BILL REQ. #: S-5385.1
| State of Washington | 62nd Legislature | 2012 1st Special Session |
Read first time 04/10/12. Referred to Committee on Human Services & Corrections.
AN ACT Relating to prohibiting a child custody award to a suspect in an active homicide investigation; amending RCW 13.34.132, 26.09.191, and 26.10.160; adding a new section to chapter 13.34 RCW; adding a new section to chapter 26.09 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 This act may be known and cited as the
Braden and Charlie Powell act of 2012.
Sec. 2 RCW 13.34.132 and 2011 c 309 s 28 are each amended to read
as follows:
A court may order that a petition seeking termination of the parent
and child relationship be filed if the following requirements are met:
(1) The court has removed the child from his or her home pursuant
to RCW 13.34.130;
(2) Termination is recommended by the department or the supervising
agency;
(3) Termination is in the best interests of the child; and
(4) Because of the existence of aggravated circumstances,
reasonable efforts to unify the family are not required.
Notwithstanding the existence of aggravated circumstances, reasonable
efforts may be required if the court or department determines it is in
the best interests of the child. In determining whether aggravated
circumstances exist by clear, cogent, and convincing evidence, the
court shall consider one or more of the following:
(a) Conviction of the parent of rape of the child in the first,
second, or third degree as defined in RCW 9A.44.073, 9A.44.076, and
9A.44.079;
(b) Conviction of the parent of criminal mistreatment of the child
in the first or second degree as defined in RCW 9A.42.020 and
9A.42.030;
(c) Conviction of the parent of one of the following assault
crimes, when the child is the victim: Assault in the first or second
degree as defined in RCW 9A.36.011 and 9A.36.021 or assault of a child
in the first or second degree as defined in RCW 9A.36.120 or 9A.36.130;
(d) Conviction of the parent of murder, manslaughter, or homicide
by abuse of the child's other parent, sibling, or another child;
(e) Conviction of the parent of attempting, soliciting, or
conspiring to commit a crime listed in (a), (b), (c), or (d) of this
subsection;
(f) A finding by a court that a parent is a sexually violent
predator as defined in RCW 71.09.020;
(g) Failure of the parent to complete available treatment ordered
under this chapter or the equivalent laws of another state, where such
failure has resulted in a prior termination of parental rights to
another child and the parent has failed to effect significant change in
the interim. In the case of a parent of an Indian child, as defined in
RCW 13.38.040, the court shall also consider tribal efforts to assist
the parent in completing treatment and make it possible for the child
to return home;
(h) An infant under three years of age has been abandoned;
(i) Conviction of the parent, when a child has been born of the
offense, of: (A) A sex offense under chapter 9A.44 RCW; or (B) incest
under RCW 9A.64.020;
(j) Circumstances in which the parent is a named suspect in an
active homicide investigation. The court shall review all available
evidence from law enforcement provided pursuant to section 3 of this
act in determining whether reunification may be detrimental to the
health, safety, or welfare of the child.
NEW SECTION. Sec. 3 A new section is added to chapter 13.34 RCW
to read as follows:
Upon the request of the court or department of social and health
services, any law enforcement agency conducting an active homicide
investigation for which a named suspect is involved in a child
dependency proceeding pursuant to this chapter must provide to the
court and the department, in writing, any and all details of the
investigation that may be relevant to the child dependency proceeding,
including evidence of the suspects failure to cooperate, attempts to
obstruct, or actual obstruction of the investigation.
Sec. 4 RCW 26.09.191 and 2011 c 89 s 6 are each amended to read
as follows:
(1) The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court
action if it is found that a parent has engaged in any of the following
conduct: (a) Willful abandonment that continues for an extended period
of time or substantial refusal to perform parenting functions; (b)
physical, sexual, or a pattern of emotional abuse of a child; ((or))
(c) a history of acts of domestic violence as defined in RCW
26.50.010(1) or an assault or sexual assault which causes grievous
bodily harm or the fear of such harm; or (d) the parent is a named
suspect in an active homicide investigation.
