Gonzales v. State (In re A.N.G.)

• Decision Date: 23 March 2020
• Docket Number: No. 80004-3-I,80004-3-I
• Citation: 12 Wash.App.2d 789,459 P.3d 1099
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the DEPENDENCY OF A.N.G., a minor child, Valerie Ann Gonzales, Appellant, v. State of Washington, Department of Children, Youth, and Families, Respondent.

12 Wash.App.2d 789

459 P.3d 1099

In the MATTER OF the DEPENDENCY OF A.N.G., a minor child,

Valerie Ann Gonzales, Appellant,

v.State of Washington, Department of Children, Youth, and Families, Respondent.

No. 80004-3-I

Court of Appeals of Washington, Division 1.

FILED: March 23, 2020

Washington Appellate Project, Richard Wayne Lechich, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant(s).

Office of Attorney General, Attorney at Law, Bellingham RegionalOfc., 103 E. Holly Street Suite 310, Bellingham, WA, 98225-4310, Michael James Shinn, Office of The Atty. General, 1220 Main St.Ste. 510, Vancouver, WA, 98660-2964, Sarah Reyes, Attorney General's Office, 2211 Rimland Drive Suite 325, Bellingham, WA, 98226, for Respondent(s).

PUBLISHED OPINION

Hazelrigg, J. ¶1Valerie A. Gonzales¹ is the mother of A.N.G., a medically complex child.The Department of Children, Youth and Families²(the department) initiated dependency proceedings based on concerns about Gonzales’ ability to appropriately respond to A.N.G.’s specialized medical needs.The case proceeded to a bench trial which resulted in termination of Gonzales’ parental rights.The judge presiding over the termination trial previously served as the Assistant Attorney General(AAG) for the department who sought termination of Gonzales’ rights as to her two older children.Gonzales appeals the termination ruling as to A.N.G. on numerous grounds, including violation of her right to due process based on the judge’s failure to recuse himself as a result of the role he played in her prior terminations.We agree with Gonzales as to the due process claim, reverse and remand for a new trial and do not reach her other assignments of error.

FACTS

¶2 A.N.G. was born in the fall of 2016 to Gonzales³ three months premature and with significant medical needs.

Following his discharge from the hospital, Gonzales missed multiple medical appointments for A.N.G. and he lost weight.In July 2017, the department filed a dependency petition and the court removed A.N.G. from Gonzales’ care due to her failure to meet his medical needs.

¶3 In October 2017, Gonzales agreed to dependency, acknowledging parental deficiencies involving her history of substance abuse and her failure to schedule and attend medical appointments for A.N.G. Gonzales further agreed to a dispositional plan meant to address concerns about substance abuse.The court ordered her to regularly attend A.N.G.’s medical appointments as scheduled and to demonstrate an ability to apply the skills necessary to care for her child.

¶4 A trial was set to adjudicate termination of Gonzales’ parental rights.Prior to Gonzales’ arrival on the morning of trial, the AAG for the department informed the judge of his involvement in the prior case as the AAG who sought and obtained the termination orders as to the two older children.Gonzales’ attorney advised the judge, "you were opposing counsel at the time and [Gonzales] did default at that time.I understand for today’s proceedings that she is on her way and would like to proceed with the trial today."The judge indicated that he did not remember Gonzales or the prior proceedings.Gonzales’ attorney asked that the judge inform the parties if he recognized Gonzales when she arrived.

¶5 When Gonzales arrived later, the judge informed the partieshe did not have a recollection of Gonzales but did not address the potential conflict or obtain a waiver.The court then heard testimony from Gonzales and a number of witnesses, including A.N.G.’s caregivers, social workers and guardian ad litem.The court marked and admitted a number of exhibits; among those marked, but not admitted, were termination orders as to two of Gonzales’ older children, drafted by the judge in his capacity as the AAG for the department.At the conclusion of trial, the court issued written findings that the department had met its burden of proving all elements of RCW 13.34.180(1), that Gonzales was unfit, and that termination was in A.N.G.’s best interests.The judge entered an order terminating Gonzales’ parental rights as to A.N.G. Gonzales timely appealed.

ANALYSIS

¶6 Gonzales argues her right to an impartial judge was violated, extrinsic evidence was improperly considered, that many of the court’s findings of fact were not supported by substantial evidence, the court erred by considering the best interest of the child when determining parental fitness, and that cumulative error deprived her of the right to a fair trial.We first address Gonzales’ claim that the judge violated her constitutional right to due process by not recusing himself, or in the alternative, obtaining a knowing, voluntary and intelligent waiver from Gonzales.

¶7"Parents have a fundamental liberty and privacy interest in the care and custody of their children."In re Welfare of R.H., 176 Wash. App. 419, 425, 309 P.3d 620(2013).Due to the constitutional rights at stake in a termination proceeding, parents are provided greater due process rights there than in other stages of dependency or other custody proceeding.Id.

¶8This case implicates due process under the state and federal constitution because "[a] fair trial in a fair tribunal is a basic requirement of due process."In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942(1955);accordState ex rel. McFerran v. Justice Court of Evangeline Starr, 32 Wash.2d 544, 549-50, 202 P.2d 927(1949).Due process requires the absence of an unconstitutional "risk of bias."Rippo v. Baker, ––– U.S. ––––, 137 S. Ct. 905, 907, 197 L. Ed. 2d 167(2017).The United States Supreme Court has explained that the federal Due Process Clause has been implemented by objective standards that do not require proof of actual bias, just the risk of such bias.

Williams v. Pennsylvania, ––– U.S. ––––, 136 S. Ct. 1899, 1905, 195 L. Ed. 2d 132(2016).The inquiry requires that "[t]he Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias."Id.(internal citations omitted)(emphasis omitted).The Supreme Court has made clear that due process may be violated even if a judge is not actually biased.Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, 106 S. Ct. 1580, 89 L. Ed. 2d 823(1986).Further, RCW13.34.090 establishes that any party involved in parental termination proceedings has a right "to receive a decision based solely on the evidence adduced at the hearing, and to an unbiased fact finder."

¶9 In Gonzales’ case, the trial court judge served as an AAG in Whatcom County prior to his appointment to the Whatcom County Superior Court bench.While serving as an AAG, the judge represented the State in dependency and termination cases concerning Gonzales’ two older children.The record contains evidence of this fact, independent of the assertions of counsel prior to the start of trial, in the form of the final orders terminating Gonzales’ parental rights to those children.While not admitted as trial exhibits, the record suggests that the orders were considered by the court in reaching its termination decision as to A.N.G.

¶10 The judge explained that during the dependency at issue here, prior to his judicial appointment, he was "wholly reassigned to Western Washington University" and he had not been assigned to A.N.G.’s dependency case.As such, he did not believe there was a basis for recusal.Gonzales’ attorney did not request recusal but only asked that the judge advise the parties if he recognized Gonzales when she arrived.This discussion was conducted on the record, but outside Gonzales’ presence, prior to her arrival in court.When Gonzales arrived, the judge only stated, "Morning Ms. Gonzales.And to answer the question you raised preliminarily here, [defense counsel], um, I do not recall by seeing your client [here] at all."This brief comment is the only reference to possible bias or recusal while Gonzales was present.There is nothing in the record to suggest that Gonzales was advised by anyone as to the judge’s role in the termination of her rights as to her older children or her right to seek his recusal in the instant case.

¶11The State cites to State v. Dominguez, where this court upheld a judge’s decision not to recuse himself after having previously represented the defendant as a client and...