bed with Matthew and T.E. Katrina assented to J.K.'s request.
According to Matthew, both he and Katrina were with the children at all times J.K. claimed Matthew had touched her. The only time Katrina was not present was Sunday morning when he took the kids to the pool while Katrina packed. But, he stated, Katrina watched them play in the pool from the hotel room window. Matthew denied ever touching J.K.'s breasts or ever touching her inappropriately. He also denied pulling J.K. onto his lap or toward his groin area or wrapping his legs around her while in bed.
Matthew confirmed that the family spent time together in the hotel pool and hot tub. He testified that he and the children ran back and forth between the pool and the hot tub and that he had "wrestled" with the kids in the tub. But he had learned from Jeffrey's counsel, after-the-fact, that the hotel had surveillance videos capturing his and the children's activities in the pool and hot tub. He watched the video, and the video showed that nothing inappropriate occurred between him and J.K. While he was in the hot tub Saturday evening, J.K. came toward him, in a playful manner, but two of the other children jumped in at the same time. As a result, he had one son holding him by the neck and another son grabbing his right arm when J.K. was in the hot tub with him. From his review of the video footage, that interaction was the only time he actually touched J.K. in the tub.
Matthew further testified that J.K. was not upset when they drove home on Sunday afternoon. When the family got home, J.K. was outside taking pictures while he mowed the lawn. And, he stated, since the sexual assault allegations arose, he had not been contacted or interviewed by either CPS or law enforcement. He retained a criminal defense attorney and agreed to undergo a polygraph examination regarding J.K.'s accusations.
Del Buono, Katrina's mother, testified in support of Jeffrey's petition. Del Buono, a social worker and mandatory reporter, testified that after she learned of J.K.'s accusations from Jeffrey, J.K. disclosed more details of the Leavenworth trip to her. Del Buono testified J.K. told her that Matthew had touched her breasts under her bra, that he had touched her stomach, and he had put his hands down the front of her pants under the waistband. J.K. also said that when Matthew wrapped his legs around her, he said "this is how I touch your mother." J.K. told her grandmother she had not disclosed these details to any investigator because she was too embarrassed to talk about it and did not want to make her mother angry.
The court issued an oral ruling denying Jeffrey's domestic violence petition on January 3, 2019. The court indicated it had considered the testimony of McLeod, Matthew, Del Buono, Katrina, and Jeffrey. It also considered Adams's counseling notes from the May 8, 2018 session, McLeod's written report of her May 23, 2018 assessment, the diagram J.K. prepared depicting where Matthew allegedly touched her, CPS's "founded" abuse finding against Matthew from a 2017 investigation and a declaration that Del Buono had signed on August 18, 2018 describing her conversation with J.K.
The court also considered, and admitted into evidence, several other exhibits, but Jeffrey has not provided us with any of these exhibits. These exhibits include a forensic psychological evaluation of Jeffrey, a domestic violence screening report of Jeffrey, his 2018 petition for an order for protection that the court previously denied, a thumb drive, and text messages. Because Jeffrey has not provided a transcript of his testimony or that of Katrina or provided us with these exhibits, we do not know their contents.
The court excluded the note that J.K. allegedly received from the anonymous stranger at the Leavenworth hotel as unauthenticated hearsay.
In denying Jeffrey's petition, the court made several credibility determinations. It found neither Jeffrey nor Del Buono credible. The court deemed Del Buono's credibility suspect because she had had a falling out with Katrina, who refused to allow Del Buono to visit her grandchildren, and she was evasive in answering questions on cross examination. The court similarly deemed Jeffrey not credible because of the timing of J.K.'s disclosures, the nature of the conversations he had with J.K., and the unprompted disclosures that allegedly occurred. While the court did not find that Jeffrey had coached J.K., the totality of the circumstances—including the history of the parties, the alleged incidents, Jeffrey's testimony about the interactions, and J.K.'s purported subsequent and more detailed disclosures to Del Buono—all raised concerns that J.K.'s disclosures were not "organic."
And while the court noted that it found McLeod to be credible, it refused to base its decision on her testimony and written report because:
. . . the court has to dig deeper as to whether or not, given the circumstances, that information as a whole supports a finding that more likely than not an act or acts occurred; the reason being is, Ms. McCloud [sic] doesn't have the benefit of hearing from the parties, from the additional witnesses, et cetera, doesn't have the background, doesn't have all of that information. And so while I believe what she was saying is accurate and credible, that's not where the testimony ends.
Conversely, while acknowledging that Katrina had admitted falsely testifying in a prior case against Jeffrey, the court nevertheless found Katrina's testimony regarding the Leavenworth trip, and her interactions with J.K. during the trip to be credible. He also found the way in which Katrina handled a telephone conversation with J.K. after allegations against Matthew arose to be appropriate and that she had conducted herself in a manner not to influence J.K.