(2)(a) The parent's residential time with the child shall be
limited if it is found that the parent has engaged in any of the
following conduct: (i) Willful abandonment that continues for an
extended period of time or substantial refusal to perform parenting
functions; (ii) physical, sexual, or a pattern of emotional abuse of a
child; (iii) a history of acts of domestic violence as defined in RCW
26.50.010(1) or an assault or sexual assault which causes grievous
bodily harm or the fear of such harm; or (iv) the parent has been
convicted as an adult of a sex offense under:
(A) RCW 9A.44.076 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (d) of
this subsection;
(B) RCW 9A.44.079 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (d) of
this subsection;
(C) RCW 9A.44.086 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (d) of
this subsection;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(G) RCW 9A.64.020 (1) or (2) if, because of the difference in age
between the offender and the victim, no rebuttable presumption exists
under (d) of this subsection;
(H) Chapter 9.68A RCW;
(I) Any predecessor or antecedent statute for the offenses listed
in (a)(iv)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (a)(iv)(A) through (H) of
this subsection.
This subsection (2)(a) shall not apply when (c) or (d) of this
subsection applies.
(b) The parent's residential time with the child shall be limited
if it is found that the parent resides with a person who has engaged in
any of the following conduct: (i) Physical, sexual, or a pattern of
emotional abuse of a child; (ii) a history of acts of domestic violence
as defined in RCW 26.50.010(1) or an assault or sexual assault that
causes grievous bodily harm or the fear of such harm; or (iii) the
person has been convicted as an adult or as a juvenile has been
adjudicated of a sex offense under:
(A) RCW 9A.44.076 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (e) of
this subsection;
(B) RCW 9A.44.079 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (e) of
this subsection;
(C) RCW 9A.44.086 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (e) of
this subsection;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(G) RCW 9A.64.020 (1) or (2) if, because of the difference in age
between the offender and the victim, no rebuttable presumption exists
under (e) of this subsection;
(H) Chapter 9.68A RCW;
(I) Any predecessor or antecedent statute for the offenses listed
in (b)(iii)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (b)(iii)(A) through (H) of
this subsection.
This subsection (2)(b) shall not apply when (c) or (e) of this
subsection applies.
(c) If a parent has been found to be a sexual predator under
chapter 71.09 RCW or under an analogous statute of any other
jurisdiction, the court shall restrain the parent from contact with a
child that would otherwise be allowed under this chapter. If a parent
resides with an adult or a juvenile who has been found to be a sexual
predator under chapter 71.09 RCW or under an analogous statute of any
other jurisdiction, the court shall restrain the parent from contact
with the parent's child except contact that occurs outside that
person's presence.
(d) There is a rebuttable presumption that a parent who has been
convicted as an adult of a sex offense listed in (d)(i) through (ix) of
this subsection poses a present danger to a child. Unless the parent
rebuts this presumption, the court shall restrain the parent from
contact with a child that would otherwise be allowed under this
chapter:
(i) RCW 9A.64.020 (1) or (2), provided that the person convicted
was at least five years older than the other person;
(ii) RCW 9A.44.073;
(iii) RCW 9A.44.076, provided that the person convicted was at
least eight years older than the victim;
(iv) RCW 9A.44.079, provided that the person convicted was at least
eight years older than the victim;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086, provided that the person convicted was at least
eight years older than the victim;
(vii) RCW 9A.44.100;
(viii) Any predecessor or antecedent statute for the offenses
listed in (d)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (d)(i) through (vii) of
this subsection.
(e) There is a rebuttable presumption that a parent who resides
with a person who, as an adult, has been convicted, or as a juvenile
has been adjudicated, of the sex offenses listed in (e)(i) through (ix)
of this subsection places a child at risk of abuse or harm when that
parent exercises residential time in the presence of the convicted or
adjudicated person. Unless the parent rebuts the presumption, the
court shall restrain the parent from contact with the parent's child
except for contact that occurs outside of the convicted or adjudicated
person's presence:
(i) RCW 9A.64.020 (1) or (2), provided that the person convicted
was at least five years older than the other person;
(ii) RCW 9A.44.073;
(iii) RCW 9A.44.076, provided that the person convicted was at
least eight years older than the victim;
(iv) RCW 9A.44.079, provided that the person convicted was at least
eight years older than the victim;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086, provided that the person convicted was at least
eight years older than the victim;
(vii) RCW 9A.44.100;
(viii) Any predecessor or antecedent statute for the offenses
listed in (e)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (e)(i) through (vii) of
this subsection.
