IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of ) ) No. 76964-2-I A.E.T.H. (D.O.B. 02/24/2013), ) (consolidated with 77002-1-I, ) 77660-6-I, and 77960-5-I) Minor child. ) ) DIVISION ONE STATE OF WASHINGTON, ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES, ) ) Respondent, ) PUBLISHED OPINION
v. ) FILED: August 12, 2019
NYLYSHA STARVION BELAFON ) ARADON and CAREY ALLEN HAYES, ) ) Appellants.
SMITH, J. — The right to a fair trial before an impartial tribunal is a basic
requirement of due process. Peters v. Kiff, 407 U.S. 493, 501, 92S. Ct. 2163, 33
L. Ed. 2d 83 (1972). This right to due process is especially critical in a
proceeding to terminate parental rights, where so much is at stake for both the
parent and the child. Here, Nylysha Aradon and Carey Hayes seek reversal of
the order terminating their parental rights to their daughter, A.H. They argue that
they were denied a fair trial before an impartial tribunal. We agree.
After the termination trial, and after extensive posttrial proceedings on
allegations of misconduct of the Snohomish County Volunteer Guardian Ad Litem
Program (VGAL Program), Judge Anita Farris recused herself from the entire No. 76964-2-1/2
proceedings, including the termination proceeding. Judge Farris concluded that
the parents were “denied their due process constitutional right to an impartial
judge by having a Snohomish County Superior Judge preside over this case.”
Judge Earns explained that “[t]he manner in which the [VGAL Program] was
operated during this case creates doubt about the Snohomish County Superior
Court’s ability to be impartial in this case involving court employees directly
participating in the litigation.” Nevertheless, Judge Earns concluded that entry of
the order was a ministerial act and entered the termination order.
We hold that the parents’ due process rights were violated and that entry
of the order was not a ministerial act. Therefore, we reverse the termination
order and we remand to a county other than Snohomish County for a new trial.
We also direct the trial court to vacate the CR 59, CR 60, and sanction orders
entered after Judge Farris’s recusal. On remand, we direct the court to appoint
an attorney and a new guardian ad litem (GAL) forA.H.
FACTS
A.H. was born on February 24, 2013, to mother Aradon and father Hayes
(parents). At birth, A.H. tested positive for methadone, and Aradon tested
positive for methadone and marijuana. The parents had a verbal disagreement
at the hospital, and A.H. was possibly dropped into her crib. Although A.H. was
not injured, Hayes was escorted out of the hospital by security. Four days after
her birth, the Department of Social and Health Services (Department) removed
A.H. from her parents’ custody and placed her with a foster parent with whom
she has resided since her removal in 2013.
2 No. 76964-2-113
The Department filed a dependency petition in Snohomish County
Superior Court (superior court) on February 28, 2013, and A.H. was found to be
dependent as to both parents on May 23, 2013. According to the order of
dependency, Aradon’s parental deficiencies included mental health and
substance abuse issues and Hayes’ parental deficiencies included substance
abuse and a long-term domestic violence problem. The superior court ordered
the parents to engage in services and gave each parent four hours of supervised
visitation per week.
During the dependency, the superior court appointed Denise Brook to
serve as the volunteer guardian ad litem (VGAL). VGAL Brook was a volunteer
with the VGAL Program, which is an agency of the superior court. The VGAL
Program’s staff members are considered court employees.
It is undisputed that VGAL Brook believed it was in A.H.’s best interests to
remain permanently with the foster parent and that VGAL Brook opposed
expanded visitation with the parents. During her time on the case from 2014 to
2015, VGAL Brook committed numerous breaches of confidentiality that
benefited the foster parent. She disclosed previous parental terminations and
the parents’ criminal records to the foster parent. She also lobbied the VGAL
Program to cancel parental visitations if a strict food plan, which the parties later
discovered was medically unnecessary, was not followed. At the same time, she
opposed giving the parents access to A.H.’s medical providers. She also tried to
attend a parenting class to observe A.H. and Aradon without Aradon’s knowledge
after an instructor told her she could not attend for confidentiality reasons.
3 No. 76964-2-114
VGAL Brook died in January 2015. In February 2015, the superior court
appointed Susan Walker, VGAL Brook’s program coordinator and an employee
of the VGAL Program, as the replacement VGAL. The declaration submitted by
VGAL Walker in support of her motion replacing VGAL Brook simply states that
“‘Ms. Brook is no longer able to work the case.” No one notified the superior
court or the parties that VGAL Brook had died.
VGAL Walker was largely uninvolved in the case from the time of her
appointment until the termination trial in August 2015. During her seven-month
tenure as the VGAL, Walker contacted only one service provider for one parent,
observed only one parent at one visit, and never personally spoke to the parents.
And despite concerns that A.H. was allergic to certain foods, VGAL Walker never
contacted A.H.’s medical providers and did not inform the parents when A.H.’s
issues were resolved and her food intake no longer needed to be restricted in the
same ways previously communicated.
The six-day termination trial began on August 26, 2015, before Judge
Farris. Many people testified, including both parents, VGAL Walker, several
social workers, and several service providers. VGAL Walker’s testimony was
particularly troubling, and Judge Earns found it to be “uninformed, inconsistent,
dishonest, and biased.” Judge Farris described seven specific instances during
trial when VGAL Walker’s testimony lacked candor. In one of those instances,
VGAL Walker testified that she could not recall whether VGAL Brook sent the
parents’ criminal records to the foster parent’s adoption agency. But during
VGAL Walker’s cross-examination, Aradon’s attorney revealed an e-mail
4 No. 76964-2-1/5
obtained from the VGAL Program during discovery that referenced an
attachment appearing to be criminal records. Concerned that a VGAL would
illegally forward criminal records to the adoption agency, Judge Earns ordered
the VGAL Program to produce the attachment, which it had not turned over as
part of discovery.
