IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of: No. 84876-3-I (consolidated with N.M.L.H. and M.I.S., No. 84877-1-I)
Minor Children. DIVISION ONE
UNPUBLISHED OPINION
CHUNG, J. — C.M.’s parental rights were terminated in December 2022.
She claims her right to procedural due process was violated when the court
denied her motion to continue her trial held via Zoom videoconferencing 1 (Zoom)
after she suffered a second trimester miscarriage the weekend before trial
began. The trial court denied C.M.’s motion to continue, but provided procedural
safeguards by delaying testimony for one week and limiting the first day of trial to
preliminary matters and opening arguments. C.M. attended the trial, including the
first day, by calling in on her phone, as was her stated preference. We hold that
C.M.’s right to procedural due process was not violated by the court’s denial of
the motion to continue.
Amici raise additional arguments of bias and failure to provide an impartial
tribunal, as well as failure to provide a meaningful opportunity to participate,
based primarily on the manner of the trial court’s questioning of C.M. to assess
1 Zoom is a cloud-based videoconferencing software platform. No. 84876-3-I (consol. with No. 84877-1-I)/2
her credibility regarding the need for a trial continuance. However, while we
agree that the manner and scope of questioning went beyond what was
necessary, because C.M. did not raise these same claims, we cannot consider
them as a basis for vacating the termination of C.M.’s parental rights.
We affirm.
FACTS
N.M.L.H. and M.I.S., the daughters of C.M., were adjudicated dependent
as to their mother in June 2021. The two girls have lived with a foster parent
since 2019. The Department of Children, Youth, and Families (Department)
petitioned for termination in April 2022.
C.M.’s termination trial was scheduled to begin at 10 a.m. on Monday,
November 21, 2022. Because of COVID-19 restrictions, the court was using
Zoom. The court noticed that C.M. was not on the Zoom conference, and her
counsel responded, “Your Honor, my client is not present. I’m going to have a
motion.”
Counsel explained C.M. had been hospitalized over the weekend for a
placental abruption, 2 had had a surgical procedure, and the baby did not survive.
Counsel reported that earlier that morning, C.M. told him that “she is in a lot of
pain and she is still bleeding and that the doctor recommended that she take it
easy.” Counsel said that C.M. had discharge papers from the hospital that she
“had not had a chance to go over completely” and that counsel did not yet have
2 Placental abruption is the complete or partial separation of the placenta before delivery,
and is one cause of a miscarriage. Br. of Amici 6 (citing Minna Tikkanen, Placental Abruption: Epidemiology, Risk Factors and Consequences, 90(2) Acta Obstetricia et Gynecologica Scandinavica 140 (2011)).
2 No. 84876-3-I (consol. with No. 84877-1-I)/3
medical records, but believed she was “right now” getting medicine from the
pharmacy. Counsel asked the court for “a one to two week continuance.”
In response, the Department directed the court to the dependency order,
specifically, “findings number 9, 19, 20, 22, and 27,” which it described as
“relat[ing] to repeated delays throughout the course of [the dependency]
proceeding by the mother.” The Department further stated,
I hate to suggest that I’m skeptical about what the mother is representing, but I am. And for that reason, I would certainly ask that the court not continue the trial until (1) there’s a conversation with the mother where she reports to this court under oath the representation she’s making, or [(2)] the court has medical documentation to substantiate the basis for the continuance. And that’s really based on the Department’s history with the mother, and specifically, our history during [dependency] trial proceedings in 2021, which were delayed for months over a variety of issues. I know the court’s read that order. There are repeat findings that the mother is not credible, and so, unfortunately, the Department cannot take her at face value, and neither should the court.
The court asked the Department if it could seek “up-to-date information”
from its social worker, and the Department assented. Upon questioning by the
court, the social worker testified under oath that she had not had any contact with
the mother in the last week 3 and relied on the mother’s lawyer to provide the
mother with information about the trial. However, the social worker confirmed that
the Department had reached out, through its counsel, to the mother to assist her
in participating in the trial by offering a ride to the courthouse and reminding her
that she still had a Department tablet computer she could use to participate
remotely.
3 The social worker also confirmed that the mother had threatened her with seeking an
anti-harassment order if the social worker continued to contact her.
3 No. 84876-3-I (consol. with No. 84877-1-I)/4
Counsel for the court-appointed special advocate (CASA) concurred with
the Department that given the history of delays in the past, if nothing else, the
mother should be able to appear long enough “to verify her situation” and provide
a time when the documents would be ready to provide to the court.
After C.M.’s counsel agreed that the court could review the dependency order for
purposes of deciding the motion for continuance, the court read into the record the
portions of the order that it was considering. These findings included the following:
19. The court finds that the mother persistently—either through a lack of preparation or intentionally—caused hours of delay in trial. The Department and the court made extraordinary efforts to address any and all technology issues by providing the mother with a hotel room, the tablet, and personal assistance. Mother insisted on staying at a particular hotel . . . . The Department honored this request. Mother at one point insisted that the trial recess prior to the lunch hour so she could go get McDonald’s. Mother created additional delay by getting kicked out of her hotel room by smoking in the room. Mother lied to the court when, at one point, hotel staff came to the mother’s room during the trial to address complaints about her smoking. Mother told the court that it was merely housekeeping . . . . In fact, hotel staff were informing mother that she would need to leave the hotel due to her smoking. The Department called the hotel manager . . . [who] credibly testified that the mother was caught smoking in her hotel room and was told she could not remain in the hotel beyond the current checkout date . . . [and] that the Department would have to pay $250 to clean the hotel room. . . .
