IN RE THE WELFARE OF M.I.S. v. A.S., NO. 41000-8-I

CourtCourt of Appeals of Washington
Writing for the CourtKennedy, C.j.
Docket NumberNO. 41000-8-I
Decision Date24 May 1999

NO. 41000-8-I
Washington Court of Appeals
Source of Appeal: Appeal from Superior Court of King County Docket No: 96-7-00149-8 Judgement or order under review Date filed: 06/18/1997 Judge signing: Hon. Marsha J. Pechman
May 24, 1999
[8] Judges: Authored by Faye C. Kennedy Concurring: H. Joseph Coleman Marlin J Appelwick
[9] Counsel: Counsel for Appellant(s) Aziz Safouane (Appearing Pro Se) 20920 110th Ave. SE Apt. #2001 Kent, WA 98031 Sarah Safouane (Appearing Pro Se) 20920 110th Ave SE Apt. #2001 Kent, WA 98031 Counsel for Respondent(s) Christine L. Currie Assistant Attorney General Office of the Atty Gen. 900 4th Ave., Ste 2000 Seattle, WA 98164 Joel J. Delman Ofc of Atty Gen Dshs 900 4th Ave Ste 2000 Seattle, WA 98164-1012 Counsel for Guardian(s) Ad Litem Lori L. Irwin King County Juvenile Ct 1211 E Alder St #2-l Seattle, WA 98122-5598
[10] The opinion of the court was delivered by: Kennedy, C.j.
[11] [Editor's note: originally released as an unpublished opinion]
[12] After their four oldest children were found dependent, A.S. and S.S. refused to undergo court-ordered psychological examinations and failed to visit their children in foster care, despite repeated efforts by D.S.H.S. to arrange visitation and maintain the parent-child bonds. Based on the dependency of the older children and the parents' steadfast refusal to participate in the services ordered by the court and offered by D.S.H.S. with respect to those children, a fifth child was also found dependent. Eventually the parent-child relationships between A.S. and S.S. and all five children were terminated. Pro se, the parents appeal the termination orders, alleging a myriad of substantive, procedural, and constitutional infirmities. Finding no error and substantial evidence to support the termination orders in light of the degree of proof required, we affirm.
[14] At about 3 a.m. on September 29, 1994, A.S. and S.S. called 911 when their 22-month old son, Mohammed, stopped breathing. Unable to stabilize Mohammed, emergency personnel transported him to the hospital. Shortly thereafter, doctors pronounced Mohammed dead. Later that day, an autopsy revealed that Mohammed died of a blunt trauma to his abdomen. M.I.S., M.M.S., N.M.S., and M.R.S., Mohammed's siblings, were removed from their parents' custody.
[15] The next day, D.S.H.S. initiated proceedings to declare the children dependent. "At the time the dependency proceedings were initiated, the father was incarcerated in King County Jail and charged with homicide for the death of Mohammed." Clerk's Papers at 754. Before the father's trial, the court suppressed as inadmissible hearsay statements by two of the children that incriminated the father in Mohammed's death. Following the suppression order, the State moved to dismiss the criminal charges. The court dismissed the criminal charges against the father without prejudice on January 25, 1995.
[16] On February 17, 1995, E.R.S. was born. On February 20, 1995, D.S.H.S. initiated dependency proceedings and took E.R.S. from the parents' custody. Between February 22, 1995, and March 17, 1995, Judge Deborah Fleck held a hearing on the dependency of the four oldest children. During the hearing, D.S.H.S. presented testimony that Mohammed died from a blunt trauma to his abdomen, that he could have survived his abdominal injury if had received prompt medical attention, and that Mohammed's injury was the result of abuse and not a bike accident as the parents claimed. In addition to the medical testimony, Judge Fleck ruled notwithstanding the criminal court's suppression order that she could consider the children's hearsay statements that incriminated their father in Mohammed's death.
[17] On May 4, 1995, Judge Fleck entered an order finding M.I.S., M.M.S., N.M.S., and M.R.S. dependent, and ordered, inter alia, that the parents undergo psychological examinations, that the children be returned to the mother, that the father move out of the family home, and that the father could have supervised visits with the dependent children. Judge Fleck also entered a no contact/restraining order, prohibiting the father from entering the family home or visiting the children without supervision. In addition, Judge Fleck established an advisory, voluntary panel, which was to include at least one member of the Muslim community, "to assist the family in securing needed services and complying with court orders and mandates." Clerk's Papers at 798.
[18] On October 5, 1995, Judge Fleck ordered the children to be removed from their mother's custody because the parents failed to comply with the court's orders. On October 11, 1995, the children were removed from their mother's custody.