The VGAL Program produced the requested attachment. The attachment
revealed that VGAL Walker was the person who requested and sent the criminal
records to VGAL Brook, who then illegally sent them to the foster parent’s
adoption agency. During a hearing on September 11,2015, Judge Farris
determined that VGAL Walker was deliberately untruthful about her knowledge of
the e-mail and attachment and expressed her disappointment and shock at the
behavior of the VGALs and the VGAL Program in this case. After discussing
other issues of credibility and bias of the VGALs and the VGAL Program, Judge
Earns decided not to give VGAL Walker’s testimony any weight. In the oral
ruling, Judge Farris terminated the parents’ parental rights to A.H. Judge Farris
also ordered the VGAL Program to “produce all documents, including emails,
notes of all communications had with the foster parents and with the adoption
agency.” Judge Farris did not enter written findings or a written order of
termination at this time.
Shortly after trial, Aradon’s attorney filed a formal complaint against VGAL
Walker with the superior court. In October 2015, the parents moved to remove
VGAL Walker based on her misconduct. In response to this motion, Sara Di
Vittorio, an attorney with the civil division of the Snohomish County Prosecutor’s
5 No. 76964-2-116
Office, wrote a threatening letter on behalf of the VGAL Program to Aradon’s
attorneys on November 3, 2015. In that letter, Di Vittorio demanded that the
attorneys “cease disclosing” confidential information about VGALs in court filings
and in conversations with other members of the legal community, or the VGAL
Program would “consider further legal steps.” At the end of November 2015, the
superior court notified Aradon’s attorney that his administrative complaint against
VGAL Walker was deemed unfounded but that it had prompted the superior court
to reassess and clarify the VGAL Program’s complaint procedure.
Around this time, Kirsten Haugen, a staff attorney for the VGAL Program
who also represented VGAL Walker, met with Di Vittorio and other lawyers and
administrators for the superior court and discussed the motion to remove VGAL
Walker. Di Vittorio advised Haugen to oppose the parents’ motion to remove
VGAL Walker by filing motions to strike and redact based on CR 11 and a local
confidentiality rule. Di Vittorio’s assistance to Haugen, who represented a party
adversarial to the parents, was not disclosed to the parents’ attorneys.
Employees of the VGAL Program, and therefore employees of the
superior court, also engaged in retaliation against attorneys in the same firm as
Aradon’s attorney. For example, they issued boilerplate objections to all
discovery requests in every case involving that firm, refused to allow the firm’s
attorneys to enter the VGAL office without an escort, and contacted the firm’s
financial authority, the Office of Public Defense, as payback for the administrative
complaint against VGAL Walker.
6 No. 76964-2-1/7
In December 2015, Judge Earns entered an order continuing the parents’
motion to remove VGAL Walker to January 2016 to allow the parties time to
gather evidence in support of a full evidentiary hearing on the parents’ motion to
remove VGAL Walker. Judge Farris also ordered “that the issue of whether the
Court’s prior termination decision can stand in light of any GAL improprieties
found shall jjp~ be heard at the next hearing and shall be set for a date following
the entry of final findings on the motion to remove GAL.”
On January 29, 2016, Judge Earns allowed VGAL Walker to withdraw
from the case without a hearing. On February 11, 2016, Judge Farris appointed
Paige Buurstra, an attorney guardian ad litem (AGAL), as GAL to A.H.
Judge Farris held several evidentiany hearings in February 2016 related to
the discovery issues and VGAL misconduct in the case. The parents’ attorneys
presented evidence that the VGAL5 resisted liberalized visitation for the parents,
argued to impose onerous services on the parents, and engaged in abusive
litigation tactics.
Judge Earns found that VGAL staff attorney Haugen proffered untruthful
testimony during the hearings. For example, Haugen submitted a declaration
from VGAL Walker that stated A.H.’s most current allergy testing occurred in
2014. But the most current allergy testing actually occurred in 2015 and showed
that “the food list pushed by the GAL was preventing [A.H.] from eating foods she
could eat, and, more importantly, was failing to warn [that A.H.] should not be fed
tree nuts due to potential allergies.” Haugen also argued that VGAL Brook’s
decision to send confidential information about A.H.’s siblings to the foster
7 No. 76964-2-1/8
parent’s adoption agency was harmless because the agency had handled the
adoptions of all nine ofA.H.’s siblings and thus already had the information. But
the adoption agency’s agent later testified that it had handled only one of the
sibling’s adoption.
Finally, Judge Farris found that “abusive litigation tactics were used for
improper purposes during these proceedings.” Most notably, VGAL Brook’s
entire hard copy case file, which was in the VGAL Program’s possession,
“mysteriously disappeared without a trace or any explanation in the middle of
post-trial proceedings about misconduct of that VGAL.” The VGAL Program also
employed “document dumps” during posttrial production to make it hard to find
information, destroyed or withheld case-related e-mails, and made false or
misleading statements to cover up prior misconduct.
