Full Opinion

FILED OCTOBER 27, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE ROCHELLE LEMIEUX-MILLER, ) ) No. 41738-7-III Respondent, ) ) v. ) ) GRAHAM MILLER, ) UNPUBLISHED OPINION ) Appellant. ) COONEY, A.C.J. — Graham Miller appeals a domestic violence protection order restraining him from contacting his four children. Mr. Miller’s estranged wife, Rochelle LeMieux-Miller, petitioned for the order after Mr. Miller placed their 13-year-old son, A.M., 1 in a chokehold that restricted his breathing. Mr. Miller argues the court abused its discretion by failing to apply the parental immunity doctrine and by failing to consider all the circumstances surrounding the physical encounter, including whether he was acting defensively in response to his son’s aggression. He also asks this court to modify the protection order to resolve a claimed conflict between two paragraphs. We reject Mr. Miller’s arguments, decline his request to modify the order, and affirm. 1 The two oldest children, A.M. (age 13) and P.M. (age 11), have the same initials as their younger siblings, A.M. (age 5), and P.M. (age 3). The chokehold incident primarily involved the eldest A.M. and the eldest P.M. For clarity, the two younger children are referred to as “the five-year old” and “the three-year-old.” No. 41738-7-III LeMieux v. Miller BACKGROUND Mr. Miller and Ms. LeMieux-Miller were married and have four children together. 2 On April 15, 2025, Ms. LeMieux-Miller obtained a domestic violence protection order that restrained Mr. Miller from contacting her, among other restrictions. On September 17, Ms. LeMieux-Miller petitioned for a domestic violence protection order restraining Mr. Miller from contacting their children. In the petition, Ms. LeMieux- Miller describes an incident during a three-day visit in September 2025, in which she alleges Mr. Miller physically abused A.M. Ms. LeMieux-Miller described the incident as follows: There was an argument about which bags needed to be packed between the oldest son, [A.M.], and his father, Graham. [A.M.] was inside trying to pack the bags for his younger siblings when his father told him to leave the bags. [A.M.] continued to pack the clothes and Graham came up behind [A.M.] and squeezed his chest from behind. [A.M.]’s breathing was constricted and he tried to get away. As he tried to get out of Graham’s hold, Graham loosened his grip and started swinging, scratching and grabbing at [A.M.]. [A.M.] tried to hit Graham and screamed but Graham managed to get [A.M.] into a chokehold. [A.M.] cannot recall exactly how long he was in the chokehold but knows it was significant and that he could not breathe. [A.M.]’s sister [P.M.] came running in after hearing the screaming and saw Graham release [A.M.] into the couch. [A.M.] states he was pushed into the couch and left gripping his throat from the pain and gulping for air. [P.M.] also saw this occur. Graham yelled at [A.M.] and left the room. [A.M.] went to pick up the bag that had been strewn about and Graham came back to continue the verbal fight and threatened to call the cops on [A.M.]. [P.M.] was very scared and texted me, their mother, from the car on the drive to school. [P.M.] notified me that there were 2 It is unclear from the record whether a decree dissolving the marriage has been entered. 2 No. 41738-7-III LeMieux v. Miller marks on [A.M.]’s neck that she could see. I drove down to the school and a teacher reported the incident to CPS and I filed a police report. Clerk’s Papers (CP) at 18. Ms. LeMieux-Miller also alleged a “pattern of abuse [that] started long before visitation was enacted” and asserted that A.M. was subjected to Mr. Miller’s violence and threats “almost every single weekend that he has been with [Mr. Miller].” CP at 18. She described incidents that occurred on May 10, June 23, and July 3, 2025. She further recounted the other children’s experiences as witnesses to the physical violence Mr. Miller allegedly inflicted on A.M. According to Ms. LeMieux-Miller, P.M. witnessed A.M. being “beaten and strangled and she worries for the safety of herself and her siblings when they are with [Mr. Miller].” CP at 19. Ms. LeMieux-Miller stated that P.M. experiences anxiety related to the time spent with Mr. Miller and receives medical treatment. She also alleged that their five-year-old son has been “neglected at times during visitation” and “has expressed moderate to severe pain from ‘rough housing’ with [Mr. Miller]” upon returning home from visits. CP at 19. Ms. LeMieux-Miller attached an e-mail Mr. Miller sent to A.M. regarding the September 15 incident to her petition. In the e-mail, Mr. Miller wrote, “This morning was rough. I’m not going to pretend otherwise,” and “I am not happy with how either of us handled this morning and I know it did not help us get any closer.” CP at 20. She also attached photographs that showed scratches on the right side and back of A.M.’s neck. 3 No. 41738-7-III LeMieux v. Miller On September 17, the court entered an ex parte temporary domestic violence