(f) The presumption established in (d) of this subsection may be
rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense committed by
the parent requesting residential time, (A) contact between the child
and the offending parent is appropriate and poses minimal risk to the
child, and (B) the offending parent has successfully engaged in
treatment for sex offenders or is engaged in and making progress in
such treatment, if any was ordered by a court, and the treatment
provider believes such contact is appropriate and poses minimal risk to
the child; or
(ii) If the child was the victim of the sex offense committed by
the parent requesting residential time, (A) contact between the child
and the offending parent is appropriate and poses minimal risk to the
child, (B) if the child is in or has been in therapy for victims of
sexual abuse, the child's counselor believes such contact between the
child and the offending parent is in the child's best interest, and (C)
the offending parent has successfully engaged in treatment for sex
offenders or is engaged in and making progress in such treatment, if
any was ordered by a court, and the treatment provider believes such
contact is appropriate and poses minimal risk to the child.
(g) The presumption established in (e) of this subsection may be
rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense committed by
the person who is residing with the parent requesting residential time,
(A) contact between the child and the parent residing with the
convicted or adjudicated person is appropriate and that parent is able
to protect the child in the presence of the convicted or adjudicated
person, and (B) the convicted or adjudicated person has successfully
engaged in treatment for sex offenders or is engaged in and making
progress in such treatment, if any was ordered by a court, and the
treatment provider believes such contact is appropriate and poses
minimal risk to the child; or
(ii) If the child was the victim of the sex offense committed by
the person who is residing with the parent requesting residential time,
(A) contact between the child and the parent in the presence of the
convicted or adjudicated person is appropriate and poses minimal risk
to the child, (B) if the child is in or has been in therapy for victims
of sexual abuse, the child's counselor believes such contact between
the child and the parent residing with the convicted or adjudicated
person in the presence of the convicted or adjudicated person is in the
child's best interest, and (C) the convicted or adjudicated person has
successfully engaged in treatment for sex offenders or is engaged in
and making progress in such treatment, if any was ordered by a court,
and the treatment provider believes contact between the parent and
child in the presence of the convicted or adjudicated person is
appropriate and poses minimal risk to the child.
(h) If the court finds that the parent has met the burden of
rebutting the presumption under (f) of this subsection, the court may
allow a parent who has been convicted as an adult of a sex offense
listed in (d)(i) through (ix) of this subsection to have residential
time with the child supervised by a neutral and independent adult and
pursuant to an adequate plan for supervision of such residential time.
The court shall not approve of a supervisor for contact between the
child and the parent unless the court finds, based on the evidence,
that the supervisor is willing and capable of protecting the child from
harm. The court shall revoke court approval of the supervisor upon
finding, based on the evidence, that the supervisor has failed to
protect the child or is no longer willing or capable of protecting the
child.
(i) If the court finds that the parent has met the burden of
rebutting the presumption under (g) of this subsection, the court may
allow a parent residing with a person who has been adjudicated as a
juvenile of a sex offense listed in (e)(i) through (ix) of this
subsection to have residential time with the child in the presence of
the person adjudicated as a juvenile, supervised by a neutral and
independent adult and pursuant to an adequate plan for supervision of
such residential time. The court shall not approve of a supervisor for
contact between the child and the parent unless the court finds, based
on the evidence, that the supervisor is willing and capable of
protecting the child from harm. The court shall revoke court approval
of the supervisor upon finding, based on the evidence, that the
supervisor has failed to protect the child or is no longer willing or
capable of protecting the child.
(j) If the court finds that the parent has met the burden of
rebutting the presumption under (g) of this subsection, the court may
allow a parent residing with a person who, as an adult, has been
convicted of a sex offense listed in (e)(i) through (ix) of this
subsection to have residential time with the child in the presence of
the convicted person supervised by a neutral and independent adult and
pursuant to an adequate plan for supervision of such residential time.
The court shall not approve of a supervisor for contact between the
child and the parent unless the court finds, based on the evidence,
that the supervisor is willing and capable of protecting the child from
harm. The court shall revoke court approval of the supervisor upon
finding, based on the evidence, that the supervisor has failed to
protect the child or is no longer willing or capable of protecting the
child.