On March 4, 2016, as a result of the VGAL misconduct that occurred and
was uncovered during these evidentiary hearings, the parents filed a motion to
vacate the decision to terminate their parental rights and for discovery sanctions
against the VGALs and the VGAL Program. Judge Farris heard argument and
testimony on this motion in late March 2016. On June 10, 2016, Judge Earns
orally denied the motion. Although Judge Farris determined that there was
“pervasive and egregious” misconduct by the VGALs and the VGAL Program in
this case, Judge Farris found that the misconduct “did not affect the verdict and
did not prevent a fair procedure.”
On September 6, 2016, the parents filed a new motion for sanctions
against the VGAL Program, Haugen, and Snohomish County Superior Court
8 No. 76964-2-1/9
Administration requesting substantial sanctions for each discovery violation and
false fact presented since October 2015. The superior court, on behalf of the
VGAL Program, opposed the motion, arguing that it was not a party to the
termination and that Judge Earns could not impose sanctions against the
superior court. Judge Earns held a hearing on the sanctions motion on
September 23, 2016. During this hearing, Di Vittorio represented both the VGAL
Program and the superior court.
On October 28, 2016, the superior court moved for Judge Earns to recuse
herself from the sanctions portion of the proceeding, strenuously arguing that as
a member of the superior court, Judge Farris had a conflict of interest in hearing
the motion for sanctions. On November 18, 2016, Judge Farris held a hearing on
the recusal motion and decided she needed to recuse. In a subsequent hearing
on February 17, 2017, Judge Earns heard argument as to whether it was still
possible to enter a final written order on termination, which had been prepared
for her signature.
On May 17, 2017, Judge Earns entered an “Order Regarding Entry of Trial
Findings and Order on Recusal” (recusal order) and recused herself from the
entire proceeding, including the termination trial. Judge Farnis also entered a
written termination order. Judge Farris did not rule on the parents’ outstanding
sanctions motion. After her recusal, Judge Farris entered a 317-page
memorandum decision explaining in great detail her reasons for recusing. Below
is the table of contents from that memorandum decision:
9 No. 76964-2-1110
I. THE WAY THE VGAL PROGRAM WAS OPERATED DENIED THE PARTIES THE DUE PROCESS RIGHT TO AN IMPARTIAL JUDGE....
A. Judicial conflicts were created by the following: using court employees as parties, lawyers and witnesses with no ethical boundaries or firewalls in place; allowing the court (VGAL Program) to enter into the case as a litigant and be represented by a lawyer; using one lawyer to simultaneously represent the GAL party and the Superior Court; and using the same lawyer that represented the Superior Court and its judges to also represent and assist the GAL’s lawyer in litigating this case against the parents. .
B. Snohomish County Superior Court asserted a Snohomish County Judge cannot rule on matters involving the VGAL Program or its employees because the VGAL Program is the Superior Court, the acts of VGAL Program employees are the acts of the Superior Court, and judging or sanctioning the acts of VGAL Program employees is the Judge judging or sanctioning himself or herself.
C. If the VGAL Program/Superior Court’s assertion that all acts of VGAL employees are acts of the Superior Court is true, there is an appearance the Snohomish County Superior Court acted as judge, party, lawyer and witness in this one case. .
D. If Snohomish County Superior Court Judges are disqualified from hearing a motion seeking sanctions against a VGAL Program attorney because sanctions that impact the VGAL Program impact the Superior Court, then they are also disqualified from hearing other matters that impact the VGAL Program. .
E. There is no factual, logical or legal reason the grounds for disqualification apply only to the Motion for Sanctions. .
F. Recusal is constitutionally required to maintain the right to an impartial judge because there was no ethical boundary protocol or firewall to separate the Superior Court and its Judges from the VGAL Program in this pending litigation. . .
G. The VGAL Program claims the way it is structured creates a system where the only way opposing parties can obtain protection from VGAL attorneys engaging in abusive litigation tactics is by litigating against the Superior Court; if that is true, opposing parties are denied equal rights to protection from abusive litigation tactics. . .
10 No. 76964-2-I/i I
II. RECUSAL IS NECESSARY BECAUSE THERE IS AN APPEARANCE THE SNOHOMISH COUNTY SUPERIOR COURT ALIGNED WITH AND ASSISTED THE GALS’ ATTORNEY IN LITIGATING THIS CASE AGAINST THE PARENTS.
A. There is an appearance the Snohomish County Superior Court specifically directed the GAL’s attorney to impede discovery requests from the mother’s attorneys.
B. The Superior Court granted ex parte court orders allowing the Superior Court Program to enter into this case as a party separate from the GAL, permitted a lawyer representing the Superior Court’s interests to appear and argue the Superior Court’s interests to the Court, and permitted the same lawyer representing the Court’s interests to simultaneously represent the GAL.
C. The Snohomish County Superior Court threatened to take legal action against the mother’s attorneys personally for filing evidence in this case and to prevent them from filing additional similar evidence.
D. The Superior Court assisted the GAL’s attorney in filing Motions to Strike and Redact some of the opposing parents’ pleadings and evidence.
E. Employees of the Superior Court appeared to try to influence or pressure the parents’ attorneys by threatening and retaliating against the parents’ attorneys.
F. The appearance that the Superior Court was responsible for withholding, losing or destroying evidence of GAL misconduct raises doubt as to the Court’s impartiality. .
G. The Superior Court bench became directly involved in the Attorney Fees and Sanctions Motion that was part of a CR 59/60 Motion...
