In re M.B.

• Decision Date: 23 July 2020
• Docket Number: No. 97731-3,97731-3
• Citation: 467 P.3d 969,195 Wash. 2d 859
• Court: Washington Supreme Court
• Parties: In the MATTER OF the WELFARE OF M.B., A minor child.

195 Wash.2d 859

467 P.3d 969

In the MATTER OF the WELFARE OF M.B., A minor child.

No. 97731-3

Supreme Court of Washington.

Argued May 5, 2020

Filed July 23, 2020

Skylar Texas Brett, Law Office of Skylar Brett, PLLC, Po Box 18084, Seattle, WA, 98118-0084, for Petitioner.

Jared Russell Rayborn, WA Attorney General's Office, Po Box 2317, Tacoma, WA, 98401-2317, Tacoma Social & Health Services Office of Attorney General, Attorney at Law, 1250 Pacific Avenue Suite 105, Tacoma, WA, 98401, Carissa Ann Greenberg, Office of the Attorney General, Po Box 40124, Olympia, WA, 98504-0124, for Respondent.

D'Adre Beth Cunningham, Washington Defender Association, 110 Prefontaine Pl.S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae.

González, J. ¶ 1 When the State seeks to terminate a parent-child relationship, it must do so using fundamentally fair procedures that satisfy due process of law.In this case, the juvenile court terminated N.B.’s parental rights to his son while N.B. was incarcerated.N.B. made clear that he strongly desired to participate in the termination trial by phone or in person.Despite this, most of the three-day trial occurred in his absence.N.B. was allowed to appear only by phone and for only a portion of the third day.Under the circumstances, this was not fair and violated due process.We reverse and remand for a new trial.

FACTS

¶ 2 M.B. was born in October 2015 while his father, N.B., was incarcerated.N.B. learned about M.B. when M.B. was about six months old, and N.B. began the process of establishing paternity.In the meantime, the Department of Social and Health Services(Department)¹ placed M.B. in a nonrelative foster home, and the juvenile court found him dependent.

¶ 3 N.B. suffered from severe amphetamine and opiate use disorders, and for much of the dependency, he was serving a drug offender sentencing alternative (DOSA), which allowed him to live in the community under the Department of Corrections’ (DOC) supervision.During the dependency, N.B. completed intensive outpatient treatment for chemical dependency, participated in a psychological evaluation, and started therapy with a mental health counselor.He also regularly visited M.B. and tried to obtain either custody of or a family placement for M.B..N.B. continued to struggle with methamphetamine addiction, did not complete all court-ordered services, and eventually relapsed.In October 2017, the Department filed a motion to terminate the parent-child relationship.In May 2018, N.B. violated the conditions of his DOSA, and it was revoked the following month.He returned to total confinement in August 2018 with a release date of February 2019.

¶ 4 The termination trial was initially set for April 25, 2018, but the court granted a continuance to June 13, 2018 because the assistant attorney general(AAG) had scheduling conflicts until then.The Department obtained a second continuance to June 20, 2018 to explore a change to M.B.’s permanency plan.When no change was made to M.B.’s permanency plan, the Department obtained two more continuances to prepare for trial, which was at last set for September 5, 2018.The four motions to continue were agreed on by the parties.

¶ 5 Unfortunately, N.B.’s attorney had not been able to arrange for N.B.’s presence, and, when the parties appeared on September 5, N.B.’s attorney moved for a continuance and an order for transport.N.B.’s attorney had attempted to arrange for N.B. to participate telephonically, but staff at the correctional center declined to cooperate.The AAG did not object to a brief continuance to facilitate N.B.’s transport from Larch Corrections Center in southwest Washington to Pierce County for trial, but the AAG opposed a lengthy delay.The court continued the trial until Tuesday, September 11, 2018 and signed an order requesting DOC to transport N.B. for trial by September 10th.

¶ 6 DOC did not transport N.B.The court issued a new transport order, but because of the busy schedules of the witnesses who were present, the court suggested trial begin in the meantime to take their testimony.The court wanted to wait, however, to take the testimony of the primary witnesses—the social worker and the guardian ad litem (GAL)—until N.B. was present.N.B.’s attorney did not object.The parties proceeded to trial, and the court heard testimony from N.B.’s chemical dependency counselor and his mental health counselor.N.B.’s counsel cross-examined both witnesses.