The court also deemed Matthew's testimony, particularly his recounting of events in the hot tub, to be "very credible." Had J.K.'s version of events been supported by the surveillance video, the court would have expected Jeffrey to present it. Matthew's testimony regarding the events captured by the surveillance cameras was "virtually unchallenged" by Jeffrey. This fact "bolster[ed] [Matthew's] credibility as to all of the other issues he testified to."
The court concluded:
Because I find that Mr. Engelbrecht is credible, I find that Mr. Kirkwood is not credible, as well as my findings of credibility as to the other witnesses, in conjunction with the evidence. The court is going to sign an order denying the petition. I'm going to find that a preponderance of the evidence is not established that the petition should be granted.
. . .The written denial order found that "A preponderance of the evidence has not established that there is domestic violence."
It's not that I don't believe [J.K.]. It's that I don't believe Mr. Kirkwood and I do believe Mr. Engelbrecht. And because of that, I'm going to sign the denial order.
After the court issued its oral ruling, Jeffrey asked that the denial order reflect the fact that the court had denied his request to call J.K. to testify. The court denied this request, adding that if Jeffrey wanted to present written findings and conclusions, the court would review them. But it noted for the record that the court understood it had the discretion to decide whether to hear from a minor. The court emphasized its concern with having a minor testify in domestic violence cases. And given the high level of conflict between J.K.'s parents, the court deemed it "highly inappropriate" for J.K. to be brought to court to testify. The court indicated a willingness to review and sign any additional findings "as necessary."
Jeffrey appeals the court's denial of the protection order.
ANALYSIS
Jeffrey contends on appeal that the court erred in denying Jeffrey's request to call J.K. to testify in person and that the court's factual findings were inadequate. The rest of Jeffrey's arguments are either merely challenges to the court's credibility determinations, which we will not review on appeal, or raise issues we cannot address because we lack a sufficient record to do so.
Matthew has not filed a responsive brief. However, the lack of a response does not require us to reverse the trial court's denial order. See Adams v. Dep't of Labor & Indus., 128 Wn.2d 224, 229, 905 P.2d 1220 (1995) ("A respondent who elects not to file a brief allows his or her opponent to put unanswered arguments before the court, and the court is entitled to make its decision based on the argument and record before it. . . . The quantity or quality of briefing should not affect the standard of review used by the court."). --------
Excluding J.K.'s Testimony
Jeffrey contends the court erred in refusing to permit J.K. to testify. He argues the court's decision was based on a misunderstanding of Aiken v. Aiken, 187 Wn.2d 491, 387 P.3d 680 (2017). Jeffrey further argues that under Aiken, the court violated J.K.'s due process rights by not allowing her to testify. We reject both arguments.
Our Supreme Court has made it clear that the decision to allow in-person testimony and cross-examination of child witnesses in domestic violence protection order hearings is within the sound discretion of the commissioner or judge conducting the hearing. Aiken, 187 Wn.2d at 497. We will not disturb such an exercise of discretion absent a clear showing that the court abused its discretion. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002).
In Aiken, the court adopted this court's reasoning from In re Gourley, 124 Wn. App. 52, 58, 98 P.3d 816 (2004), to conclude that "chapter 26.50 RCW does not require a trial judge to allow live testimony or cross-examination in every protective order proceeding." Id. at 499; see also Gourley, 124 Wn. App. at 58 (concluding that there is no statutory provision in chapter 26.50 RCW requiring oral testimony). Although the court has expressed a preference for live testimony, there is no requirement that alleged child victims testify in person. Aiken, 187 Wn.2d at 508.
Here, the court denied Jeffrey's request for J.K. to testify, reasoning that:
I'm also just going to note that under Aiken, it's this court's belief that this court has that discretion to determine whether or not to hear from
a minor. And I'm going to reemphasize my concern with the emphasis on having a minor testify in these circumstances. Given the high level of conflict, I think that would have been highly inappropriate, and that is why I declined to do so. And I think that's consistent with how this court typically approaches these types of cases.This decision is supported by the limited record Jeffrey has provided us. There was a history of domestic violence between Jeffrey and Katrina. The court had reviewed domestic violence assessments that were likely unfavorable to Jeffrey. And Jeffrey had previously and unsuccessfully sought a protection order to preclude Matthew from having any contact with his three minor children. Given this level of conflict between Jeffrey, Katrina and Matthew, we cannot say the court's decision not to have J.K. testify in person was an abuse of discretion.