III. RECUSAL IS NECESSARY BECAUSE THERE IS AN APPEARANCE THE SNOHOMISH COUNTY SUPERIOR COURT ATTEMPTED TO IMPROPERLY INFLUENCE OR PRESSURE THE TRIAL JUDGE.
A. The VGAL Program/Superior Court brought a last minute request to have this trial judge summarily rule in its favor in a
Ii No. 76964-2-1112
manner that appeared to attempt to improperly exploit its connection to the court to influence or pressure the trial judge.
B. There is an appearance a Snohomish County Superior Court employee tried to improperly influence or pressure the trial judge via ex parte contact by anonymously placing a memorandum addressing judicial disqualification in the judge’s mailbox.
C. There is an appearance prior attempts by the GAL’s attorney to improperly influence or pressure the trial judge were acts legally attributable to the Superior Court.
IV. EVERYONE IN THIS CASE AGREED THE CONVERSATION WITH THE PRESIDING JUDGE COULD NOT FORM ANY LEGAL BASIS FOR JUDICIAL DISQUALIFICATION.
V. RECUSAL IS NECESSARY ON THE MOTION AGAINST VGAL ATTORNEY HAUGEN BECAUSE FINDINGS WERE MADE WITHOUT SERVICE ON HER AND BECAUSE THE INTERRELATIONSHIP BETWEEN THE VGAL PROGRAM LAWYER AND THE VGAL PROGRAM REQUIRES THAT THE MOTIONS AGAINST THEM BE HEARD TOGETHER.
In summary, Judge Farris concluded the memorandum decision by stating:
This memorandum decision is set forth to make the reasons the Motion to Recuse is being granted clear. I find and conclude herein only that at this time the facts, evidence and arguments set forth above create an appearance the parties in this case cannot obtain an impartial proceeding in Snohomish County Superior Court.
On May 31, 2017, the mother filed a CR 60 motion to vacate the
termination order and a CR 59 motion for a new trial based on the VGAL
Program’s misconduct and its relationship with the superior court. On June 5,
2017, the father joined in the mother’s motions. On June 13, 2017, the governor
appointed Judge T.W. Small of Chelan County Superior Court to preside over the
case. In July 2017, Aradon filed an additional CR 60 motion to vacate, arguing
that relief from judgment was necessary because the VGAL Program either lost
12 No. 76964-2-1/13
or destroyed necessary evidence. After an October 6, 2017, hearing in
Snohomish County, Judge Small denied the CR 59 and CR 60 motions and the
motion for sanctions. The parents appeal.
ANALYSIS
Due Process and Appearance of Fairness
The parents argue that the superior court violated both the appearance of
fairness doctrine and their due process right to a proceeding free from bias in this
proceeding. Because the dependency, the termination trial, and the subsequent
proceedings occurred in a biased tribunal where the superior court assisted and
advocated against the parents, we agree and reverse the termination order. We
also direct the trial court to vacate the orders entered by Judge Small—the order
denying the CR 59 and CR 60 motions and the sanctions order—and remand for
a new trial to a county other than Snohomish County.
“‘A fair trial in a fair tribunal is a basic requirement of due process.”
Peters v. Kiff, 407 U.S. 493, 501, 92S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (quoting
In re Murchison, 349 U.S. 133, 136, 75 5. Ct. 623, 99 L. Ed. 942 (1955)). “Due
process requires a competent and impartial tribunal.” Peters, 407 U.S. at 501.
“Moreover, even if there is no showing of actual bias in the tribunal, . . due
process is denied by circumstances that create the likelihood or the appearance
of bias.” Peters, 407 U.S. at 502.
Similarly, under the appearance of fairness doctrine, “a judicial proceeding
is valid if a reasonably prudent, disinterested observer would conclude that the
parties received a fair, impartial, and neutral hearing.” State v. Solis-Diaz, 187
13 No. 76964-2-1/14
Wn.2d 535, 540, 387 P.3d 703 (2017). “The law requires more than an impartial
judge; it requires that the judge also appear to be impartial.” Solis-Diaz, 187
Wn.2d at 540. “The party asserting a violation of the appearance of fairness
must show a judge’s actual or potential bias.” Solis-Diaz, 187 Wn.2d at 540.
“The test for determining whether the judge’s impartiality might reasonably be
questioned is an objective test that assumes a reasonable observer knows and
understands all the relevant facts.” Solis-Diaz, 187 Wn.2d at 540.
Here, Judge Earns displayed no personal bias and attempted to conduct
an unbiased proceeding. But the sticky wicket is that the tribunal in which A.H.’s
dependency and termination proceedings took place was biased because of the
involvement of superior court employees working against the parents in this
case. “[U]nchallenged findings are verities on appeal.” In re Dependency of
M.S.R., 174 Wn.2d 1,9,271 P.3d 234 (2012). And Judge Earns entered many
unchallenged findings of fact in her recusal order and memorandum decision,
which was incorporated by reference in the recusal order. For example, Judge
Earns found that before the termination trial, “the mother’s attorneys and the
GAL’s attorney[, Kirsten Haugen,] got in a global discovery dispute” and “[t]he
GAL attorney then had private meetings about the discovery dispute with the
Head Superior Court Administrator and the Civil Division attorneys representing
the Superior Court and Judges.” The head administrator instructed Haugen to
apply the following procedures to any discovery requests by Aradon’s attorney:
blanket object to every discovery request; refuse to produce any discovery ever unless a discovery conference is first conducted at the VGAL Offices; refuse to produce any discovery unless opposing counsel come to the VGAL Offices and read the discovery in the
14 No. 76964-2-1/15
offices first and identify page by page the discovery requested; and avoid the requirement to provide free discovery to indigent parents by charging the court appointed attorneys personally for each page of discovery rather than charging the indigent clients.