¶ 7 When the parties appeared the following week for trial to resume, N.B.’s attorney informed the court that the earliest DOC would transport N.B. was September 27, 2018.This was inconvenient for the court because September 27 was the day before a one-week recess and it wanted to finish trial before then.N.B.’s counsel again emphasized N.B.’s strong desire to be present and advocated for "whatever it would take to get him present."4 VRP(Sept. 18, 2018)at 93.The AAG was concerned that continuing the matter to a date after September 27 would compromise the child's chance for permanency.The court decided to proceed that day and to take N.B.’s testimony by phone.That day, the trial resumed with the direct testimony and partial cross-examination of the social worker, and the full testimony of various DOC community corrections officers and the psychologist who performed N.B.’s psychological evaluation.All were cross-examined by N.B.’s counsel.

¶ 8 The next day, at last, N.B. appeared and testified telephonically.After testifying, N.B. remained on the phone for the last 30 minutes of his attorney's cross-examination of the social worker and for the testimony of the GAL, which lasted about three minutes.The parties rested and, at the direction of the court, N.B. hung up the phone.The record does not suggest N.B. was given the opportunity to consult with his attorney about the proceedings, and when proceedings reconvened in the afternoon for closing arguments, N.B. was not on the phone.

¶ 9 In closing argument, the State contended, among other things, that N.B.’s parental deficiencies were not likely to be remedied in the foreseeable future because of his relapse and incarceration.The State argued N.B.’s actions showed he would not be able to overcome his addiction.N.B. argued he had been fighting to recover and pointed to evidence that 93 percent of people who suffer from methamphetamine addiction relapse after treatment.Emphasizing his will to overcome failure, his strong parenting abilities, and the bond he shares with M.B., N.B. argued that if allowed to continue visitation, drug treatment, and therapy, he could remedy his deficiencies in the near future.

¶ 10The court terminated N.B.’s parental rights.N.B. appealed, arguing the court violated due process by holding trial largely without him.The Court of Appeals Division Two commissioner affirmed, concluding that representation by counsel was a sufficient procedural safeguard under the circumstances.A panel of judges denied N.B.’s motion to modify.We granted review.Order, No. 97731-3(Wash.Jan. 8, 2020).The Washington Defender Association's Incarcerated Parents Project filed an amicus brief in support of N.B.

ANALYSIS

¶ 11 N.B. argues he was denied due process of law when his parental rights were terminated after a trial that was held largely in his absence over his strongly expressed desire to be present.We review alleged violations of due process de novo.SeeIn re Welfare of A.W. , 182 Wash.2d 689, 701, 344 P.3d 1186(2015).

¶ 12 Our constitution promises both substantive and procedural due process before the State may lawfully take a person's life, liberty, or property.State v. A.N.J. , 168 Wash.2d 91, 97, 225 P.3d 956(2010)(quotingGideon v. Wainwright , 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799(1963) ).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.Mathews v. Eldridge , 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976).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."Santosky v. Kramer , 455 U.S. 745, 753-54, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982)(plurality opinion).Due process protections include a strict burden of proof, the right to notice and an opportunity to be heard and defend, and the right to the assistance of counsel.SeeIn re Welfare of Sego , 82 Wash.2d 736, 738-39, 513 P.2d 831(1973);In re Welfare of Messmer , 52 Wash.2d 510, 514, 326 P.2d 1004(1958)(quotingIn re Welfare of Petrie , 40 Wash.2d 809, 812, 246 P.2d 465(1952) );RCW 13.34.090.

¶ 13We have not previously addressed whether due process also requires an incarcerated parent's physical presence at a termination trial.Other courts have concluded due process does not give an incarcerated parent an absolute right to appear in person.See, e.g. , In re Adoption/Guardianship No. 6Z980001 , 131 Md. App. 187, 193 n.2, 748 A.2d 1020(2000)(collecting cases);In re Welfare of L.R. , 180 Wash. App. 717, 724, 324 P.3d 737(2014)(finding due process was satisfied by a parent's telephonic participation).We agree.But if an incarcerated parent is not physically present, they must be given a meaningful opportunity to be heard and defend through alternative procedures.

¶ 14 To determine whether alternative procedures satisfy due process, we use the balancing test set forth in Mathews .424 U.S. at 335, 96 S.Ct. 893;Santosky , 455 U.S. at 754, 102 S.Ct. 1388.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.Mathews , 424 U.S. at 335, 96 S.Ct. 893.Balancing the Mathew...