20. The Department sent social worker Jennie Webb to the hotel— nearly 1.5 hours round trip—to assist [C.M.] in getting the tablet to work and to ensure there were no technical problems with the tablet. This again created more delay as mother refused to meet Ms. Webb in her hotel room, the lobby, and then refused to allow Ms. Webb to see or handle the tablet at all [because] [t]he mother had recently been hospitalized for COVID-19 . . . . Ms. Webb was masked and wearing latex gloves at the time.
21. The Department made extensive efforts to facilitate the mother’s participation in trial. These included months of phone
4 No. 84876-3-I (consol. with No. 84877-1-I)/5
plans, purchasing of several [nights] in the hotel for participation in trial, provision of a tablet so mother could join trial by video, and sending the social worker supervisor to the hotel to assist mother directly with the table[t] provided for trial.
22. Mother consistently obstructed these [efforts], alleging problems or barriers to her participation, and ultimately lied to the court about the issues preventing her participation in trial. Taken as a whole, the mother’s testimony lacked credibility.
After reading these findings from the dependency order into the record, the court
concluded, “From those findings, the court does look with skepticism upon the
report to the court.”
Counsel for C.M. acknowledged the court’s prior findings “were justified in
frustration, [for] the delays,” but that the only other time the mother requested a
continuance during the dependency proceedings was for when she was
hospitalized with COVID-19. C.M.’s counsel stated that at the time, there “was a
lot of skepticism,” but he noted the mother had provided a positive COVID-19 test
and a hospital arm band as evidence; according to counsel, the court found this
evidence persuasive and continued the proceeding. In response, the Department
noted that the court had taken counsel’s representation that the mother was
hospitalized for COVID-19 without further documentation and requested that the
court now require medical records and that they be “scrutinized for authenticity.”
After further discussion, the parties agreed to recess so C.M.’s counsel
could obtain “whatever medical records she has,” such as discharge papers, as
well as a release of information for the hospital to provide records to the
Department, limited to those showing “why she’s representing she can’t be in
court.” The court reconvened when C.M. was able to call in to the proceeding on
5 No. 84876-3-I (consol. with No. 84877-1-I)/6
Zoom, at which point it was 11:25 a.m. The court told C.M. she was in open court
at her termination trial. The court also informed C.M. that her attorney had asked
for a continuance and the court would like for her to testify so the court could “get
some information from [her] about what’s been going on.” C.M. agreed to testify,
and the court swore her in.
The court began by posing its own questions to C.M. C.M. testified that
she “started bleeding a whole lot and having very, very bad pain, so I called the
ambulance” on Saturday and went to Saint Francis hospital. She stated she was
in the hospital for a day or a day-and-a-half, she had discharge papers, and she
had sent photos of the paperwork to her attorney. C.M. testified that the
discharge papers told her to be on “bed rest” and recommended she “stay out of
work for a week.” The court asked how long she was supposed to be on bed rest,
and C.M. answered “two weeks.” C.M. testified she had been prescribed Tylenol
as pain medication, though it was not helping. She confirmed that she sent the
discharge notes to her attorney and discussed signing a release of hospital
records from the last weekend, but had not been able to sign it.
The court then allowed the Department to question C.M. The Department
inquired about the discharge paperwork; C.M. confirmed the papers stated she
should return to work in two weeks. Asked about when she was able to
communicate with her attorney, C.M. testified she had been discharged the
evening prior but had not contacted her attorney until that morning.
Counsel for the CASA then examined C.M. Counsel asked why C.M. did
not go to the emergency facility next door to the hotel where she was staying,
6 No. 84876-3-I (consol. with No. 84877-1-I)/7
and she responded that it did not have an emergency room. C.M. testified that in
addition to Tylenol, she received other medications at the hospital and, going
forward, antibiotics as well. The CASA attorney also asked about the duration
and conditions of bed rest, and C.M. said she was supposed to be on 100
percent bed rest for two weeks. Asked where the social worker could find her if
she needed to contact her in person in the next two weeks, C.M. said on that
day, she would still be at the motel but was “not willing to say” which room
number. The court then asked why she was not willing, and if the social worker
came to bring her a document, how she would meet with C.M. Eventually, C.M.
provided her room number.
The court then asked C.M., “Were you planning to come to trial today
before this happened?” She answered, “Via Zoom, yes, ma’am.” Her counsel
asked C.M. if she could testify. She answered she did not think she could that
day because “I don’t think that I’ll be able to put my attention into the trial with the
pain.”
Her counsel then asked, “[D]o you think that in, you know, in
approximately a week you would be ready to testify”? C.M. answered, “Yes.”
Counsel reiterated, “In a week?” C.M. answered: “Yes.”
The court asked C.M. if she learned from the hospital what had happened.
She answered that she “was diagnosed with . . . a placenta abruption.” The court
asked, “[H]ow far along?” C.M. answered, “17 weeks.” The court asked if she
was still pregnant or if the pregnancy was lost. C.M. answered that she had “lost
the pregnancy.” The court said it was “sorry for [her] loss.” After additional
7 No. 84876-3-I (consol. with No. 84877-1-I)/8
questioning by the Department and C.M.’s counsel, the court thanked C.M. for
providing testimony and asked her to stay on the call while court was in session
that day.