“When the parents’ attorneys complained, the GAL’s attorney advised them that
this ‘discovery procedure’ was not being imposed by the GAL’s lawyer, but had
been dictated to the GAL attorney by the Head Superior Court Administrator and
the Superior Court’s lawyers on behalf of the VGAL Program, i.e., the Superior
Court.” Judge Earns explained that these “discovery impediments” had an effect
on A.H.’s termination trial because they
remained in place during about the first two years of this dependency case when the GAL in the case was engaging in significant misconduct that was only much later discovered. That GAL misconduct was not discovered when it was occurring because GAL discovery was not being exchanged due to this “discovery procedure.”
Additionally, Judge Earns found that after the termination trial and during
the subsequent litigation on VGAL misconduct, Di Vittorio met with Haugen and
“advised and directed [Haugen] to make motions to strike and redact the parent’s
pleadings in this case” and gave “directions on what to include in the motions and
advice on the meaning of applicable law.” Di Vittorio also “sent the mother’s
attorneys a letter threatening to take legal action against them personally for filing
certain evidence in this case,” which “essentially threatened to take some legal
action against the mother’s attorneys if they did not capitulate and allow certain
pleadings to be stricken or redacted as was being requested” by Haugen. These
actions call the superior court’s impartiality into doubt because “the Superior
Court’s attorneys, as part of their representation of the Superior Court and its
15 No. 76964-2-1/16
judges, threatened to take legal action against a litigant for filing evidence in a
termination case when the case was pending before a judge of that same court.”
Judge Farris also found that Di Vittorio also created an appearance of
fairness issue when Di Vittorio repeatedly referred to the superior court and ‘the
VGAL Program collectively as “the Court” in response to Aradon’s motion for
sanctions. At the September 2016 hearing on sanctions, Di Vittorio identified
herself as being present “on behalf of the Snohomish County Superior Court.”
Di Vittorio’s representation that she was there on behalf of “the Court” and the
VGAL Program objectively created bias within the proceedings.
Furthermore Judge Farris explained that during the November 4, 2016,
hearing on the recusal motion, Di Vittorio brought “two other Superior Court
Judges, including the Presiding Judge, to the courtroom for the hearing to sit
directly behind [Di Vittorio].” In addition to creating an appearance of “improper
influence or pressure” on Judge Farris, this action “also created an appearance
of an attempt to try and intimidate or pressure the parents’ attorneys.” The
presence of these judges “gave the appearance of trying to send home a
message to defense counsel that Superior Court Judges were personally
involved in opposing their motion and personally siding against them with the
VGAL Program staff attorney who had clearly committed courtroom misconduct.”
Finally, Judge Farris found that the VGAL Program used abusive litigation
tactics against the parents. These included posttrial “document dumps” that
purposefully made information hard to find, the destruction or withholding of
relevant e-mails, and the proffering of false and misleading statements. Perhaps
16 No. 76964-2-1117
most egregiously, VGAL Brook’s entire hard copy file for this dependency
mysteriously “disappeared” from the VGAL Program’s possession during the
posttrial proceedings regarding the VGALs’ misconduct.
In short, based on the above findings, Judge Farris correctly concluded
that “[t]he Superior Court, its direct agents, and its own attorneys, all under the
supervision of the judges repeatedly aligned with and literally became a party
litigating this case against the parents . . . throughout the case.” These
circumstances, which existed before, during, and after the termination trial,
resulted in a tribunal that was biased and violated both parents’ right to due
process and the appearance of fairness doctrine. Therefore, the termination
order must be reversed. Although Judge Small was not a judge seated in
Snohomish County, he heard oral argument on the motions in Snohomish
County and relied on a record generated in that biased tribunal in making his
decisions. For that reason, the orders entered by Judge Small do not escape the
taint of the bias and must be vacated.
The Department argues that the termination order can stand. It contends
that because the superior court’s involvement in litigating against the parents
occurred only during the September 2016 sanctions proceedings, the
appearance of fairness doctrine and the parents’ due process right to an impartial
tribunal were not violated during the termination trial. But that contention ignores
the fact that superior court attorneys assisted the VGAL Program in litigation
against the parents during discovery and during the motions regarding the
VGALs’ misconduct. Because the record establishes the superior court’s
17 No. 76964-2-1/18
attorneys were involved in this litigation well before the sanctions motion, the
Department’s argument fails.
The Department also argues that State v. Perala, 132 Wn. App. 98, 130
P.3d 852 (2006), is instructive. In that case, Grant County Superior Court judges
met to establish a presumptive rate of pay for appointed criminal defenders.
Perala, 132 Wn. App. at 113. The actual rate of pay for each criminal defender
on a particular case was then determined by the trial judge after a hearing.
Perala, 132 Wn. App. at 110. The State filed motions for recusal, arguing that
the judges’ policy establishing the presumptive rate of pay prejudiced the State’s
ability to argue that lower amounts were suitable in the subsequent, case-specific
hearings. Perala, 132 Wn. App. at 109-110. The trial court denied these
motions. Perala, 132 Wn. App. at 110. The Court of Appeals affirmed, holding
that the appearance of fairness was not violated because the State did not
“provide any evidence that demonstrate[d] that the trial court was unwilling to
fairly consider the State’s requests for reduced compensation.” Perala, 132 Wn.