[19] On June 19, 1996, D.S.H.S. filed a petition to terminate the parents' relationships with M.I.S., M.M.S., N.M.S., and M.R.S. D.S.H.S.'s position was that the manner of Mohammed's death put his siblings at risk and that the parents' refusal to comply with the dependency orders seriously undermined any possibility that the children could ever be safely returned to their parents' custody. The parents maintained that they were not responsible for Mohammed's death, that visitation was unnecessary because the separation would not interfere with the sacred bond that they have with their children, and that following the court's unjust orders would be a dishonor to their children and the Muslim community.
[20] On July 29, 1996, citing the dependency of E.R.S.'s four older siblings and the parents' steadfast refusal to undergo the court-ordered psychological examinations, Judge Carol Shapira entered an order finding E.R.S. dependent. On August 23, 1996, Judge Shapira ordered that E.R.S. remain in the custody of D.S.H.S. and that supervised visitation with the parents commence immediately. The parents appealed both findings of dependency, both Disposition orders, and the no contact/restraining order.
[21] The termination proceedings were assigned to Judge Harriet Cody. On October 16, 1997, the guardian ad litem for the four older children filed an affidavit of prejudice against Judge Cody, and the case was reassigned to Judge Jeanette Burrage. The father then filed an affidavit of prejudice against Judge Burrage, and Judge Burrage ordered a change of Judge but a new Judge was not assigned. On January 10, 1997, D.S.H.S. filed a petition for termination against E. R. S. and the case was assigned to Judge Michael Hayden. The mother filed an affidavit of prejudice against Judge Hayden and the case was reassigned to Judge Marsha Pechman.
[22] On February 26, 1997, Chief Civil Judge Sharon Armstrong, over the parents' objections, granted D.S.H.S.'s motion to consolidate the termination proceedings related to E. R. S. with the termination proceedings related to M.I.S., M.M.S., N.M.S., and M.R.S. The mother then filed an affidavit of prejudice against Judge Pechman and moved for a change of Judge. Judge Pechman denied the motion, ruling that the parents had exhausted their statutory right to change Judges and had to demonstrate actual prejudice before she would order another change of Judge.
[23] The termination hearing before Judge Pechman began on March 13, 1997. On March 27, 1997, Judge Pechman stayed the proceedings until D.S.H.S. remedied certain discovery violations. Judge Pechman also ordered the parents to visit their children and warned the parents that their failure to do so would be considered a "serious impediment towards any possible reunification of the family." Clerk's Papers at 565. The termination hearing ended on May 20, 1997. On June 18, 1997, Judge Pechman entered findings of fact, Conclusions of law, and an order terminating the parent-child relationships between the parents and their five children. The parents' appeal of Judge Pechman's findings, Conclusions, and order is presently before this court.
[24] On August 4, 1997, a panel of Judges from this court affirmed Judge Fleck's finding of dependency and order of Disposition regarding the four oldest children. In re Dependency of M.I.S.; M.S.; N.S.; M.R.S., Nos. 36743-9-I, 36744-7-I, 36745-5-I, 36746-3-I, 1997 WL 435887 (Wn. App. Aug. 4, 1997) (unpub.), review denied, 134 Wn.2d 1003, 953 P.2d 96, cert. denied, 119 S. Ct. 202, 142 L. Ed. 2d 166 (1998). In the decision, the court held that although collateral estoppel did not prevent Judge Fleck from considering the children's statements incriminating their father in Mohammed's death, the statements were inadmissible hearsay. Id. at *5. Nonetheless, the court found the error harmless because Judge Fleck only considered the evidence to rule out the mother as the source of the injury. Id. at *6. On April 6, 1998, a commissioner of this court affirmed Judge Shapira's finding of dependency regarding E. R. S. In re Dependency of E. R. S., No. 39300-6-I (Wn. App. Apr. 6, 1997) (unpub.).
[26] I. Third Affidavit of Prejudice
[27] "Under RCW 4.12.040 and .050, a party has the right to disqualify a trial Judge without demonstrating actual prejudice, if the statutory requirements of RCW 4.12.050 are met." State v. Belgarde, 62 Wn. App. 684, 689, 815 P.2d 812 (1991), aff'd, 119 Wn.2d 711, 837 P.2d 599 (1992). "A party is entitled to only one change of Judge as a matter of right." State v. Detrick, 90 Wn. App. 939, 942-43, 954 P.2d 949 (1998). After this statutory right is exhausted, a party must demonstrate actual prejudice to disqualify a subsequently assigned Judge. Id. "These rules apply to superior court Judges sitting in juvenile court." Id.
[28] In this case, each of the parents filed an affidavit of prejudice against a juvenile court Judge assigned to the termination petition involving M.I.S., M.M.S., N.M.S., and M.R.S., and the mother filed an affidavit of prejudice against a juvenile court Judge assigned to the

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