The court then heard further argument from the parties regarding the
motion for continuance. C.M.’s counsel renewed her motion “to proceed next
Monday. So I would ask that the court recess until Monday.” The Department
stated that while the mother’s testimony was “very sad if it is true,” it did not
relieve the need for medical documentation. Both the Department and the CASA
opposed the court granting a continuance without “credible evidence to continue
trial.”
The court gave the parties instructions for its lunch hour recess. First, it
wanted the discharge paperwork in its possession. Second, the court instructed
the parties to check their calendars through the next week and the following
Monday for the possibility of “an expanded trial day of 8:00 to noon and 1:00 to
4:30 to try to get this case tried.”
The court then asked C.M. if she had the computer that the Department
gave her or another computer she could use instead of using the phone to
connect to trial. C.M. answered, “I’ll be using this phone.” The court said, “Okay.
So you’d rather just use the phone rather than something with video?” C.M.
answered she could use the phone’s video. The court said, “I will assume that
you are able to connect to the Zoom every time we start trial again. And so if
you’re not here, I will go ahead without you. Do you understand that?” C.M.
answered, “That’s fine.”
8 No. 84876-3-I (consol. with No. 84877-1-I)/9
After a recess, the court described the documentation it had received
related to the motion for continuance: photographs of a document titled “After
Visit Summary” with the mother’s name. The document indicated there were 13
pages, but according to the court, C.M. had photographed and sent only three
pages. 4
The court then proceeded to make findings “pursuant to Mathews v.
Eldridge.” 5 The court found the mother “has a significant private interest in the
care and custody of her children and of maintaining her parental rights.” It found
that “[t]he State has similar interests [to the children] in the children’s welfare and
has an interest in quickly resolving parental termination cases, again, to keep the
children in its custody from legal limbo.”
As to “the risk of an erroneous deprivation,” the court found the mother
“always intended to attend trial by remote means and had no intent to attend trial
in person.” The court stated: “She always intended to attend trial by phoning in
with her phone as she’s done today, stating that was her preferred way to attend
The court continued, “I do find that the mother experienced a medical
event that led to the termination or miscarriage of her pregnancy. She was
4 The court marked the documents it received but did not admit them into the record. As
these documents were referenced in the Department’s briefing, we directed the Department to supplement the appellate record. In response, the Department supplemented the record with Exhibits 301 and 302, which are photographs of pages of C.M.’s medical records that the court reviewed, along with a motion to seal. The official juvenile court file, not related to the commission of juvenile offenses, such as dependency and termination proceedings, is “presumptively sealed” under RCW 13.50.100. In re the Welfare of O.C., 27 Wn. App. 2d 671, 682, 533 P.3d 159 (2023). Pursuant to GR 15(c)(2)(A) and RCW 13.50.100, we grant the Department’s motion to seal the exhibits. 5 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
9 No. 84876-3-I (consol. with No. 84877-1-I)/10
released from the hospital yesterday. Her discharge summary states that it was
printed at 11:51 a.m., and I find that she was released at or about that time.”6
The court found that “the only medication she’s been prescribed is Tylenol and
an antibiotic” and “she was coherent testifying today and by her tone and manner
of testifying suggested that while she might be tired, she’s not experiencing any
difficulty tracking information or participating.”
The court stated, “The Department is not calling the mother to testify. That
means the earliest she will need to testify is sometime next week or the following
week.” It noted that her “attorney agreed that she will be able to testify by a week
from today, next Monday,” and “[t]he mother is represented by a capable and
engaged attorney who has and continues to zealously and effectively represent
her.” The court further found that the mother will “be able to hear all testimony, to
talk to her attorney at any time about the testimony, and to testify once she’s
feeling stronger if she chooses to testify.” Finally, the court found that “[h]er
medical condition has not changed how [the mother’s attendance at trial] will be
handled. She always intended to appear by remote means and by audio only.”
The court concluded, “Therefore, I find no risk of erroneous deprivation by
denying a continuance and allowing the trial to proceed.” However, “in an
abundance of caution,” the court decided “it may serve us well to handle all . . .
preliminary matters today, and to recess until Monday.” The court asked the
parties if there was “anything you’d like me to address before [it did] things and
the way [it was] planning to do them.” The parties answered, “no.” The court then
6 As to the time of release, the court also stated, “Without substantiation, I do not credit
the mother’s testimony that she was released when it was dark outside yesterday.”
10 No. 84876-3-I (consol. with No. 84877-1-I)/11
proceeded with preliminary matters. It denied the Department’s ER 904 motion to
admit all its evidence “en masse.” The parties gave short opening statements,
and then the court addressed the mother:
So I know, [C.M.], you’re here. I wish you a speedy recovery. I imagine that what you just went through was really traumatic and sad and hard. I want you to know that I have empathy for you and I do hope that the next week will bring you some peace and also some rest. We’ll be starting back up at 8:00 a.m. a week from today, Monday. And we’ll start right on time. So if you can again dial in either using this phone, or if you want to use the tablet instead, that would be fine too. But we won’t wait because we do need to get this case resolved. With that, we will be in recess until November 28th, Monday, at 8:00 am. We’re in recess.
Trial resumed on Monday, November 28, at 8 a.m. When the court
realized C.M. was not present, her counsel explained that was his fault, and the
court delayed the start of trial until 8:24 a.m. C.M. joined a short while later during
the first witness’s testimony.