(k) A court shall not order unsupervised contact between the
offending parent and a child of the offending parent who was sexually
abused by that parent. A court may order unsupervised contact between
the offending parent and a child who was not sexually abused by the
parent after the presumption under (d) of this subsection has been
rebutted and supervised residential time has occurred for at least two
years with no further arrests or convictions of sex offenses involving
children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW
and (i) the sex offense of the offending parent was not committed
against a child of the offending parent, and (ii) the court finds that
unsupervised contact between the child and the offending parent is
appropriate and poses minimal risk to the child, after consideration of
the testimony of a state-certified therapist, mental health counselor,
or social worker with expertise in treating child sexual abuse victims
who has supervised at least one period of residential time between the
parent and the child, and after consideration of evidence of the
offending parent's compliance with community supervision requirements,
if any. If the offending parent was not ordered by a court to
participate in treatment for sex offenders, then the parent shall
obtain a psychosexual evaluation conducted by a certified sex offender
treatment provider or a certified affiliate sex offender treatment
provider indicating that the offender has the lowest likelihood of risk
to reoffend before the court grants unsupervised contact between the
parent and a child.
(l) A court may order unsupervised contact between the parent and
a child which may occur in the presence of a juvenile adjudicated of a
sex offense listed in (e)(i) through (ix) of this subsection who
resides with the parent after the presumption under (e) of this
subsection has been rebutted and supervised residential time has
occurred for at least two years during which time the adjudicated
juvenile has had no further arrests, adjudications, or convictions of
sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020,
or chapter 9.68A RCW, and (i) the court finds that unsupervised contact
between the child and the parent that may occur in the presence of the
adjudicated juvenile is appropriate and poses minimal risk to the
child, after consideration of the testimony of a state-certified
therapist, mental health counselor, or social worker with expertise in
treatment of child sexual abuse victims who has supervised at least one
period of residential time between the parent and the child in the
presence of the adjudicated juvenile, and after consideration of
evidence of the adjudicated juvenile's compliance with community
supervision or parole requirements, if any. If the adjudicated
juvenile was not ordered by a court to participate in treatment for sex
offenders, then the adjudicated juvenile shall obtain a psychosexual
evaluation conducted by a certified sex offender treatment provider or
a certified affiliate sex offender treatment provider indicating that
the adjudicated juvenile has the lowest likelihood of risk to reoffend
before the court grants unsupervised contact between the parent and a
child which may occur in the presence of the adjudicated juvenile who
is residing with the parent.
(m)(i) The limitations imposed by the court under (a) or (b) of
this subsection shall be reasonably calculated to protect the child
from the physical, sexual, or emotional abuse or harm that could result
if the child has contact with the parent requesting residential time.
The limitations shall also be reasonably calculated to provide for the
safety of the parent who may be at risk of physical, sexual, or
emotional abuse or harm that could result if the parent has contact
with the parent requesting residential time. The limitations the court
may impose include, but are not limited to: Supervised contact between
the child and the parent or completion of relevant counseling or
treatment. If the court expressly finds based on the evidence that
limitations on the residential time with the child will not adequately
protect the child from the harm or abuse that could result if the child
has contact with the parent requesting residential time, the court
shall restrain the parent requesting residential time from all contact
with the child.
(ii) The court shall not enter an order under (a) of this
subsection allowing a parent to have contact with a child if the parent
has been found by clear and convincing evidence in a civil action or by
a preponderance of the evidence in a dependency action to have sexually
abused the child, except upon recommendation by an evaluator or
therapist for the child that the child is ready for contact with the
parent and will not be harmed by the contact. The court shall not
enter an order allowing a parent to have contact with the child in the
offender's presence if the parent resides with a person who has been
found by clear and convincing evidence in a civil action or by a
preponderance of the evidence in a dependency action to have sexually
abused a child, unless the court finds that the parent accepts that the
person engaged in the harmful conduct and the parent is willing to and
capable of protecting the child from harm from the person.
(iii) If the court limits residential time under (a) or (b) of this
subsection to require supervised contact between the child and the
parent, the court shall not approve of a supervisor for contact between
a child and a parent who has engaged in physical, sexual, or a pattern
of emotional abuse of the child unless the court finds based upon the
evidence that the supervisor accepts that the harmful conduct occurred
and is willing to and capable of protecting the child from harm. The
court shall revoke court approval of the supervisor upon finding, based
on the evidence, that the supervisor has failed to protect the child or
is no longer willing to or capable of protecting the child.
