Dabbagh v. State (In re A.D.)

• Decision Date: 18 April 2016
• Docket Number: 73159–9–I.,73157–2–I,Nos. 73055–0–I,73056–8–I,73057–6–I,73158–1–I,s. 73055–0–I
• Citation: 193 Wash.App. 445,376 P.3d 1140
• Parties: In the Matter of the DEPENDENCY OF A.D., DOB: 12/24/1997, R.D., DOB: 9/3/2003, A.D., DOB: 9/14/2008. Mohammed Dabbagh, Appellant, v. State of Washington, Department of Social and Health Services, Respondent. In the Matter of the Dependency of A.D., DOB: 12/24/1997, R.D., DOB: 9/3/2003, A.D., DOB: 9/14/2008, Ibtissam Nakalji, Appellant, v. State of Washington, Department of Social and Health Services, Respondent.
• Court: Washington Court of Appeals

193 Wash.App. 445

376 P.3d 1140

In the Matter of the DEPENDENCY OF A.D., DOB: 12/24/1997, R.D., DOB: 9/3/2003, A.D., DOB: 9/14/2008.

Mohammed Dabbagh, Appellant

v.State of Washington, Department of Social and Health Services, Respondent.

In the Matter of the Dependency of A.D., DOB: 12/24/1997, R.D., DOB: 9/3/2003, A.D., DOB: 9/14/2008

Ibtissam Nakalji, Appellant

v.State of Washington, Department of Social and Health Services, Respondent.

Nos. 73055–0–I

73056–8–I

73057–6–I

73157–2–I

73158–1–I

73159–9–I.

Court of Appeals of Washington, Division 1.

April 18, 2016.

Nielsen Broman Koch PLLC, Attorney at Law, Jennifer J. Sweigert, Seattle, WA, Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Appellant.

Robert W. Ferguson, Office of the Attorney General, Olympia, WA, Arlene K. Anderson, Office of the Attorney General Everett, WA, for respondent.

Kirsten Jensen Haugen, Attorney at Law Everett, WA, Gwen Marie Forrest Reider, Snohomish County Superior Court–VGAL, Everett, WA, for Guardian Ad Litem.

TRICKEY, A.C.J.

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

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

FACTS

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

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

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

¶ 6 During the dependency, Dabbagh attended parenting classes and counseling for domestic violence. Because he continued to deny that he had sexually abused S.D., he was found unamenable to treatment for sexual deviancy. Nakalji also continued to deny that Dabbagh abused S.D. Nakalji had suffered from depression since at least 2007. As her depression worsened, she became less engaged in the court proceedings and even stopped participating in the children's visits at her home. Her depression ultimately resulted in her hospitalization in April 2014. While hospitalized, Nakalji began taking medication for depression and psychosis. Her depression and engagement improved over the next few months, but she remained extremely dependent on Dabbagh for her own needs and for guidance on parenting.

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

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

ANALYSIS

Exclusion of Nakalji during A.D.'s Testimony

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

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

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

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

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

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

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

¶ 17 Both Nakalji and the State have strong interests at stake in these proceedings. Nakalji “has a fundamental liberty interest in the care and custody of her children.” L.R., 180 Wash.App. at 724, 324 P.3d 737. The State, likewise, has a strong interest in protecting the rights of A.D. and the other children. L.R., 180 Wash.App. at 727, 324 P.3d 737. The State has no interest in separating children from their fit parents. T.R., 108 Wash.App. at 159, 29 P.3d 1275. Excluding Nakalji and Dabbagh from the courtroom served the State's interest in protecting A.D.'s welfare because the court found that excluding them was important to protect A.D. and A.D.'s relationship with his parents. But that exclusion would not promote the State or Nakalji's interests if it created a risk that the State would erroneously terminate Nakalji's parental rights.

¶ 18 Therefore, the primary question is whether allowing A.D. to testify without his parents in the courtroom created much risk of error. It did not. Although Nakalji herself was excluded, both her guardian ad litem and attorney represented her during A.D.'s testimony. At Nakalji's request, the court recessed for 18 minutes between A.D.'s direct and cross-examination in order for the attorneys to confer with the parents. Nakalji did not seek any other breaks.

¶ 19 The court found that it was important to have “as much information as possible” and agreed that A.D. would be more forthcoming without his parents there.⁴ A.D. did, in fact, testify about aspects of his current life and his relationship with his parents that he might not have said in front of them.

¶ 20 Nakalji's argument that there was a high risk of error because she could not help her attorney prepare for cross-examination since her attorney would not be able to recount A.D.'s full testimony to her is not compelling. In a very similar case, a court held that having child witnesses testify without their parents present did not violate due process because, like here, the parents' counsel was present, the questions were asked on the record, there was other evidence to corroborate the children's evidence, and the parents' counsel had an opportunity to cross-examine the children and present rebuttal evidence.⁵ S.E., 63 Wash.App. at 249–50, 820 P.2d 47.

¶ 21 Nakalji attempts to distinguish this case from S.E. In that case, both parents had been involved in the sexual abuse of the children. S.E., 63 Wash.App. at 246, 820 P.2d 47. The court excluded the parents because of the children's ages, both were under 10, and the nature of their testimony. S.E., 63 Wash.App. at 250–51, 820 P.2d 47. The children testified about the abuse and where they wanted to live. S.E., 63 Wash.App. at 251, 820 P.2d 47.

¶ 22 Nakalji argues that there was no reason to exclude her while A.D. testified because she did not participate in any abuse. Although Nakalji was not abusive, she was extremely neglectful, about which A.D....