Trial continued the next day, Tuesday, November 29. The court gave C.M.
and her counsel time to speak privately to discuss whether C.M. would testify.
C.M. decided to testify, and the court set her testimony to begin at 11:00 a.m.
When the court reconvened at 11:01 a.m., C.M. was not present. C.M.’s counsel
told the court that C.M. had asked for a few minutes at the end of their
preparation during the recess. The court allowed a recess until 11:15 a.m. At
11:15 a.m., C.M. still had not joined via Zoom. The court went into a “stand by”
recess, where the court had its Zoom camera on to monitor when C.M. joined, at
which point trial would resume. C.M. joined Zoom via telephone at 11:17 a.m.
and testified.
11 No. 84876-3-I (consol. with No. 84877-1-I)/12
Trial concluded on Wednesday, November 30. C.M. called in during the
Department’s closing argument. The court terminated C.M.’s parental rights as to
both her daughters. The court’s written findings accompanying its termination
order stated that “the court has not relied on [C.M.’s] testimony” because her
“testimony was unreliable at her dependency trial and was in this trial at times
internally inconsistent and inconsistent with other credible evidence.” C.M. timely
appeals.
DISCUSSION
I. Procedural Due Process
C.M. claims the court violated her constitutional right to procedural due
process by not granting her motion to continue. She argues her fundamental right
to parent, “coupled with the risk of an erroneous deprivation of this right by
forcing Ms. M to proceed with trial despite her medical condition,” outweighed the
Department’s interest in avoiding a brief delay.
Procedural due process requires the government to meet certain
constitutional minimum standards before it may lawfully make decisions that
affect an individual’s liberty interests. In re the Welfare of M.B., 195 Wn.2d 859,
867, 467 P.3d 969 (2020) (citing Mathews, 424 U.S. at 332). Parents have a
fundamental liberty interest in the care and custody of their children, and so when
the State seeks to terminate parental rights, “ ‘it must provide the parents with
fundamentally fair procedures.’ ” Id. (quoting Santosky v. Kramer, 455 U.S. 745,
753-54, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (plurality opinion)). 7
7 The Department suggests that the mother “effectively waived the issue” by not raising
below any other difficulties and by failing to argue here a manifest error affecting a constitutional
12 No. 84876-3-I (consol. with No. 84877-1-I)/13
Due process protections include a strict burden of proof, the right to notice
and an opportunity to be heard and to defend, and the right to the assistance of
counsel. Id. In a parental rights termination trial, to determine whether alternative
procedures satisfy due process, we use the balancing test set forth in Mathews.
Id. at 868 (citing Santosky, 455 U.S. at 754). Under this test, the court balances
(1) the private interests affected, (2) the risk of error created by the procedures
used and the probable value of any additional procedural safeguards, and (3) the
State’s interest in using the challenged procedure. Id. (citing Mathews, 424 U.S.
at 335). We review alleged violations of due process de novo. Id. at 867.
For example, in In re the Welfare of L.R., the mother of two dependent
children was incarcerated but wanted to attend her termination trial in person.
180 Wn. App. 717, 720, 324 P.3d 737 (2014). While the Department did not
contest the mother’s motion for a two-week continuance to arrange for
transportation, the court denied the motion because “there was no guarantee that
[the mother]’s transport request could be arranged in a timely manner or even
accommodated at all.” Id. at 721. The mother then attempted to attend trial by
phone. Id. When her counsel could not reach the mother’s corrections officer so
she could call in, the court denied mother’s counsel’s objection to proceeding
with trial. Id. The court proceeded with trial that day and heard testimony from the
right under RAP 2.5(a)(3). But “[i]t is consistent with RAP 2.5(a) for a party to raise the issue of denial of procedural due process in a civil case at the appellate level for the first time.” Conner v. Universal Utils., 105 Wn.2d 168, 171, 712 P.2d 849 (1986); cf. In re the Det. of M.S., 18 Wn. App. 2d 651, 656-57, 492 P.3d 882 (2021) (declining review under RAP 2.5(a)(3) where the appellant “fail[ed] to undertake the Mathews balancing test at all”). As a termination trial involves fundamental liberty interests, C.M. has alleged an error of constitutional magnitude and has undertaken the Mathews balancing test to establish manifest error.
13 No. 84876-3-I (consol. with No. 84877-1-I)/14
Department’s social worker. Id. at 722. The mother was able to call in for the last
two days of trial. Id. The court terminated the mother’s parental rights. Id.
We held in L.R. that the mother’s due process rights were not violated
because, while the mother “had a strong interest in attending, . . . she missed
only one day of a three-day hearing,” and the Department “had a compelling
interest in not delaying the proceedings any further.” Id. at 727. We allowed that
“the better practice may have been to continue the trial to allow the parent to
attend telephonically”; nevertheless, because the mother was represented and
cross-examined the case worker who testified when the mother was not present,
the mother attended trial over the phone the remaining two days, and the court
allowed the mother to recall the case worker, the court had employed “sufficient
procedural safeguards” to ensure the mother’s procedural due process rights
were not violated. Id. at 726, 728.