(n) If the court expressly finds based on the evidence that
contact between the parent and the child will not cause physical,
sexual, or emotional abuse or harm to the child and that the
probability that the parent's or other person's harmful or abusive
conduct will recur is so remote that it would not be in the child's
best interests to apply the limitations of (a), (b), and (m)(i) and
(iii) of this subsection, or if the court expressly finds that the
parent's conduct did not have an impact on the child, then the court
need not apply the limitations of (a), (b), and (m)(i) and (iii) of
this subsection. The weight given to the existence of a protection
order issued under chapter 26.50 RCW as to domestic violence is within
the discretion of the court. This subsection shall not apply when (c),
(d), (e), (f), (g), (h), (i), (j), (k), (l), and (m)(ii) of this
subsection apply.
(3) The parent's residential time with the child shall be limited
if it is found that the parent is a named suspect in an active homicide
investigation. Under no circumstances may the parent be designated as
the primary residential parent while the investigation is pending.
(4) A parent's involvement or conduct may have an adverse effect on
the child's best interests, and the court may preclude or limit any
provisions of the parenting plan, if any of the following factors
exist:
(a) A parent's neglect or substantial nonperformance of parenting
functions;
(b) A long-term emotional or physical impairment which interferes
with the parent's performance of parenting functions as defined in RCW
26.09.004;
(c) A long-term impairment resulting from drug, alcohol, or other
substance abuse that interferes with the performance of parenting
functions;
(d) The absence or substantial impairment of emotional ties between
the parent and the child;
(e) The abusive use of conflict by the parent which creates the
danger of serious damage to the child's psychological development;
(f) A parent has withheld from the other parent access to the child
for a protracted period without good cause; or
(g) Such other factors or conduct as the court expressly finds
adverse to the best interests of the child.
(((4))) (5) In cases involving allegations of limiting factors
under subsection (2)(a)(ii) and (iii) of this section, both parties
shall be screened to determine the appropriateness of a comprehensive
assessment regarding the impact of the limiting factor on the child and
the parties.
(((5))) (6) In entering a permanent parenting plan, the court shall
not draw any presumptions from the provisions of the temporary
parenting plan.
(((6))) (7) In determining whether any of the conduct described in
this section has occurred, the court shall apply the civil rules of
evidence, proof, and procedure.
(((7))) (8) For the purposes of this section:
(a) "A parent's child" means that parent's natural child, adopted
child, or stepchild; and
(b) "Social worker" means a person with a master's or further
advanced degree from a social work educational program accredited and
approved as provided in RCW 18.320.010.
NEW SECTION. Sec. 5 A new section is added to chapter 26.09 RCW
to read as follows:
Upon the request of a party or the court, any law enforcement
agency conducting an active homicide investigation for which a named
suspect is involved in a child custody proceeding pursuant to this
chapter or chapter 26.10 RCW must provide to the court, in writing, any
and all details of the investigation that may be relevant to the child
custody proceeding, including evidence of the suspects failure to
cooperate, attempts to obstruct, or actual obstruction of the
investigation.
Sec. 6 RCW 26.10.160 and 2011 c 89 s 7 are each amended to read
as follows:
(1) A parent not granted custody of the child is entitled to
reasonable visitation rights except as provided in subsection (2) of
this section.
(2)(a) Visitation with the child shall be limited if it is found
that the parent seeking visitation has engaged in any of the following
conduct: (i) Willful abandonment that continues for an extended period
of time or substantial refusal to perform parenting functions; (ii)
physical, sexual, or a pattern of emotional abuse of a child; (iii) a
history of acts of domestic violence as defined in RCW 26.50.010(1) or
an assault or sexual assault which causes grievous bodily harm or the
fear of such harm; ((or)) (iv) the parent is a named suspect in an
active homicide investigation; or (v) the parent has been convicted as
an adult of a sex offense under:
(A) RCW 9A.44.076 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (d) of
this subsection;
(B) RCW 9A.44.079 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (d) of
this subsection;
(C) RCW 9A.44.086 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (d) of
this subsection;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(G) RCW 9A.64.020 (1) or (2) if, because of the difference in age
between the offender and the victim, no rebuttable presumption exists
under (d) of this subsection;
(H) Chapter 9.68A RCW;
(I) Any predecessor or antecedent statute for the offenses listed
in (a)(((iv))) (v)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (a)(((iv))) (v)(A) through
(H) of this subsection.
This subsection (2)(a) shall not apply when (c) or (d) of this
subsection applies.
