Department of Social & Health Services v. Dabbagh

193 Wash. App. 445
CourtCourt of Appeals of Washington
DecidedApril 18, 2016
DocketNos. 73055-0-I; 73056-8-I; 73057-6-I; 73157-2-I; 73158-1-I; 73159-9-I
StatusPublished
Cited by11 cases

This text of 193 Wash. App. 445 (Department of Social & Health Services v. Dabbagh) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Social & Health Services v. Dabbagh, 193 Wash. App. 445 (Wash. Ct. App. 2016).

Opinion

Trickey, J.

¶1 — Ibtissam Nakalji and Mohammed Dabbagh appeal the termination of their parental rights. Nakalji argues that the trial court denied her due process by excluding her from the courtroom while her son testified. We hold that the trial court adequately protected Nakalji’s due process rights by allowing her attorney and guardian ad litem to remain in the courtroom during the testimony and granting a recess to confer with her before cross-examination. We affirm the trial court’s decision to termi[449]*449nate her parental rights because substantial evidence supported its findings.

¶2 Dabbagh challenges the termination of his parental rights on the basis that the best interest of the child standard is constitutionally vague. Because Dabbagh does not show how the standard was vague as applied to him, we affirm the termination of his parental rights as well.

FACTS

¶3 Mohammed1 Dabbagh and Ibtissam Nakalji are the biological parents of four children: S.D., born June 22, 1996;2 A.D., born December 24, 1997; R.D., born September 3, 2003; and A.D.2,3 born September 14, 2008.

¶4 In June 2012, S.D. disclosed that Dabbagh had been sexually abusing her for the past five years. Law enforcement officers placed S.D. in protective custody and arrested Dabbagh. The State removed the remaining three children from Nakalji’s custody several days later because she was unable to parent them without Dabbagh. The court found Nakalji to be incompetent and appointed her a guardian ad litem.

¶5 For the next year, A.D., R.D., and A.D.2 lived with their paternal uncle. In June 2013, the children moved to a foster home, where they remained through January 2015. Their foster parents expressed interest in adopting them.

¶6 During the dependency, Dabbagh attended parenting classes and counseling for domestic violence. Because he continued to deny that he had sexually abused S.D., he was found unamenable to treatment for sexual deviancy. Na-kalji also continued to deny that Dabbagh abused S.D.

[450]*450¶7 Nakalji had suffered from depression since at least 2007. As her depression worsened, she became less engaged in the court proceedings and even stopped participating in the children’s visits at her home. Her depression ultimately resulted in her hospitalization in April 2014. While hospitalized, Nakalji began taking medication for depression and psychosis. Her depression and engagement improved over the next few months, but she remained extremely dependent on Dabbagh for her own needs and for guidance on parenting.

¶8 In December 2014, the State petitioned to have Dabbagh’s and Nakalji’s parental rights terminated. The termination fact-finding took place in January 2015. The children’s current and former social workers, Nakalji’s mental health providers, A.D., two visitation supervisors, and the children’s guardian ad litem all testified for the State. The State also played S.D.’s videotaped deposition. Dabbagh testified at the State’s request. The court excluded Dabbagh and Nakalji from the courtroom during A.D.’s testimony.

¶9 The court terminated both parents’ rights. Dabbagh and Nakalji appeal.

ANALYSIS

Exclusion of Nakalji during A.D.’s Testimony

¶10 Nakalji contends that the trial court erred and violated her right to due process when it excluded her from the courtroom during A.D.’s testimony. We reject this argument and hold that the court adequately protected Nakalji’s rights.

¶ 11 Parents are guaranteed due process when the State seeks to terminate their parental rights. In re Welfare of L.R., 180 Wn. App. 717, 723, 324 P.3d 737 (2014); U.S. Const. amend. XIV; Wash. Const, art. I, § 3. The State must give parents “notice, an opportunity to be heard and defend, [451]*451and the right to be represented by counsel.” L.R., 180 Wn. App. at 723. Although the right to be heard “ ‘ordinarily includes the right to be present,’ ” that right is not absolute. In re Welfare of S.E., 63 Wn. App. 244, 248-49, 820 P.2d 47 (1991) (emphasis omitted) (quoting In re Welfare of Houts, 7 Wn. App. 476, 480-81, 499 P.2d 1276 (1972)). The court may exclude a parent from part of her termination of parental rights hearing, so long as the procedures satisfy due process. S.E., 63 Wn. App. at 251.

¶12 To determine if a specific procedure adequately protects a parent’s right to due process, the court engages in a three-factor balancing test. Krause v. Catholic Cmty. Servs., 47 Wn. App. 734, 738, 737 P.2d 280 (1987) (test derived from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). The three factors are the private interest at stake, the government interest at stake, and the risk of error created by the procedure. In re Dependency of T.R., 108 Wn. App. 149, 154-55, 29 P.3d 1275 (2001).

¶13 We review alleged due process violations de novo. In re Det. of Johnson, 179 Wn. App. 579, 584, 322 P.3d 22, review denied, 181 Wn.2d 1005, 332 P.3d 984 (2014).

¶14 Here, the court excluded Nakalji and Dabbagh from the courtroom while A.D. testified. A.D. testified about witnessing Dabbagh sexually assault S.D. He also described how Nakalji’s mental illness impacted him and his older sister.

¶15 He testified that Nakalji had been depressed for as long as he could remember and would often sit on the couch and talk to herself, forcing S.D. to take care of A.D.2. He explained that, as recently as October 2014, Nakalji still relied on Dabbagh to tell her what to do during visits and that Nakalji would not be able to stand up to Dabbagh because she was too loyal and dependent on him. Finally, A.D. testified that he had seen positive changes in himself [452]*452since the dependency began, and he wanted the court to terminate his parents’ rights.

¶16 The court permitted Nakalji’s attorney and guardian ad litem to remain in the courtroom during the testimony. The court also promised to “adequately grant requests” for breaks so that the attorneys would have an opportunity to confer with the parents and prepare for cross-examination.

¶17 Both Nakalji and the State have strong interests at stake in these proceedings. Nakalji “has a fundamental liberty interest in the care and custody of her children.” L.R., 180 Wn. App. at 724. The State, likewise, has a strong interest in protecting the rights of A.D. and the other children. L.R., 180 Wn. App. at 727. The State has no interest in separating children from their fit parents. T.R., 108 Wn. App. at 159. Excluding Nakalji and Dabbagh from the courtroom served the State’s interest in protecting A.D.’s welfare because the court found that excluding them was important to protect A.D. and A.D.’s relationship with his parents. But that exclusion would not promote the State or Nakalji’s interests if it created a risk that the State would erroneously terminate Nakalji’s parental rights.

¶18 Therefore, the primary question is whether allowing A.D.

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Bluebook (online)
193 Wash. App. 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-social-health-services-v-dabbagh-washctapp-2016.