App. at 114.
Here, in contrast to Perala, there was evidence of the superior court’s
bias. Before, during, and after the termination trial, attorneys representing the
superior court aided the VGAL program in litigating against the parents. Indeed,
the bias evidenced here was such that although Judge Earns herself did not
participate in the superior court’s improper acts or show any personal bias, Judge
Farris determined that she was precluded from taking further action in the case.
Therefore, Perala is not persuasive.
18 No. 76964-2-1/19
Because reversal is required, we need not reach many of the alternative
grounds for reversal raised by the parents. But we address the following
arguments because they are either relevant to our instructions on remand or
likely to be raised again on remand.
Recusal
The parents argue that reversal is also necessary because it was
improper for Judge Earns to enter a termination order after she determined that
she must recuse from the case. Although Judge Farris properly decided to
recuse herself under these facts, we conclude that Judge Earns erred in
determining that entering the termination order was a ministerial act.
Where a judge has recused, this court has adopted “a bright line rule”
regarding any subsequent actions: “once a judge has recused, the judge should
take no other action in the case except for the necessary ministerial acts to have
the case transferred to another judge.” Skaciit County v. Waldal, 163 Wn. App.
284, 288, 261 P.3d 164 (2011).
Here, on November 18, 2016, after hearing argument from all parties
regarding the VGAL Program’s recusal motion, Judge Farris orally announced
her recusal. Judge Earns based this determination, in part, on the fact that
superior court attorneys communicated with, aligned with, and assisted the
VGAL’s attorney in the litigation in this case. In February 2017, Judge Farris
heard argument from the parties on whether a termination order could still be
entered given her recusal. Unsurprisingly, Di Vittorio and the Department argued
19 No. 76964-2-1/20
that Judge Farris could enter the order, and the parents and AGAL Buurstra
argued that Judge Farris could not.
On May 17, 2017, Judge Farris entered the recusal order. The same day,
Judge Farris also entered the termination order. In the recusal order, Judge
Farris concluded that entry of the termination order was merely a ministerial act:
entry of the Findings of Fact, Conclusions of Law and Final Order of Termination from the termination trial is a ministerial act under the unique facts of this case that are set forth below. Therefore, final paperwork can enter and it has been signed and is hereby entering contemporaneously with this order.
Judge Farris acknowledged that “[n]ormally signing findings is not a ministerial
act.” But Judge Farris concluded that it was ministerial in this case because the
findings conformed to her prior oral rulings and had already been drafted and
signed by the parties:
[A]ny disputes over the form of the findings and order had already been decided by me, I had very specifically directed the parties exactly how to prepare the findings, and had literally dictated them to a court reporter verbatim. The parties had all already agreed the written findings complied with my order on how to word the final paperwork as shown by their signatures on those findings which signatures were all affixed before the recusal issue was raised or recognized.
But Waldal does not allow a trial judge who has recused herself to perform
just any ministerial act. The bright-line rule allows only “necessary ministerial
acts to have the case transferred to anotherjudge.” Waldal, 163 Wn. App. at 288
(emphasis added). The entry of the termination order was not necessary to have
the case transferred to another judge. Therefore, under Waldal, Judge Farris
erred by entering the termination order after her oral recusal and the termination
order must be reversed.
20 No. 76964-2-1/21
The Department argues that Judge Farris’s signature and entry of the final
order on termination required no exercise of discretion and therefore qualified as
a “ministerial act” under Waldal. Waldal, 163 Wn. App. at 288. We do not read
the bright-light rule in Waldal so broadly. And even if Waldal does allow a
recused judge to perform a ministerial act unrelated to transfer, the entry of the
final order in this case was not ministerial because it required the exercise of
discretion. Regardless of whether the written order conformed to Judge Farris’s
prior oral rulings or whether the parties had already signed the order, Judge
Farris retained discretion to modify that order up until it was signed and entered:
An expressed intention to perform a future act is not the same as performing the act itself. Until final judgment is entered, the trial judge is not bound by a prior expressed intention to rule in a certain manner.
DGHI, Enters. v. Pac. Cities, Inc., 137 Wn.2d 933, 944, 977 P.2d 1231 (1999).
Furthermore,
a trial judge’s oral decision is no more than a verbal expression of his informal opinion at that time. It is necessarily subject to further study and consideration, and may be altered, modified, or completely abandoned. It has no final or binding effect, unless formally incorporated into the findings, conclusions, and judgment.
Ferree v. Doric Co., 62 Wn.2d 561, 566-67, 383 P.2d 900 (1963). For these
reasons, Judge Farris retained and exercised her discretion in abiding by her
prior oral rulings and entering the termination order. Entry of the order was not a
ministerial act.
The Department also relies on State v. Ward, 182 Wn. App. 574, 330 P.3d
203 (2014), for the proposition that judicial action that relies on an oral ruling is
ministerial. In that case, the defendant prepared an order with findings and
21 No. 76964-2-1/22
conclusions related to an earlier suppression hearing. A judge other than the
judge who heard the motion signed the order. Ward, 182 Wn. App. at 583.