protection order that restrained Mr. Miller from contacting the children. Ms. LeMieux- Miller and her father, Peter LeMieux, filed declarations in support of the petition. Ms. LeMieux-Miller stated, in part, “Graham has strangled and choked [A.M.] at least 8 times since 2021. Graham lifting [A.M.] by the neck was a common occurrence when I was married to Graham—he even lifted [A.M.] by the throat to throw him out the door at one point.” CP at 53. She explained that she did not file police reports for “every single incident” because “there is no way that [she] could have safely filed a police report against [Mr. Miller] and continued to live in the same house without retaliation.” CP at 53. Mr. LeMieux’s declaration stated that he was scheduled to pick up the children on September 15 “at the usual pick up spot” following Mr. Miller’s visitation. CP at 64. He explained that he received a text message from P.M. reporting that Mr. Miller had “strangled [A.M.].” CP at 64. Mr. Miller then did not arrive “at the usual pick up spot” to drop off the children. CP at 64. Mr. LeMieux drove to the children’s school, attempted to comfort A.M. and P.M, and photographed the scratches on A.M.’s neck and legs. Mr. Miller also filed a declaration, stating, “The court should review the original Petition filed in support of the first request for Protection order, because many of the same arguments [Ms. LeMieux-Miller] is making now, the court heard in April 2025.” 4 No. 41738-7-III LeMieux v. Miller CP at 72-73. He asserted, “The only new information relating to the current request is [Ms. LeMieux-Miller’s] allegation of an incident that occurred between [A.M.] and me on September 15, 2025.” CP at 73. Mr. Miller addressed the September 15 incident as follows: After it had become clear that [A.M.] was not going to heed my direction, I bear-hugged him from behind and carried him outside of my bedroom. This is when he started punching and kicking. [A.M.] takes Taekwondo lessons, is about my size, and has a history of punching and hitting other people. As he was doing this, he slipped out of my grip and had gotten behind me so I put him in a single-arm headlock, being careful not to cut off his air supply and keeping his center of mass low to the ground in order to keep him from hurting me or himself. When I put [A.M.] into a defensive headlock, my body was in front of his and I used only my right arm for the restraint. I did not swing at him once, as was claimed, and I certainly did not scratch him. During the entire event, [A.M.] was yelling at me, “Let me go!” and “I hate you!” Had I been restricting his airflow, he would not have been able to yell. Rochelle even points out in her testimony that [A.M.] was yelling at me. I was genuinely fearful because [A.M.] was trying to fight me. .... Summarized, I am sure upon reflection that I could have handled things differently. However, I did not want the other children to be late for school. CP at 79-80. On October 22, the superior court held a hearing on a continuation of the protection order. Ms. LeMieux-Miller’s counsel argued that Mr. Miller’s conduct on September 15, and the period leading up to that date, constituted “coercive control” under 5 No. 41738-7-III LeMieux v. Miller RCW 7.105.010(4)(a). Tr. of Proc. (TP) at 29. Counsel contended Mr. Miller’s behavior was “used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” TP at 29. Counsel cited Ms. LeMieux-Miller’s declaration, and asserted Mr. Miller “has been very abusive” to A.M., including calling him a bully and treating him harshly. TP at 29. Counsel then recounted the September 15 incident and advised the court that the police had investigated the matter, and it was “still under investigation.” TP at 32. Counsel described A.M. as a “90-pound kid” and Mr. Miller as “an adult that is buffed.” TP at 33. Counsel also reiterated allegations of neglect and abuse described in Ms. LeMieux-Miller’s declaration and argued that any visitation should be supervised. Mr. Miller’s counsel reminded the court that it had heard similar allegations at an earlier hearing on the protection order involving only Ms. LeMieux-Miller and that the court did not make a domestic violence finding at that time. Counsel argued that the September 15 incident was the only material difference between the two petitions. Counsel further argued that the evidence was insufficient to support a finding that abuse occurred on September 15. Counsel pointed to Mr. Miller’s declaration, in which he acknowledged that he “put his arms around [A.M.] and [tried to] move him outside, because the other kids were in the car ready to go to school.” TP at 43-44. The court asked Mr. Miller’s attorney why Mr. Miller had expressed regret about the incident if, as counsel maintained, Mr. Miller merely put his arms around A.M. to get 6 No. 41738-7-III LeMieux v. Miller him in the car and referenced Mr. Miller’s e-mail from September 15 in which he stated he was “‘not happy with how either of us handled this morning.’” TP at 45 (quoting CP at 