(b) The parent's visitation with the child shall be limited if it
is found that the parent resides with a person who has engaged in any
of the following conduct: (i) Physical, sexual, or a pattern of
emotional abuse of a child; (ii) a history of acts of domestic violence
as defined in RCW 26.50.010(1) or an assault or sexual assault that
causes grievous bodily harm or the fear of such harm; or (iii) the
person has been convicted as an adult or as a juvenile has been
adjudicated of a sex offense under:
(A) RCW 9A.44.076 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (e) of
this subsection;
(B) RCW 9A.44.079 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (e) of
this subsection;
(C) RCW 9A.44.086 if, because of the difference in age between the
offender and the victim, no rebuttable presumption exists under (e) of
this subsection;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(G) RCW 9A.64.020 (1) or (2) if, because of the difference in age
between the offender and the victim, no rebuttable presumption exists
under (e) of this subsection;
(H) Chapter 9.68A RCW;
(I) Any predecessor or antecedent statute for the offenses listed
in (b)(iii)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (b)(iii)(A) through (H) of
this subsection.
This subsection (2)(b) shall not apply when (c) or (e) of this
subsection applies.
(c) If a parent has been found to be a sexual predator under
chapter 71.09 RCW or under an analogous statute of any other
jurisdiction, the court shall restrain the parent from contact with a
child that would otherwise be allowed under this chapter. If a parent
resides with an adult or a juvenile who has been found to be a sexual
predator under chapter 71.09 RCW or under an analogous statute of any
other jurisdiction, the court shall restrain the parent from contact
with the parent's child except contact that occurs outside that
person's presence.
(d) There is a rebuttable presumption that a parent who has been
convicted as an adult of a sex offense listed in (d)(i) through (ix) of
this subsection poses a present danger to a child. Unless the parent
rebuts this presumption, the court shall restrain the parent from
contact with a child that would otherwise be allowed under this
chapter:
(i) RCW 9A.64.020 (1) or (2), provided that the person convicted
was at least five years older than the other person;
(ii) RCW 9A.44.073;
(iii) RCW 9A.44.076, provided that the person convicted was at
least eight years older than the victim;
(iv) RCW 9A.44.079, provided that the person convicted was at least
eight years older than the victim;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086, provided that the person convicted was at least
eight years older than the victim;
(vii) RCW 9A.44.100;
(viii) Any predecessor or antecedent statute for the offenses
listed in (d)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (d)(i) through (vii) of
this subsection.
(e) There is a rebuttable presumption that a parent who resides
with a person who, as an adult, has been convicted, or as a juvenile
has been adjudicated, of the sex offenses listed in (e)(i) through (ix)
of this subsection places a child at risk of abuse or harm when that
parent exercises visitation in the presence of the convicted or
adjudicated person. Unless the parent rebuts the presumption, the
court shall restrain the parent from contact with the parent's child
except for contact that occurs outside of the convicted or adjudicated
person's presence:
(i) RCW 9A.64.020 (1) or (2), provided that the person convicted
was at least five years older than the other person;
(ii) RCW 9A.44.073;
(iii) RCW 9A.44.076, provided that the person convicted was at
least eight years older than the victim;
(iv) RCW 9A.44.079, provided that the person convicted was at least
eight years older than the victim;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086, provided that the person convicted was at least
eight years older than the victim;
(vii) RCW 9A.44.100;
(viii) Any predecessor or antecedent statute for the offenses
listed in (e)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes an
offense analogous to the offenses listed in (e)(i) through (vii) of
this subsection.
(f) The presumption established in (d) of this subsection may be
rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense committed by
the parent requesting visitation, (A) contact between the child and the
offending parent is appropriate and poses minimal risk to the child,
and (B) the offending parent has successfully engaged in treatment for
sex offenders or is engaged in and making progress in such treatment,
if any was ordered by a court, and the treatment provider believes such
contact is appropriate and poses minimal risk to the child; or
(ii) If the child was the victim of the sex offense committed by
the parent requesting visitation, (A) contact between the child and the
offending parent is appropriate and poses minimal risk to the child,
(B) if the child is in or has been in therapy for victims of sexual
abuse, the child's counselor believes such contact between the child
and the offending parent is in the child's best interest, and (C) the
offending parent has successfully engaged in treatment for sex
offenders or is engaged in and making progress in such treatment, if
any was ordered by a court, and the treatment provider believes such
contact is appropriate and poses minimal risk to the child.