Normally, only the judge who hears the evidence has the authority to enter
findings of fact on that evidence. Ward, 182 Wn. App. at 584. But because the
defendant failed to object to the entry of the order by a different judge, the Court
of Appeals held that he waived the issue on appeal. Ward, 182 Wn. App. at 586-
87. The Court of Appeals described the signing of the findings by a different
judge as a “ministerial act” because the findings were consistent with the original
judge’s oral ruling. Ward, 182 Wn. App. at 586. But Ward did not involve recusal
or address whether signing an order is a ministerial act necessary to have the
case transferred to another judge under Waldal. Therefore, it is not persuasive.
Finally, the Department argues that other states allow the entry of findings
of facts and conclusions of law after recusal where the findings and conclusions
are consistent with a prior oral ruling. Fischer v. Knuck, 497 So. 2d 240, 243
(Fla. 1986); In re Tr. by Crawford, 20 Neb. App. 502, 826 N.W.2d 284, 291
(2013); Plaza v. Plaza, 21 So. 3d 181, 182 (Fla. Dist. Ct. App. 2009). Given the
bright-line rule established in Washington under Waldal, we are not persuaded
by this nonbinding out-of-state authority. Reversal is required.
Appointment of Attorney forA.H. The parents argue that A.H.’s right to due process was violated because
the trial court’s decision to strike VGAL Walker’s testimony left A.H. with no one
to protect her interests at trial. Because we have already determined that
reversal is necessary based on the due process violations, we need not reach
22 No. 76964-2-1/23
this argument. But we direct the trial court on remand to appoint a GAL in
addition to an attorney to represent A.H.’s interests.
On remand, in accordance with RCW 13.34.100(1), the trial court must
appoint a GAL to represent A.H. This GAL cannot be a GAL associated with the
VGAL Program. AGAL Buurstra, would be a suitable choice, if she is able to
serve.
Additionally, given the history of this case, we direct the trial court on
remand to appoint an attorney to represent A.H.
The Supreme Court has held that “children have fundamental liberty
interests at stake in termination of parental rights proceedings.” M.S.R., 174
Wn.2d at 20. Although children do not have a blanket right to counsel in
termination proceedings, the law requires that “a GAL must be appointed unless
‘for good cause’ shown the judge concludes it is not necessary.” M.S.R., 174
Wn.2d at 19-20 (quoting RCW 13.34.100(1)). Additionally, RCW 13.34.100(7)(a)
states that “[tjhe court may appoint an attorney to represent the child’s position in
any dependency action on its own initiative, or upon the request of a parent, the
child, a guardian ad litem, a caregiver, or the department.” “In determining
whether counsel is required, courts are to apply the Mathews factors on a case
by-case basis, taking into account the specific interests at risk in each instance,
the additional decisional accuracy that would be afforded by appointing an
attorney, and the government’s interest in not appointing counsel.” In re
Derendency of E.H., 191 Wn.2d 872, 894, 427 P.3d 587 (2018) (citing Mathews
23 No. 76964-2-1/24
v. Eldridqe, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). under
Mathews, due process requires consideration of three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335. In dependency cases,
courts should consider at least the age of the child, whether the child is in legal or physical custody of the State, whether the child’s stated interests are aligned with the GAL’s assessment of the child’s best interest (if a GAL has been appointed) or with another represented party’s desires, whether the child disputes the facts that form a basis for the dependency determination, whether the child presents a complex argument against the State’s proposed action, and the issues that are actually disputed or to be addressed in the hearing.
E.H., 191 Wn.2d at 894. Whether a child is entitled to an attorney under the
Mathews test is a mixed question of law and fact. E.H., 191 Wn.2d at 894-95.
Here, each of the Matthews factors favors the appointment of an attorney
for A.H. First, A.H. has strong private interests that will be affected on remand:
she has the right to be free from unreasonable risks of harm; a right to
reasonable safety; and the right to basic nurturing, including a stable, safe, and
permanent home. M.S.R., 174 Wn.2d at 17. A.H. faces not only the risk of
losing her parents but also of losing relationships with siblings, grandparents,
aunts, uncles, and other family members. M.S.R., 174 Wn.2d at 15. She also
faces the risk of losing her foster parent and the stability and relationships she
24 No. 76964-2-1/25
has developed while living with her foster parent all but four days of her young
life.
Second, the risk of erroneous deprivation is high and thus favors
appointing an attorney for A.H. M.S.R., 174 Wn.2d at 18. Given the evidence of
misconduct on the part of the VGALs and the VGAL Program in this case and the
bias evidenced during the proceedings in the superior court, this termination case
is factually and legally unique. No other party adequately represents the
interests of A.H. in this proceeding because no one’s interests are directly
aligned with hers. A.H. is now six years old and has lived with the same foster
parent since she was a few days old; her interests are not the same as those of
her parents or the Department. And while a GAL would represent what he or she
believes are the best interest of A.H., it is not the GAL’s role to “protect the legal
rights of the child.” M.S.R., 174 Wn.2d at 21. An attorney will do that and more,
including maintaining confidential communications, giving legal advice bound by
an ethical duty to A.H., explaining A.H.’s rights to her, facilitating and expediting
the resolution of this proceeding, and effectuating the court’s orders. M.S.R., 174
Wn.2d at 21. Additionally, A.H. may now be able to communicate her interests to
an attorney in a way that was not possible during the first trial when she was only
two years old.
Finally, the Department does not have a strong interest in denying
representation to A.H. While the Department does have a strong interest in
reducing the fiscal costs of the proceeding, the costs and procedural burden of
appointing an attorney to represent A.H. do not outweigh A.H.’s interests.