20). Counsel responded that hearing A.M. yell, “I hate you, let me go, I don’t want anything to do with you” would distress any parent, but emphasized that Mr. Miller “certainly doesn’t admit or agree that he choked his son. That’s just not what happened.” TP at 45-46. The court also addressed Mr. Miller’s argument that it had previously declined to enter a protection order covering the children. While the court agreed that “there wasn’t a basis for assault” in the earlier proceeding, the court responded by stating, “[H]ere, I think, when I’m looking at page 21 of the petition, I believe I’m looking at scratches on [A.M.]’s neck.” TP at 47. The court reasoned that, when those issues are considered alongside the corporal punishment statute, “anything that causes more than a temporary mark is unreasonable,” “interfering with a child’s breathing” is unreasonable, and “[i]f it’s unreasonable, it’s corporal punishment. If it’s corporal punishment, presumably it’s within the ambit of the protection order.” TP at 48-49. The guardian ad litem, Amanda Taylor, told the court that she had spoken with the children’s therapist who “is not recommending reconciliation counseling between the kids and [Mr. Miller]” “due to the amount of trauma that the kids have experienced while with [Mr. Miller].” TP at 51. Ms. Taylor reported that the therapist believed “that the most harmful thing for the children right now is the visits with [Mr. Miller].” TP at 51. 7 No. 41738-7-III LeMieux v. Miller Ms. Taylor also stated that the children “consistently tell [her] that they don’t want to be with [Mr. Miller].” TP at 51. Finally, Ms. Taylor confirmed she had been in contact with the Child Protective Services (CPS) investigator and the case remains open. She stated the investigator told her recently that the Pasco Police Department had declined to file charges against Mr. Miller. The court acknowledged Ms. Taylor’s statements and directed her to file a declaration memorializing the information she provided at the hearing, explaining, “If you assert on the record that you’re going to do that, then I will consider that evidence as part of my ruling.” TP at 64. Ms. Taylor filed a declaration the same day. In it, she reported that A.M. told her that on September 15, “‘[Mr. Miller] picked me up and squeezed my chest really hard. He put me in a head lock really tight and I couldn’t breathe.’” CP at 93. Ms. Taylor also obtained the police report from the incident and attached it to her declaration. The court briefly recessed to “listen to [its] ruling on the [first] civil protection order on April 15th,” then delivered its oral ruling. TP at 55. The court agreed with Mr. Miller’s characterization of the earlier ruling—that it did not include a finding of domestic violence. The court, however, noted that the current petition was “much more specific,” focusing on the events of September 15. TP at 57. Based on Ms. LeMieux- Miller petition and Mr. Miller’s declaration, the court found that “[t]here’s no dispute that there was a physical altercation.” TP at 57. The court then read Ms. LeMieux-Miller’s 8 No. 41738-7-III LeMieux v. Miller and Mr. Miller’s accounts of the September 15 incident into the record. The court acknowledged Mr. Miller’s argument regarding the “history of allegations of violence and [Ms. LeMieux-Miller’s] intent to alienate [Mr. Miller].” TP at 63. The court also noted that the CPS investigation was “active” and “ongoing” but stated that it “doesn’t tilt [it] one way or the other.” TP at 65. The court concluded: This is a very close call, folks. It is possible that things are simultaneously true, and I don’t know. It is true, it is possible that the 13-year-old behaved in such a way that any parent in that position would have initiated physical contact to deescalate. That may be true, based on [A.M.’s] conduct. But even giving that benefit of the doubt to [Mr. Miller], I don’t find it’s more likely true than not that what he did was reasonable and consistent with the corporal punishment statute. .... But what I believe is that it’s more likely true than not that [Mr. Miller] lost control, and that when he lost control, he engaged in a physical contact with [A.M.], who retaliated, and during that retaliation, [Mr. Miller] scratched [A.M.’s] neck, put him in a headlock, which may have interfered with his breathing, more likely true than not did interfere with his breathing, and [Mr. Miller] pushed him away onto the couch. All three of those separately and certainly collectively amount to a violation of use of force on children, and is within the ambit of domestic violence, and so I do find that the incident on September 15th amounts to domestic violence. That’s my legal and factual basis for my ruling. TP at 67-68. The court emphasized the fact that A.M. was a 13-year-old boy, who weighed 90 pounds. The court ultimately reissued the September 17 temporary domestic violence protection order to protect the safety and welfare of the children. The court incorporated 9 No. 41738-7-III LeMieux v. Miller