In M.B., M.B.’s father, N.B., learned he was a father while he was
incarcerated. 195 Wn.2d at 863. The father expressed his “strong desire to be
present” for his termination trial, which was continued four times from April to
September 2018. Id. at 864. When the father was unable to arrange for transport,
the court continued the trial to the next week and signed a transport order. Id. at
865. Nonetheless, the Department of Corrections (DOC) did not transport the
father for the first day of trial. Id. The father did not object to the court’s plan to
begin trial but to wait to take testimony from the principal witnesses until he was
present. Id. The next week, DOC again failed to transport the father. Id. The court
decided to take the father’s testimony over the phone, and that same day, the
14 No. 84876-3-I (consol. with No. 84877-1-I)/15
court heard testimony from the Department’s social worker, corrections officers,
and a psychologist who had examined the father. Id. The father’s counsel cross-
examined each witness. Id. at 866. The father was able to phone in and testify on
the trial’s final day. Id. At the direction of the court, the father hung up after
testifying and did not have an opportunity to consult with his counsel. Id. When
the court reconvened for closing argument in the afternoon, the father was not on
the phone. Id. The court terminated the father’s rights, and this court affirmed. Id.
Our Supreme Court reversed and remanded for a new trial, reasoning,
“On balance, the State’s interest in avoiding a relatively minimal delay did not
outweigh N.B.’s fundamental interest in maintaining his relationship with M.B.
and the risk of error that arose from proceeding in his absence.” Id. at 876, 878.
While an incarcerated parent does not have an absolute right to appear in
person, such a parent “must be given a meaningful opportunity to be heard and
defend though alternative procedures.” Id. at 868. The court distinguished L.R., in
which “the mother was represented by counsel to defend her when she was not
present, was able to privately consult with counsel between witnesses when she
was, and was able to recall the single witness she missed,” whereas the father in
M.B. “missed essentially the entire presentation of the State’s evidence and was
afforded no alternative means to review that evidence and contribute to his
defense.” Id. at 875.
We thus examine the Mathews factors and the facts in this case. To
determine whether C.M. was deprived of procedural due process, we balance the
mother’s interest, the risk of an erroneous deprivation through the procedures
15 No. 84876-3-I (consol. with No. 84877-1-I)/16
used and any procedural safeguards, and the State’s interest in the procedures
used and any burden additional safeguards would have imposed.
A. The Mother’s Interest
The first Mathews factor is the “nature and weight of the private interests
affected by the challenged government action.” M.B., 195 Wn.2d at 868 (citing
Matthews, 424 U.S. at 335). C.M. argues her interest in parenting her children is
“fundamental,” and the Department does not argue to the contrary. We agree.
The private interest here, the right to parent, “ ‘is perhaps the oldest of the
fundamental liberty interests recognized by [the United States Supreme] Court.’ ”
M.B., 195 Wn.2d at 868 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000) (plurality opinion)). This interest “ ‘does not
evaporate simply because [a parent has] . . . lost temporary custody of their child
to the State.’ ” Id. (quoting Santosky, 455 U.S. at 753). Termination severs that
fundamental liberty. Id. Here, “[b]ecause of the tremendous stakes, ‘[a] parent’s
interest in the accuracy and justice of the decision’ is ‘commanding.’ ” Id. (quoting
Santosky, 455 U.S. at 759 (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,
27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981))). Moreover, “[u]ntil the State proves
parental unfitness, a child shares their parent’s interest in an accurate and just
decision. M.B., 195 Wn.2d at 869. Together, “[t]hese private interests are
enormous and weigh in favor of any reasonable error-reducing procedure.” Id.
B. The Risk of an Erroneous Deprivation
Next, we evaluate the risk of erroneous deprivation of the interest at stake
through the procedures used and the probable value, if any, of additional
16 No. 84876-3-I (consol. with No. 84877-1-I)/17
safeguards. M.B., 195 Wn.2d at 869. The mother argues the additional safeguard
she requested, a continuance “of up to two weeks,” “would have eliminated” the
risk of an erroneous deprivation.
Contrary to the State’s assertion that the mother’s motion to continue was
not denied, the court unambiguously denied the mother’s motion. 8 It stated it
found “no risk of erroneous deprivation by denying a continuance and allowing
the trial to proceed.”
C.M. initially requested a one- to two-week continuance. She testified that
her doctors told her to rest in bed for two weeks. Nonetheless, when asked by
her counsel, “[e]ven though you may be on bed rest, do you think that . . . in
approximately a week you would be ready to testify,” C.M. answered, “Yes.”
When she renewed her motion, it was “to proceed next Monday. So I would ask
that the court recess until Monday.”
The court denied the motion, but it arranged, “in an abundance of caution,”
to recess her trial for a week, “until Monday,” after hearing preliminary matters
that day. Before proceeding that day, the court ensured C.M. would be present
on the phone as she preferred, that she could confer with counsel, and that she
would not be required to testify that day. The court asked if any party objected to
proceeding “the way [it was] planning to do.” C.M. did not object.
Here, the one-week continuance C.M. requested, “until Monday,” would
have provided some additional safeguard because it would have allowed her to
8 The Department argues in the alternative that the court did not abuse its discretion by
denying her motion, because the mother “obtained the bulk of the process she wanted, a one- week continuance.” But the abuse of discretion standard does not apply to C.M.’s procedural due process claim.
17 No. 84876-3-I (consol. with No. 84877-1-I)/18
rest and further recover from the placental abruption she suffered. But when
directly asked by the court if she objected to the court’s plan to proceed that day
with preliminary matters, with her attending by phone, C.M. did not object. And
the court ensured C.M.’s testimony was not required that first day, Monday,
November 21. It also ensured C.M. knew how to confer with her counsel. Unlike
the mother in L.R. or the father in M.B., in the present case, C.M. was present via
phone each day for her termination trial. Unlike the court in M.B., the court in the
present case took care to ensure the mother knew how to confer with her
counsel while appearing by phone. We thus conclude that the probable value of
the additional safeguard the mother wanted, a complete continuance and
cessation of trial proceedings “to [the] next Monday,” was low.