25 No. 76964-2-1/26
Furthermore, the Department’s other interests, such as the welfare of A.H. and
obtaining an accurate and just decision, weigh in favor of appointing an attorney
forA.H. M.S.R., 174 Wn.2d at 18.
Here, an attorney will provide guidance that is long overdue in a case that
has languished for years in the superior court and now on appeal. For these
reasons, we direct that an attorney be appointed for A.H. on remand.
We also note that RCW 13.34.100(1) requires a trial court to appoint a
GAL and states that the requirement is “deemed satisfied if the child is
represented by an independent attorney in the proceedings.” Therefore, in
addition to the appointment of a GAL, the appointment of an attorney to
represent A.H. on remand will also ensure the requirements of
RCW 13.34.100(1) are satisfied.
Challenge to GAL Best Interests Statute Hayes argues that the “best interests” standard in RCW 13.34.105(1)(e)
and (f) violates due process because it is overly vague and thus permits GALs to
pursue their implicit biases in determining what is best for a child. We disagree.
“In any vagueness challenge, the first step is to determine if the statute in
question is to be examined as applied to the particular case or to be reviewed on
its face.” City of Spokane v. Doucjlass, 115 Wn.2d 171, 181-82, 795 P.2d 693
(1990). A vagueness challenge to a statute that does not involve First
Amendment rights must be decided as applied to the particular facts of a case.
In reWelfare of H.S., 94Wn. App. 511, 524-25, 973 P.2d 474 (1999). Where a
vagueness challenge to a statute does not involve First Amendment interests, a
26 No. 76964-2-1/27
facial challenge to the statute will not be considered. Douglass, 115 Wn.2d at
182.
RCW 13.34.105(1) outlines the duties of a GAL. Sections (e) and (f)
include references to the “best interests of the child” and state:
(e) Court-appointed special advocates and guardians ad litem may make recommendations based upon an independent investigation regarding the best interests of the child, which the court may consider and weigh in conjunction with the recommendations of all of the parties; (f) To represent and be an advocate for the best interests of the child.
RCW 13.34.105(1) (emphasis added). This statute does not involve the First
Amendment. Therefore, only an as-applied challenge may be considered.
Statutes are presumed constitutional, and “the challenger of a statute must prove
beyond a reasonable doubt that the statute is unconstitutional.” In re Welfare of
A.W., 182 Wn.2d 689, 701, 344 P.3d 1186 (2015).
The “best interests of the child” is not defined in chapter 13.34 RCW. ~
RCW 13.34.030. But the Washington Supreme Court has considered this phrase
generally and concluded that “[w]ere the legislature to define the terms in
question more precisely than it has already done, the result might well be an
inflexibility that deterred rather than promoted the pursuit of the child’s best
interests.” In reWelfare ofAschauer, 93 Wn.2d 689, 697-98 n.5, 611 P.2d 1245
(1980). And because every parental termination proceeding presents its own
“peculiar facts and circumstances,” criteria for establishing the best interests of
the child are “necessarily absent.” Aschauer, 93 Wn.2d at 697-98 n.5.
27 No. 76964-2-1/28
Here, Hayes’ as-applied challenge to RCW 13.34.105(1) rests on the
argument that VGAL Brook’s actions throughout the dependency, which reflected
her opinion that it was in the best interest of A.H., who is black, to be adopted by
her foster mother, who is white, were unconstitutionally affected by her implicit
racial biases. As the Supreme Court has recognized,
racism itself has changed. it is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them. Racism now lives not in the open but beneath the surface—in our institutions and our subconscious thought processes—because we suppress it and because we create it anew through cognitive processes that have nothing to do with racial animus.
State v. Saintcalle, 178 Wn.2d 34, 46, 309 P.3d 326 (2013) (footnote omitted)
abrogated on other grounds ~y City of Seattle v. Erickson, 188 Wn.2d 721, 398
P.3d 1124 (2017).
Hayes cannot show that the term “best interests of the child” in
RCW 13.34.105(1) is unconstitutionally vague as applied to this case. VGAL
Brook was not responsible for making a final and binding determination as to what
was in A.H.’s best interests. VGAL Brooke’s role was to report recommendations
and information to the trial court. Only the trial court is tasked with deciding what
is in a child’s best interests. RCW 13.34.190(1) (“[T]he court may enter an order
terminating all parental rights to a child only if the court finds that. . . (b) [sjuch an
order is in the best interests of the child.”). Because VGAL Brook did not make
the final determination about what was in A.H.’s best interests, there is no risk of
‘arbitrary enforcement” of her opinion. See State v. Irwin, 191 Wn. App. 644, 655,
364 P.3d 830 (2015) (holding that a community custody condition was
28 No. 76964-2-1129
unconstitutionally vague where the community custody officer’s discretion would
result in “arbitrary enforcement”). Hayes has not met his burden to show that
RCW 13.34.105(1) is unconstitutional as applied here.
For the reasons discussed, we reverse the termination order and direct
the trial court to vacate the CR 59 and 60 order and the sanctions order. We
remand for a new trial in a county other than Snohomish County. We order that
the retrial be set initially in King County Superior Court as Aradon’s attorney
indicated that King County, an adjoining county, would be a convenient forum.
Thereafter, any party—should they choose to do so—may file a motion to change
venue to any county other than Snohomish County and may renew the motion for
sanctions, On remand, the trial court is directed to vacate the termination order,
the CR 59 and 60 order, and the sanctions order and appoint both a GAL and an
attorney forA.H.
WE CONCUR:
—4
/ a