Jeffrey argues the court's reading of Aiken was erroneous. We disagree. The court correctly concluded that under Aiken, it had the discretion to allow or refuse to hear live testimony from a minor alleged to be a victim of sexual violence. The court had counseling records, CPS reports and medical records, as well as testimony from McLeod, Jeffrey, and Del Buono as to the content of J.K.'s allegations.
Jeffrey argues the court found J.K.'s allegations to be credible. But this argument mischaracterizes the court's oral ruling. During his closing argument, Jeffrey's counsel apparently stated that if the court denied the petition, Jeffrey would have to tell J.K. that the court did not believe her. In response to this argument, the court made it clear that its ruling was based on the evidence presented to it, not on a credibility assessment of J.K. It noted that
. . . it concerns me that this discussion would even take place with this child in a manner in which this child would be made to believe that she is not believed by this court. It's not that I don't believe [J.K.]. It's that I don't believe Mr. Kirkwood and I do believe Mr. Engelbrecht.
In light of the court's concerns that Jeffrey was using J.K. as a tool against his ex-wife and her husband and abusing the litigation process to do so, we cannot conclude the court abused its discretion in deciding not to permit Jeffrey to call J.K. to testify.
Jeffrey argues the decision not to allow J.K. to testify violated J.K.'s due process rights as a victim of domestic violence. We have no record that this argument was raised below. Under RAP 2.5(a)(3), we will not consider an issue raised for the first time on appeal unless it is a manifest error affecting a constitutional right. In re G.W.-F., 170 Wn. App. 631, 649, 285 P.3d 208 (2012). Even if an alleged error is of constitutional magnitude, an appellate court must determine whether the error is "manifest." State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). "Manifest" in RAP 2.5(a)(3) requires a showing of actual prejudice. Id. To demonstrate actual prejudice, there must be a plausible showing by the appellant that the asserted error had "practical and identifiable consequences in the trial of the case." State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). Jeffrey has not made this showing.
Jeffrey could have presented J.K.'s testimony through a sworn declaration. See Gourley v. Gourley, 158 Wn.2d 460, 467, 145 P.3d 1185 (2006) (commissioner did not err in considering declaration testimony from 14-year-old daughter describing sexual touching by father; the declaration was admissible under ER 1101(c)(4)). And even if J.K. had testified, we are unconvinced the outcome would have been different. The court expressed serious questions about the timing of J.K.'s disclosures—they occurred the first weekend after the court denied Jeffrey's prior protection order request, allowing Katrina and Matthew to have unsupervised visitation with the children—as well as concerns about Jeffrey's litigiousness and Del Buono's bias toward Katrina and Matthew. We therefore decline to reach Jeffrey's constitutional claim on appeal.
Lack of Adequate Record for Review
Jeffrey contends the court "had a history" with his family law case and this prior knowledge of the family dynamics led the court to prejudice the evidence. We simply have an insufficient record to address this claim.
An appellant bears the burden of perfecting the record so that we have before us all the evidence relevant to deciding the issues presented. Yorkston v. Whatcom County, 11 Wn. App. 2d 815, 824, 461 P.3d 392 (2020). When the appellant fails to so perfect the record, we are necessarily compromised in our ability to fairly evaluate the findings in light of that record. Id. We may decline to reach the merits of an issue if the burden of perfecting the record is not met. Id.
We do not have the complete verbatim report of proceedings or all relevant exhibits from the hearing. There were pleadings from the family law case admitted at the hearing. There was apparently significant evidence regarding the ongoing battles between Jeffrey and Katrina. But we have none of that evidence before us. Without that evidence, we decline to reach the merits of any claim that the court's decision to deny the protection order was based on an unrelated bias against Jeffrey.
Challenges to the Court's Credibility Determinations
The court found that a preponderance of evidence did not establish that domestic violence had occurred. Jeffrey challenges this finding, arguing J.K.'s statements to Del Buono and McLeod met this evidentiary standard under RCW 26.50.010(3). But the court's oral ruling clearly indicated that it rejected Del Buono's testimony as not credible and that it would not rely on McLeod's testimony because the court was in a better position to adjudge credibility than she was. On review, we "defer to the trier of fact on the persuasiveness of the evidence, witness credibility, and conflicting testimony." In re Knight, 178 Wn. App. 929, 937, 317 P.3d 1068 (2014).
Although Jeffrey has not supplied the entire transcript, we have Matthew's testimony in which he denied touching J.K. in any sexual or otherwise inappropriate way. He testified the video evidence showed he and his children were merely playing together in the hot tub and that it depicted no touching similar to that reported by J.K. Matthew further testified that J.K. never expressed any concern about sleeping in the same bed with him, that his young son was asleep in the bed with them, that J.K. was the one who asked to do so because she was uncomfortable on the rollaway, and that her mother was physically present in the same room both nights. The court weighed conflicting testimony, assessed witness credibility, and ultimately believed Matthew's version of events over the testimony of Jeffrey, Del Buono, or McLeod.