its oral ruling as the basis for reissuing the order and continued the matter for two weeks for presentment of the protection order. The court also entered an “Order to Surrender and Prohibit Weapons.” CP at 87 (boldface omitted). In doing so, the court explained, “[H]ere we have physical abuse from the father against [A.M.] and, as a result, the Court is obligated under the new law to issue the order surrendering weapons, and so the Court will include that relief in the protection order.” TP at 69. On November 12, 2025, the court held a hearing on the domestic violence protection order and a temporary parenting plan. Relying on its October 22 ruling, the court entered a domestic violence protection order protecting all four children. In the order’s “7. Other Findings” section, the court found that Mr. Miller “[does not] [represent] a credible threat to the physical safety of the protected person/s.” CP at 112 (boldface omitted). The court nevertheless checked the box in section 8.O., “Surrender Weapons,” stating: The Court . . . must issue the Order to Surrender and Prohibit Weapons because. . . the court ordered the No Harm restraints above (section 8.A.) and the court finds that the restrained person had actual notice and an opportunity to participate . . . [and] the restrained person represents a credible threat to the physical safety of a protected person, OR this order explicitly prohibits the use, attempted use, or threatened use of physical force against any protected person. CP at 116 (boldface omitted). Under section 8.A. of the protection order, the court ordered Mr. Miller, among other restraint provisions, to “not cause any physical harm, 10 No. 41738-7-III LeMieux v. Miller bodily injury, assault, nonconsensual sexual conduct or nonconsensual sexual penetration, and do not harass, threaten, or stalk [his four children].” CP at 113. Mr. Miller moved to revise the domestic violence protection order entered by the commissioner. A superior court judge denied the motion as untimely. Mr. Miller timely appeals. ANALYSIS We review a trial court’s decision to grant a domestic violence protection order for an abuse of discretion. Maldonado v. Maldonado, 197 Wn. App. 779, 789, 391 P.3d 546 (2017). There is an abuse of discretion where the court’s decision is based on untenable grounds or untenable reasons. Rodriguez v. Zavala, 188 Wn.2d 586, 598, 398 P.3d 1071 (2017). “A decision is based ‘on untenable grounds’ or made ‘for untenable reasons’ if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)). We review the trial court’s factual findings for substantial evidence. In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 (2007). Substantial evidence exists to support a finding of fact if the record contains sufficient evidence to persuade a fair-minded, rational person of the truth of the determination. Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986). We do not reweigh evidence or determine credibility. Rockwell, 141 Wn. App. at 242. We defer to the trial court’s 11 No. 41738-7-III LeMieux v. Miller decisions on the weight of the evidence, credibility of the witnesses, and conflicting evidence. Snyder v. Haynes, 152 Wn. App. 774, 779, 217 P.3d 787 (2009). A finding may still be supported by substantial evidence even where the evidence is conflicting. Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010). Unchallenged findings of fact are verities on appeal. In re Marriage of Rounds, 4 Wn. App. 2d 801, 804, 423 P.3d 895 (2018). Under RCW 7.105.225(1)(a), “[t]he court shall issue a protection order if it finds by a preponderance of the evidence that the petitioner has proved the required criteria.” For domestic violence protection orders, the statute requires that “the petitioner has been subjected to domestic violence by the respondent.” Id. Domestic violence includes: (b) Physical harm, bodily injury, assault, or the infliction of fear of physical harm, bodily injury, or assault; nonconsensual sexual conduct or nonconsensual sexual penetration; coercive control; unlawful harassment; or stalking of one family or household member by another family or household member. RCW 7.105.010(10). Mr. Miller contends the superior court abused its discretion by entering the no contact order without applying the parental immunity doctrine and considering all the circumstances surrounding the physical encounter, including whether he was acting defensively in response to his son’s aggression. RCW 9A.16.100 provides a “safe harbor” permitting a parent to use force against a child in limited circumstances. Ugolini v. Ugolini, 11 Wn. App. 2d 443, 447, 453 P.3d 12 No. 41738-7-III LeMieux v. Miller 1027 (2019). Under RCW 9A.16.100(1), “the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child.” However, certain actions are presumed unreasonable, including, “interfering with a child’s breathing . . . or . . . doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks.” RCW 9A.16.100(2)(d), (f). In determining whether bodily harm is reasonable or moderate, the court