C.M. argues she was in “no condition to participate effectively in the rigors
of a trial” after she experienced “a major medical event,” and the court “created a
risk of an erroneous deprivation of her parental rights” by “[f]orcing her to
proceed with trial.” She argues the risk “is borne out by the record” because she
“appeared for trial telephonically” and periodically “disengaged” from the
proceedings. She cites M.B. for the proposition that in-person, “nuanced
communication” is particularly important in a termination trial because the
Department is “already advantaged” and the “outcome largely turns on subjective
standards.” 195 Wn.2d at 871.
But C.M. never intended to appear at her termination trial in person. It was
her plan, from before her hospitalization, to appear “via Zoom.” The court asked
C.M. exactly this question: “Before this happened, were you planning on
18 No. 84876-3-I (consol. with No. 84877-1-I)/19
attending your trial either in person or via Zoom?” C.M. answered: “Via Zoom,
yes, ma’am.” And C.M. kept to her plan after trial resumed the next Monday,
November 28. The following day, November 29, C.M. testified by phone over
Zoom. Here, C.M. is not like either the mother in L.R. or the father in M.B. who
wanted to appear in person. Unlike the mother in L.R., who called in for two of
the three days of her trial, C.M. called in each day for her termination trial, as was
her preference. And unlike the father in M.B., C.M. used Zoom breakout rooms to
confer privately with her counsel during her trial. A parent’s failure to in fact
engage—i.e., if the parent has the means to engage but does not exercise
them—does not establish procedural error. 9 Thus, we conclude that the
procedure used, C.M. calling in by phone, did not increase the risk of an
erroneous deprivation compared to the procedure desired, a continuance, after
which C.M. would still have participated by phone because that was her stated
preference.
C. The Department’s Interest
Finally, we must consider the Department’s interest in the procedures
used and the burdens that additional safeguards would entail. M.B., 195 Wn.2d
at 875. C.M. argues that the “minimal delay” she requested and the fact that her
daughters were already in “the same pre-adoptive home” where they had been
9 Amici argue that the court increased the likelihood C.M. would disengage and thus
denied her a meaningful opportunity to participate. They argue that only if C.M.’s motion for a continuance had been granted would she not assume that “her further participation was futile.” But the record does not show C.M. disengaged, and whether she would have been more engaged had her request been granted is a matter of speculation.
19 No. 84876-3-I (consol. with No. 84877-1-I)/20
for the last two years indicate that it is “unclear” how the additional safeguard she
wanted would have been “especially harmful” to the Department.
The State has an important interest in the welfare of a child in its custody.
M.B., 195 Wn.2d at 875. An unwarranted delay in finality could potentially
damage a child’s chance for permanency and stability. See RCW 13.34.020
(declaring a child’s interest in a speedy resolution of dependency and termination
proceedings). Children kept in “ ‘legal limbo’ ” suffer much “ ‘mental and
emotional strain.’ ” M.B., 195 Wn.2d at 875 (quoting In re the Dependency of
M.H.P., 184 Wn.2d 741, 762, 364 P.3d 94 (2015)). “When the rights of basic
nurture, physical and mental health, and safety of the child and the legal rights of
the parents are in conflict, the rights and safety of the child should prevail.” RCW
13.34.020. Here, we conclude the Department had an important interest in
furthering N.M.L.H.’s and M.I.S.’s permanency by proceeding with the
termination trial.
D. Balancing the Mathews Factors
C.M.’s interest in parenting her daughters is fundamental, yet still subject
to balancing under Mathews. The risk that the court’s decision to deny C.M.’s
motion for a one-week continuance erroneously deprived her of her right to
parent her daughters is low because she was present on the phone, per her
preference, while her counsel argued preliminary matters and during short
opening statements for two hours total on the first day of trial. The continuance
C.M. requested until the following Monday would provide little additional
20 No. 84876-3-I (consol. with No. 84877-1-I)/21
procedural safeguard because the court already rearranged its schedule to
recess her trial until that time.
Further, though an additional week’s delay would have been a minimal
burden, the Department had an important interest in the permanency of C.M.’s
daughters’ placement. We therefore conclude C.M.’s due process rights were not
violated when the trial court denied her motion to continue, addressed
preliminary matters and heard only opening statements on the first day, then
recessed her trial until the next Monday as an additional safeguard, and the
mother continued to attend trial remotely by phone, as was her preference.
II. Bias and Due Process Right to Fair Tribunal
C.M. and amici curiae 10 make additional arguments based on racial bias.
Citing Henderson v. Thompson, 200 Wn.2d 417, 437, 518 P.3d 1011 (2022),
cert. denied, 143 S. Ct. 2412, 216 L. Ed. 2d 1276 (2023), C.M. argues that
because she is a Black woman, the court subjected her to “extensive and
invasive questioning” that “played on dangerous tropes that Black people, and
Black women in particular, are less susceptible to pain and tend to exaggerate
their symptoms.”11 She argues that the court “seriously erred in concluding [C.M.]