Jeffrey contends the court erroneously concluded that because Jeffrey did not present the surveillance video as evidence, that evidence must have supported Matthew's version of events. But "where evidence which would properly be a part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him." Walker v. Herke, 20 Wn.2d 239, 249, 147 P.2d 255 (1944). The video footage showed Matthew and J.K. in the hot tub at the Leavenworth hotel. Matthew received a copy of this evidence from Jeffrey's counsel, and he testified that it showed him playing with his two sons and J.K. together and did not show him engaging in any sexual misconduct. Jeffrey did not dispute this testimony. The court could conclude here that Jeffrey's failure to produce the video evidence, over which he had control, would support Matthew's version of events and was therefore unfavorable to him.
The record before this court, albeit limited, supports the finding that there was insufficient credible evidence to establish domestic violence occurred.
Lack of Findings Required by RCW 26.50.060
Jeffrey next challenges the court's failure to enter written findings of fact and conclusions of law as required by RCW 26.50.060(7). RCW 26.50.060(7) provides: "If the court declines to issue an order for protection or declines to renew an order for protection, the court shall state in writing on the order the particular reasons for the court's denial."
The denial order signed by the court is a standard form order. The court checked the box finding "A preponderance of the evidence has not established that there is domestic violence." Before signing this order, the court issued a lengthy oral ruling explaining its assessment of the evidence. We conclude the court adequately stated in writing the reason it denied Jeffrey's petition.
Jeffrey relies on this court's decision in Maldonado v. Maldonado, 197 Wn. App. 779, 391 P.3d 546 (2017), for the proposition that the denial order did not comply with RCW 26.50.060(7). But Maldonado is distinguishable. In that case, a father filed a petition for a domestic violence protection order on behalf of three children. Id. at 783. A commissioner entered temporary orders as to all three children. Id. at 784. After a hearing, the commissioner granted the petition as to one of the three children only and merely struck the names of the other two children from the order. Id. at 786. There was no denial order entered and thus no written finding as to the basis for denying the petition as to these two children. Id.
Although the commissioner confirmed the father had not alleged that the mother had committed any act of domestic violence against two of the three children, the father argued on revision that under In re Marriage of Stewart, 133 Wn. App. 545, 137 P.3d 25 (2006), children who witness domestic violence are psychologically harmed by the violence and are entitled to protection. Id. at 787. The superior court denied the motion for revision.
This court concluded that the lack of written findings justifying the exclusion of two of the three siblings from the order of protection hampered appellate review. Id. at 790. The petition alleged that all three of the children had been abused and all three feared future visits with their mother. Id. There was no explanation for why the commissioner or the court, on revision, focused exclusively on the allegations relating to one of the three children given the sworn testimony from the father in the petition. Id. Because the definition of domestic violence included not only direct physical harm but also the "infliction of fear of imminent physical harm," once the court found the mother's treatment of one child met the definition of domestic violence, it would have been reasonable to consider whether the other children were fearful of similar treatment. Id. at 791. We remanded the case for the court to reconsider the father's petition as to the two excluded children. Id. at 792.
Here, unlike in Maldonado, we have a written order denying Jeffrey's petition in its entirety. We also have a written finding by the court that it found insufficient evidence to establish that domestic violence had occurred. And also unlike Maldonado, we have a lengthy oral ruling from the court explaining how the court weighed the disputed evidence. A trial court's oral ruling may be used to complement and explain written findings. Spencer v. Badgley Mullins Turner, PLLC, 6 Wn. App. 2d 762, 801, 432 P.3d 821 (2018), review denied, 193 Wn.2d 1006 (2019). Our review here is not hampered by the lack of more detailed findings than set out in the denial order. We conclude the court's denial order is sufficient to comply with RCW 26.50.060(7).
Jeffrey alternatively relies on Maldonado to argue that the court "disregarded the danger" that Matthew presented to his other children, D.K. and A.K. But the court here found insufficient evidence of any domestic violence. And we have no record to indicate that either D.K. or A.K. were victims of domestic violence or observed Matthew sexually molesting J.K. Thus, Maldonado is inapplicable here.
Attorney Fees and Costs
Jeffrey requests attorney fees and costs under RCW 26.50.060(1)(g). Because he has not prevailed on appeal, his request is denied.
Affirmed.
/s/_________ WE CONCUR: /s/_________ /s/_________