(g) The presumption established in (e) of this subsection may be
rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense committed by
the person who is residing with the parent requesting visitation, (A)
contact between the child and the parent residing with the convicted or
adjudicated person is appropriate and that parent is able to protect
the child in the presence of the convicted or adjudicated person, and
(B) the convicted or adjudicated person has successfully engaged in
treatment for sex offenders or is engaged in and making progress in
such treatment, if any was ordered by a court, and the treatment
provider believes such contact is appropriate and poses minimal risk to
the child; or
(ii) If the child was the victim of the sex offense committed by
the person who is residing with the parent requesting visitation, (A)
contact between the child and the parent in the presence of the
convicted or adjudicated person is appropriate and poses minimal risk
to the child, (B) if the child is in or has been in therapy for victims
of sexual abuse, the child's counselor believes such contact between
the child and the parent residing with the convicted or adjudicated
person in the presence of the convicted or adjudicated person is in the
child's best interest, and (C) the convicted or adjudicated person has
successfully engaged in treatment for sex offenders or is engaged in
and making progress in such treatment, if any was ordered by a court,
and the treatment provider believes contact between the parent and
child in the presence of the convicted or adjudicated person is
appropriate and poses minimal risk to the child.
(h) If the court finds that the parent has met the burden of
rebutting the presumption under (f) of this subsection, the court may
allow a parent who has been convicted as an adult of a sex offense
listed in (d)(i) through (ix) of this subsection to have visitation
with the child supervised by a neutral and independent adult and
pursuant to an adequate plan for supervision of such visitation. The
court shall not approve of a supervisor for contact between the child
and the parent unless the court finds, based on the evidence, that the
supervisor is willing and capable of protecting the child from harm.
The court shall revoke court approval of the supervisor upon finding,
based on the evidence, that the supervisor has failed to protect the
child or is no longer willing or capable of protecting the child.
(i) If the court finds that the parent has met the burden of
rebutting the presumption under (g) of this subsection, the court may
allow a parent residing with a person who has been adjudicated as a
juvenile of a sex offense listed in (e)(i) through (ix) of this
subsection to have visitation with the child in the presence of the
person adjudicated as a juvenile, supervised by a neutral and
independent adult and pursuant to an adequate plan for supervision of
such visitation. The court shall not approve of a supervisor for
contact between the child and the parent unless the court finds, based
on the evidence, that the supervisor is willing and capable of
protecting the child from harm. The court shall revoke court approval
of the supervisor upon finding, based on the evidence, that the
supervisor has failed to protect the child or is no longer willing or
capable of protecting the child.
(j) If the court finds that the parent has met the burden of
rebutting the presumption under (g) of this subsection, the court may
allow a parent residing with a person who, as an adult, has been
convicted of a sex offense listed in (e)(i) through (ix) of this
subsection to have visitation with the child in the presence of the
convicted person supervised by a neutral and independent adult and
pursuant to an adequate plan for supervision of such visitation. The
court shall not approve of a supervisor for contact between the child
and the parent unless the court finds, based on the evidence, that the
supervisor is willing and capable of protecting the child from harm.
The court shall revoke court approval of the supervisor upon finding,
based on the evidence, that the supervisor has failed to protect the
child or is no longer willing or capable of protecting the child.
(k) A court shall not order unsupervised contact between the
offending parent and a child of the offending parent who was sexually
abused by that parent. A court may order unsupervised contact between
the offending parent and a child who was not sexually abused by the
parent after the presumption under (d) of this subsection has been
rebutted and supervised visitation has occurred for at least two years
with no further arrests or convictions of sex offenses involving
children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW
and (i) the sex offense of the offending parent was not committed
against a child of the offending parent, and (ii) the court finds that
unsupervised contact between the child and the offending parent is
appropriate and poses minimal risk to the child, after consideration of
the testimony of a state-certified therapist, mental health counselor,
or social worker with expertise in treating child sexual abuse victims
who has supervised at least one period of visitation between the parent
and the child, and after consideration of evidence of the offending
parent's compliance with community supervision requirements, if any.
If the offending parent was not ordered by a court to participate in
treatment for sex offenders, then the parent shall obtain a
psychosexual evaluation conducted by a certified sex offender treatment
provider or a certified affiliate sex offender treatment provider
indicating that the offender has the lowest likelihood of risk to
reoffend before the court grants unsupervised contact between the
parent and a child.