10 Amici are Dorothy Roberts; Legal Voice; Birthing Cultural Rigor, LLC; Cynthia Soohoo;
Ancient Song; Reframe Health & Justice; If/When/How: Lawyering for Reproductive Justice; Crumiller, P.C.; Elephant Circle; Mishka Terplan; Bobbie Butts; Kristyn Brandi; Pregnancy Justice; Ivana Thompson; Movement for Family Power; Atlanta Doulas Collective; Pegasus Health Justice Center; The Sayra & Neil Meyerhoff Center for Families, Children and the Courts; The Shades of Blue Project; Shafia Monroe Consulting/Birthing Change; Southern Birth Justice Network; The Foundation for Black Women’s Wellness; The Academy of Perinatal Harm Reduction; The Beyond Do No Harm Network; Civil Rights Corps; King County Department of Public Defense; and Washington Defender Association. 11 The Department asserts the mother’s bias claim “lacks merit” as the court could not
have determined she was Black because “she called the court on her phone and was not visible.” Our Supreme Court has stated that families of color are disproportionately impacted by child welfare proceedings, so “actors in child welfare proceedings must be vigilant in preventing bias from interfering in their decision-making.” In re the Dependency of K.W., 199 Wn.2d 131, 156,
21 No. 84876-3-I (consol. with No. 84877-1-I)/22
could adequately participate in the termination proceeding despite her medical
condition.”
Henderson held that “upon a motion for a new civil trial, courts must
ascertain whether an objective observer who is aware that implicit, institutional,
and unconscious biases . . . have influenced jury verdicts in Washington State
could view race as a factor in the verdict.” 200 Wn.2d at 435 (citing State v.
Berhe, 193 Wn.2d 647, 665, 444 P.3d 1172 (2019)). If a civil litigant makes “a
prima facie showing sufficient to draw an inference of racial bias under this
standard,” the court must grant an evidentiary hearing, at which it must presume
that racial bias affected the verdict, and if the party benefiting from the alleged
racial bias cannot prove that racial bias had “no effect on the verdict,” then the
verdict is incompatible with substantial justice, and the court should “order a new
trial under CR 59(a)(9).” Id.
To the extent C.M. is raising a claim like the one in Henderson—a claim
based on the due process right to a fair tribunal—and not only a procedural due
process claim, we decline to consider the argument because she did not raise
the issue below. See RAP 2.5(a) (“appellate court may refuse to review any claim
of error which was not raised in the trial court”). Moreover, C.M. neither sought a
new trial nor assigned error on appeal on this basis.
504 P.3d 207 (2022). The dependency order does not expressly state C.M.’s race, and the court document cited by C.M. that indicated her daughter N.M.L.H.’s race as Black/African American was generated after her trial. Nevertheless, racial bias can exist without certainty of another’s race, and bias may be unconscious as well as conscious. See Letter from Wash. State Sup. Ct. to Members of Judiciary & Legal Cmty. 1 (June 4, 2020), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20Legal %20Community%20SIGNED%20060420.pdf [https:// perma.cc/QNT4-H5P7] (discussing unconscious bias).
22 No. 84876-3-I (consol. with No. 84877-1-I)/23
Amici make additional arguments relating to bias. They argue that the
court revealed its underlying racial bias, it failed to preserve an appearance of
impartiality, and the judge’s conduct was not impartial. Thus, amici contend, the
court denied the mother an impartial tribunal and denied her a meaningful
opportunity to participate in her trial.
“ ‘A fair trial in a fair tribunal is a basic requirement of due process.’ ” In re
the Dependency of A.E.T.H., 9 Wn. App. 2d 502, 517, 446 P.3d 667 (2019)
(quoting Peters v. Kiff, 407 U.S. 493, 501, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972)
(quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942
(1955))). Due process “ ‘requires more than an impartial judge; it requires that the
judge also appear to be impartial.’ ” Id. (quoting State v. Solis-Diaz, 187 Wn.2d
535, 540, 387 P.3d 703 (2017)) (emphasis added). In other words, even if there
is no showing of actual bias, “ ‘due process is denied by circumstances that
create the likelihood or the appearance of bias.’ ” Id. (quoting Peters, 407 U.S. at
502). Therefore, “ ‘[t]he party asserting a violation of the appearance of fairness
must show a judge’s actual or potential bias.’ ” Id. (quoting Solis-Diaz, 187 Wn.2d
at 540). There is a presumption that a trial judge properly discharges official
duties without bias. State v. Mandefero, 14 Wn. App. 2d 825, 835, 473 P.3d 1239
(2020) (citing In re the Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1
(2004).
Amici claim that the court’s “manner” of questioning the mother prejudged
her credibility. They argue C.M. was entitled to have her credibility determined at
trial under RCW 13.34.090, but the judge’s questioning “characterize[ed] [C.M.]
23 No. 84876-3-I (consol. with No. 84877-1-I)/24
as an untrustworthy and defiant Black woman, as uncaring and unfeeling, and
therefore not credible.” To the extent amici challenge the court’s ultimate finding
on credibility in its termination order, 12 the mother’s appeal did not assign error to
any specific finding of fact. Moreover, it is not the role of an appellate court to
review credibility findings. Greene v. Greene, 97 Wn. App. 708, 714, 986 P.2d
144 (1999) (“We will not . . . adjudge witness credibility.”).