must consider “[t]he age, size, and condition of the child and the location of the injury.” Id. The court must consider all the circumstances of the physical discipline to determine whether it was “objectively excessive, immoderate, or unreasonable.” Ugolini, 11 Wn. App. 2d at 448. Washington’s parental immunity doctrine, as recognized today, shields a parent from liability for ordinary negligence in the performance of parental responsibilities. Zellmer v. Zellmer, 164 Wn.2d 147, 155, 188 P.3d 497 (2008). Mr. Miller argues the trial court failed to apply the parental immunity doctrine as set forth in Zellmer. But Zellmer addressed tort claims and reaffirmed that parental immunity bars liability for negligent supervision, not for wanton or willful misconduct. Id. at 161. This case, by contrast, involves a domestic violence protection order based on a preponderance of the evidence under chapter 7.105 RCW. Mr. Miller does not explain why a doctrine governing tort liability would bar—or otherwise control—the availability of protective relief under chapter 7.105 RCW. 13 No. 41738-7-III LeMieux v. Miller Even if Zellmer were relevant, whether Mr. Miller’s conduct fell within RCW 9A.16.100’s safe harbor—or, instead, was unreasonable—was a factual question for the trial court to resolve. We do not reweigh the evidence or make credibility determinations on appeal, and we defer to the trial court’s resolution of conflicting testimony. Bering, 106 Wn.2d at 220; Snyder, 152 Wn. App. at 779. Substantial evidence supports the trial court’s finding that Mr. Miller subjected the children to “physical harm, bodily injury, assault, or the infliction of fear of physical harm, bodily injury, or assault.” CP at 113. Accordingly, the trial court did not abuse its discretion in entering the domestic violence protection order. Mr. Miller next argues the trial court failed to identify the circumstances it considered in granting Ms. LeMieux-Miller’s petition. The record refutes this claim. The court cited, and read from, RCW 9A.16.100, and stated it was “looking at the statute on [corporal punishment],” and discussed the photographs depicting scratches on A.M.’s neck. TP at 49. The court acknowledged the competing accounts of the September 15 incident, addressed Mr. Miller’s e-mail to A.M. sent that day, and assessed credibility as between Mr. Miller, Ms. LeMieux-Miller, and A.M. By reading Ms. LeMieux-Miller’s petition and Mr. Miller’s declaration into the record, the court necessarily considered Mr. Miller’s characterization of the restraint and the contrary allegation that he placed A.M. in a chokehold that interfered with his breathing. The court further indicated it 14 No. 41738-7-III LeMieux v. Miller would consider the guardian ad litem’s information as evidence. In its oral ruling, the court specifically stated: [W]hat I believe is that it’s more likely true than not that [Mr. Miller] lost control, and that when he lost control, he engaged in a physical contact with [A.M.], who retaliated, and during that retaliation, he scratched his neck, put him in a headlock, which may have interfered with his breathing, more likely true than not did interfere with his breathing, and he pushed him away onto the couch. All three of those separately and certainly collectively amount to a violation of use of force on children, and is within the ambit of domestic violence TP at 68. Accordingly, to the extent Mr. Miller argues the superior court commissioner erred by failing to identify the circumstances he considered in granting the petition, the record shows no error. Lastly, we reject Mr. Miller’s argument that the order’s “7. Other Findings” section and section 8.O. are inconsistent. CP at 112 (boldface omitted). Section 8.O. requires the court to enter an order to surrender and prohibit weapons if the court imposes the “No Harm restraints” in section 8.A. and finds that either (1) “the restrained person represents a credible threat to the physical safety of a protected person” or (2) the protection order “explicitly prohibits the use, attempted use, or threatened use of physical force” against a protected person. CP at 116 (boldface omitted). Here, the court imposed the “No Harm” restraints in section 8.A., restraining Mr. Miller from causing any physical harm or bodily injury to the children. CP at 113. Mr. Miller’s argument 15 No. 41738-7-III LeMieux v. Miller overlooks the disjunctive “or” in section 8.O. and the “No Harm” restraints the court entered under section 8.A. CP at 113 (some capitalization omitted). Accordingly, the order contains no inconsistency that undermines its validity. 3 Affirmed. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Cooney, A.C.J. WE CONCUR: Murphy, J. Hill, J. Although Mr. Miller does not separately brief the issue, his challenge to the 3 superior court’s denial of his motion to revise the commissioner’s November 12, 2025, protection order fails. Mr. Miller filed his motion for revision on November 25, 2025, three days after the 10-day deadline in RCW 2.24.050. 16