Father Wins Challenge to Conviction Based on His Fundamental Right to Parent

State of Washington v. Torres (2017)

by David S. Marshall

Eastern Washington resident Mario Torres has won a challenge to his conviction for witness tampering

The State of Washington had alleged that Mr. Torres had coerced his young son to lie to law enforcement. The trial court imposed a five-year no-contact order between Mr. Torres and his son, but the Washington State Court of Appeals ruled that the no-contact order was handed down without adequate consideration of Mr. Torres’s fundamental right to parent his son. The appeals court therefore sent the conviction back to the trial court for reconsideration.

The Death of Mr. Torres’s Two-Year-Old Son and the Subsequent Investigation

Mr. Torres had two young sons, one eleven years old and one two. The two-year-old normally lived with his mother but was in the care of Mr. Torres on December 22, 2014. The next day, the two-year-old’s mother and grandmother sought medical attention for the toddler after finding him unresponsive. Tragically, the little boy died a few days later, and a preliminary investigation suggested his death may have been a homicide.

As part of their investigation of the case, law enforcement conducted a forensic interview of Mr. Torres’s eleven-year-old son, who was also in his father’s care on December 22. The eleven-year-old son first told investigators that his little brother was responsive and eating chicken nuggets while the two boys were with their father.

Later, however, the older boy said he heard a loud bang while his father was caring for his little brother, and that afterward the little brother started crying loudly. The boy said his father told him that he accidentally stepped on the two-year-old’s leg, causing the toddler to fall and strike the bedpost. The eleven-year-old said he never saw his little brother get up again after this incident. The eleven-year-old explained this change in his story to the interviewer by saying both his parents had approached him at his grandmother’s home earlier that day and had told him to tell the story about his little brother eating chicken nuggets, and to leave out that he had bumped his head. Torres allegedly told the eleven-year-old to “make up lies.”

When law enforcement interviewed Mr. Torres, he denied injuring his two-year-old son. Instead, he told officials the toddler had fallen and struck his head on a bedpost. Mr. Torres also said he had had a conversation with his older son about what his son would say to authorities. Mr. Torres insisted he had instructed his son to tell the truth: that his father had not caused his little brother’s injuries.

Mr. Torres was later convicted of witness tampering. His sentence included a five-year no-contact order between himself and his eleven-year-old son, despite his active role in the boy’s life.

How Mr. Torres’s Sentence May Have Violated His Right to Parent

Under Washington law, sentencing conditions which interfere with fundamental rights, such as the right to a parent-child relationship, must be “sensitively imposed” so they are “reasonably necessary to accomplish the essential needs of the state and public order.” The Court of Appeals in Mr. Torres’s case found that the trial court had failed to acknowledge Torres’ fundamental right to parent his child or to adequately explain why the court granted a no-contact order ten times longer than the time period requested by the prosecution. Washington law provides that a parent-child no contact order should not last longer than one year unless specifically renewed.

The State has an interest in protecting children, but that interest must be sensitive to the changing needs and interests of the parent and child. In assessing the impact of a no-contact order, it is the trial court’s duty to balance the competing interests of the State and the parent, a fact-intensive exercise. Because the trial court’s decision to impose a no-contact order was not guided by the analysis required, the court sent Mr. Torres’s case back to the trial court for reconsideration of the no-contact order.

On remand, the appeals court instructed the trial court to address:

  • whether a no-contact order was reasonably necessary to protect Mr. Torres’s eleven-year-old boy from harm
  • how to narrowly tailor the order, if it was necessary to protect the boy, both in scope and duration
  • how a less restrictive alternative to the order, such as supervised visitation, might be more appropriate than eliminating all personal contact between Mr. Torres and his child
  • whether the scope of the no-contact order should change over time
  • whether the ultimate length of the no-contact order was appropriate

The appeals court also said that a sentencing proceeding was not the ideal forum for addressing parenting issues. Juvenile and family courts are better equipped to resolve custody questions, including whether restrictions should be placed on parent-child contact.