WINNEMUCCA – The attorney who worked to exonerate a man charged with felony child abuse is now working to get the temporary restraining order (TRO) against his client lifted.

Robert Dolan appealed the decision by the Justice of the Peace to extend the temporary restraining order arguing the system lacks an objective basis for granting TRO extensions.

Sebastian Deleon-Mariscal, 36, was charged with felony child abuse, neglect or endangerment for using a kitchen knife to scrape the polish off his son’s toenails. That charge has since been dismissed.

The investigation into the toenail scraping incident was instigated by the child’s mother who is in a legal battle with the child’s father over visitation rights.

In addition to the felony charge, the mother was also able to get a TRO because her former husband was charged with a felony violent act.

A TRO is a document issued by the courts in an attempt to prevent suspects who have used violence or the threat of violence from having contact with the victim. The TRO is issued for a specific time period but extensions may be granted by the court.

CASE HISTORY: Deleon-Mariscal was bound over from Union Township Justice Court to 6^th Judicial District Court on the felony after Justice of the Peace Gene Wambolt found there was sufficient evidence for trial. It should be noted the standard for a bind-over is slight or marginal evidence, so there doesn’t have to be a preponderance of evidence to get the bind-over.

Dolan appealed the bind-over and successfully argued there was insufficient evidence to charge Deleon-Mariscal with felony child abuse.

The Humboldt County DA’s Office did not allege the boy was physically harmed but rather that he suffered severe mental trauma as a result of having the polish scraped off his toenails with a kitchen knife.

Judge Richard Wagner ultimately ruled there was insufficient evidence to tie the boy’s trauma to the toenail scraping incident since he was caught in the middle of a contentious legal battle between his parents.

Although the charges were dismissed, Deleon-Mariscal was deported to his native country and the TRO remained in place.

THE TRO: The mother of the child was represented in the civil case by local attorney Jack Bullock. Bullock was able to get the restraining order from the justice of the peace based on the felony charge.

The law did not require a hearing when the TRO was initially issued; however, there was a hearing for the extension request, which was granted.

THE TRO APPEAL: Dolan appealed the TRO extension to the 6^th Judicial District Court. The appeal was heard by Judge Wagner on Wednesday, July 7. Wagner said while he thought scraping toenail polish off with a kitchen knife wasn’t a good idea, he didn’t think the actions represented a felony.

During the hearing Dolan argued there was no basis for the TRO extension because Deleon-Mariscal had been in jail during the entire time the restraining order was in place. He couldn’t have been a threat to anyone nor was any evidence presented that he made threats.

When it comes to TRO extensions there appears to be no room for redemption. As Dolan noted, a TRO can be issued without a hearing, and a TRO extension can be obtained based on past bad acts that earned the initial TRO. So, even if the individual was as good as gold during the entire time the TRO was in effect, the extension will be issued due to the original behavior.

In the case at hand, Dolan pointed out, the original TRO was obtained based on the felony child abuse charge and remained in place despite the fact the defendant was exonerated of the charge.

Bullock countered and noted past behavior can be an indicator of future behavior. A person who’s a danger to their family members may sit-out the TRO then resume the aggressive or violent behavior when the restraining order expires. In the case of a parent and child, the parent with a violent past may continue the behavior if visitation privileges were restored.

Judge Wagner did not make a decision from the bench, a written decision will be issued at a later date, but he did express serious concerns about the system of issuing TRO’s and extensions.

He referred to TRO’s as “a severe sanction” and noted the serious consequences that could arise from them – including the loss of visitation rights, employment, gun rights, and as in the case at hand, the deportation of the defendant. He commented, “There needs to be balance to protect people’s rights.”

Wagner commented specifically on the lack of evidence considered when the TRO and extension were issued. He questioned the need for a hearing at the time of the TRO extension if alleged past bad act were always going to be used against the defendant.

Complicating the case is the lack of an objective standard for issuing TRO extensions. Bullock attempted to argue fear alone was enough, but he was countered by Wagner who noted fear is a subjective standard not an objective one courts can apply.

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