(l) A court may order unsupervised contact between the parent and
a child which may occur in the presence of a juvenile adjudicated of a
sex offense listed in (e)(i) through (ix) of this subsection who
resides with the parent after the presumption under (e) of this
subsection has been rebutted and supervised visitation has occurred for
at least two years during which time the adjudicated juvenile has had
no further arrests, adjudications, or convictions of sex offenses
involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter
9.68A RCW, and (i) the court finds that unsupervised contact between
the child and the parent that may occur in the presence of the
adjudicated juvenile is appropriate and poses minimal risk to the
child, after consideration of the testimony of a state-certified
therapist, mental health counselor, or social worker with expertise in
treatment of child sexual abuse victims who has supervised at least one
period of visitation between the parent and the child in the presence
of the adjudicated juvenile, and after consideration of evidence of the
adjudicated juvenile's compliance with community supervision or parole
requirements, if any. If the adjudicated juvenile was not ordered by
a court to participate in treatment for sex offenders, then the
adjudicated juvenile shall obtain a psychosexual evaluation conducted
by a certified sex offender treatment provider or a certified affiliate
sex offender treatment provider indicating that the adjudicated
juvenile has the lowest likelihood of risk to reoffend before the court
grants unsupervised contact between the parent and a child which may
occur in the presence of the adjudicated juvenile who is residing with
the parent.
(m)(i) The limitations imposed by the court under (a) or (b) of
this subsection shall be reasonably calculated to protect the child
from the physical, sexual, or emotional abuse or harm that could result
if the child has contact with the parent requesting visitation. If the
court expressly finds based on the evidence that limitations on
visitation with the child will not adequately protect the child from
the harm or abuse that could result if the child has contact with the
parent requesting visitation, the court shall restrain the person
seeking visitation from all contact with the child.
(ii) The court shall not enter an order under (a) of this
subsection allowing a parent to have contact with a child if the parent
has been found by clear and convincing evidence in a civil action or by
a preponderance of the evidence in a dependency action to have sexually
abused the child, except upon recommendation by an evaluator or
therapist for the child that the child is ready for contact with the
parent and will not be harmed by the contact. The court shall not
enter an order allowing a parent to have contact with the child in the
offender's presence if the parent resides with a person who has been
found by clear and convincing evidence in a civil action or by a
preponderance of the evidence in a dependency action to have sexually
abused a child, unless the court finds that the parent accepts that the
person engaged in the harmful conduct and the parent is willing to and
capable of protecting the child from harm from the person.
(iii) If the court limits visitation under (a) or (b) of this
subsection to require supervised contact between the child and the
parent, the court shall not approve of a supervisor for contact between
a child and a parent who has engaged in physical, sexual, or a pattern
of emotional abuse of the child unless the court finds based upon the
evidence that the supervisor accepts that the harmful conduct occurred
and is willing to and capable of protecting the child from harm. The
court shall revoke court approval of the supervisor upon finding, based
on the evidence, that the supervisor has failed to protect the child or
is no longer willing to or capable of protecting the child.
(n) If the court expressly finds based on the evidence that
contact between the parent and the child will not cause physical,
sexual, or emotional abuse or harm to the child and that the
probability that the parent's or other person's harmful or abusive
conduct will recur is so remote that it would not be in the child's
best interests to apply the limitations of (a), (b), and (m)(i) and
(iii) of this subsection, or if the court expressly finds that the
parent's conduct did not have an impact on the child, then the court
need not apply the limitations of (a), (b), and (m)(i) and (iii) of
this subsection. The weight given to the existence of a protection
order issued under chapter 26.50 RCW as to domestic violence is within
the discretion of the court. This subsection shall not apply when (c),
(d), (e), (f), (g), (h), (i), (j), (k), (l), and (m)(ii) of this
subsection apply.
(3) Any person may petition the court for visitation rights at any
time including, but not limited to, custody proceedings. The court may
order visitation rights for any person when visitation may serve the
best interest of the child whether or not there has been any change of
circumstances.
(4) The court may modify an order granting or denying visitation
rights whenever modification would serve the best interests of the
child. Modification of a parent's visitation rights shall be subject
to the requirements of subsection (2) of this section.
(5) For the purposes of this section:
(a) "A parent's child" means that parent's natural child, adopted
child, or stepchild; and
(b) "Social worker" means a person with a master's or further
advanced degree from a social work educational program accredited and
approved as provided in RCW 18.320.010.