As for questioning C.M., the court made a record of relevant evidence,
weighed the evidence, and made credibility determinations for the purpose of
deciding C.M.’s motion to continue. 13 In the context of this litigation, the court’s
examination of the mother’s stated reason for the motion to continue was
prompted by the prior findings in the related dependency proceeding regarding
the mother’s obstruction of efforts to facilitate her participation, her repeated
claims of new problems or barriers to her participation, and the court’s prior
finding that she had “ultimately lied to the Court about the issues preventing her
participation in trial.” Proceedings in dependency and termination matters are
“inherently interrelated,” so the dependency order findings the court read into the
record, with the mother’s agreement, were relevant to her motion to continue the
12 The court’s written order terminating the mother’s parental rights states, “Because
[C.M.’s] testimony was unreliable at her dependency trial and was in this trial at times internally inconsistent and inconsistent with other credible evidence, the court has not relied on [C.M.’s] testimony in making these findings.” 13 Amici also challenge the court’s statement that it did “not credit the mother’s testimony
that she was released when it was dark outside yesterday.” But the court made that comment specifically in considering the mother’s pretrial motion for a continuance, and explained that this finding as to when C.M. was released from the hospital was based on the photo of her discharge summary, which showed it was printed at 11:51 a.m., not “when it was dark,” i.e., in the evening, as C.M. had testified. And ultimately, on the key factual issue relating to the motion to continue— whether C.M. had been hospitalized the weekend before the trial was set to begin, as she claimed—the court explicitly found, “I do find that the mother experienced a medical event that led to the termination or miscarriage of her pregnancy.”
24 No. 84876-3-I (consol. with No. 84877-1-I)/25
trial. See In re the Dependency of A.N.G., 12 Wn. App. 2d 789, 795, 459 P.3d
1099 (2020).
Nonetheless, even if, based on C.M.’s prior behavior, it was appropriate
for the court to seek verification of her stated reason for a continuance—i.e.,
whether she had in fact been hospitalized for a placental abruption—there were
far less intrusive ways for the court to do so. For instance, the court could have
relied on C.M.’s counsel’s representations based on his conversations and his
review of C.M.’s discharge papers, as attorneys are officers of the court who owe
a duty of candor to the court. Or, the court could have simply reviewed the
discharge papers to learn, as it did, that C.M. had been hospitalized, the name of
the hospital, the date of discharge, and the discharge instructions, including
medications and care recommendations. The court also could have satisfied
itself as to C.M.’s ability to participate with fewer questions and could have
limited questioning of her by the Department and the CASA.
Instead, the court allowed C.M. to be subjected to two rounds of detailed
questioning that required her to share personal and sensitive health information
with multiple people present, fewer than 48 hours after she was hospitalized and
suffered a pregnancy loss. After the court questioned C.M. about information
relevant to the need for a continuance, similar to what the discharge papers
themselves contained, it allowed all the attorneys to further interrogate her. The
Department’s attorney asked C.M. if she knew she was pregnant before she
went to the hospital, when she could return to work, and nine separate questions
regarding when she communicated with her attorney. The CASA attorney asked
25 No. 84876-3-I (consol. with No. 84877-1-I)/26
C.M. why she chose to go to the particular hospital rather than a different facility
and asked her again about the recommended period of bed rest. C.M.’s counsel
asked her questions about her ability to participate in the trial and their
communications about her hospitalization. And then the court allowed another
round of questioning, starting with its own additional questions. The court asked
for details about her condition and diagnosis, how far along she was in her
pregnancy, and, “Are you still pregnant or did you lose the pregnancy?” And
following that, the Department and C.M.’s counsel each asked yet more
questions. The volume of questioning, the topics, and the redundancy all were
well beyond what was necessary for the court to determine whether there was a
valid basis for a continuance and what additional procedural safeguards were
necessary. It can be no surprise such interrogation would cause a parent facing
termination of her rights to her children, on the heels of a pregnancy loss, while
still recovering from hospitalization, to feel assailed, powerless, and without
agency in the legal process.
But as painful to C.M. and as insensitive as the manner of questioning
may have been, she did not raise the claims that amici raise, either to this court
or below. C.M. does not argue a due process violation based on actual bias or
appearance of bias in the tribunal, or that the manner of questioning prejudged
her credibility or otherwise deprived her of a meaningful opportunity to engage or
participate. Nor does she assign error on those bases on appeal. The sole
assignment of error in her opening brief states that “[t]he court violated Ms. M’s
constitutional right to procedural due process when it denied a continuance.”
26 No. 84876-3-I (consol. with No. 84877-1-I)/27
Brief of Appellant at 2 (emphasis added). The sole “[i]ssue pertaining to
assignments of error” she raised is whether the court’s denial of her motion to
continue risked the erroneous deprivation of her parental rights. On review, an
appellate court “address[es] only claims made by a petitioner, and not those
made solely by amici.” Cummins v. Lewis County, 156 Wn.2d 844, 850 n.4, 133
P.3d 458 (2006). Consequently, we are not able to consider the arguments made
solely by amici here.
CONCLUSION
C.M. challenged the trial court’s termination of her parental rights as to her
daughters, N.M.L.H. and M.I.S., solely based on procedural due process
grounds. The court’s decision to proceed with the trial, but to delay testimony for
a week, provided C.M. with adequate procedural safeguards. Even before her
emergency hospitalization, C.M.’s preference was to attend her trial by calling
into the trial via Zoom, and that is what she did. We hold that C.M.’s right to
procedural due process was not violated, and, therefore, we affirm.
WE CONCUR: