State v. Aradon (In re A.E.T.H.)

• Decision Date: 12 August 2019
• Docket Number: No. 76964-2-I,consolidated with 77002-1-I, 77660-6-I, 77960-5-I,76964-2-I
• Citation: 446 P.3d 667,9 Wash.App.2d 502
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the DEPENDENCY OF A.E.T.H. (D.O.B. XX/XX/XXXX), Minor child. State of Washington, Department of Social and Health Services, Respondent, v. Nylysha Starvion Belafon Aradon and Carey Allen Hayes, Appellants.

9 Wash.App.2d 502

446 P.3d 667

In the MATTER OF the DEPENDENCY OF A.E.T.H. (D.O.B. XX/XX/XXXX), Minor child.

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

v.Nylysha Starvion Belafon Aradon and Carey Allen Hayes, Appellants.

No. 76964-2-I

consolidated with 77002-1-I, 77660-6-I, 77960-5-I

Court of Appeals of Washington, Division 1.

FILED: August 12, 2019

Gregory Charles Link, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-1683, Kathleen A. Shea, Luminata, PLLC, 2033 6th Ave. Ste. 901, Seattle, WA, 98121-2568, Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Po Box 6490, Olympia, WA, 98507-6490, for Appellants.

Rachel Brehm King, Office of the Attorney General, 3501 Colby Ave. Ste. 200, Everett, WA, 98201-4795, for Respondent.

Paige Buurstra, Buurstra Law PLLC, 116 Avenue A, Snohomish, WA, 98290-2926, for Guardian(s) Ad Litem.

PUBLISHED OPINION

Smith, J.

— ¶1 The right to a fair trial before an impartial tribunal is a basic requirement of due process. Peters v. Kiff, 407 U.S. 493, 501, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972). This right to due process is especially critical in a proceeding to terminate parental rights, where so much is at stake for both the parent and the child. Here, Nylysha Aradon and Carey Hayes seek reversal of the order terminating their parental rights to their daughter, A.H. They argue that they were denied a fair trial before an impartial tribunal. We agree.

¶2 After the termination trial, and after extensive posttrial proceedings on allegations of misconduct of the Snohomish County Volunteer Guardian Ad Litem Program (VGAL Program), Judge Anita Farris recused herself from the entire proceedings, including the termination proceeding. Judge Farris concluded that the parents were "denied their due process constitutional right to an impartial judge by having a Snohomish County Superior Judge preside over this case." Judge Farris explained that "[t]he manner in which the [VGAL Program] was operated during this case creates doubt about the Snohomish County Superior Court’s ability to be impartial in this case involving court employees directly participating in the litigation." Nevertheless, Judge Farris concluded that entry of the order was a ministerial act and entered the termination order.

¶3 We hold that the parents’ due process rights were violated and that entry of the order was not a ministerial act. Therefore, we reverse the termination order and we remand to a county other than Snohomish County for a new trial. We also direct the trial court to vacate the CR 59, CR 60, and sanction orders entered after Judge Farris’s recusal. On remand, we direct the court to appoint an attorney and a new guardian ad litem (GAL) for A.H.

FACTS

¶4 A.H. was born on February 24, 2013, to mother Aradon and father Hayes (parents). At birth, A.H. tested positive for methadone, and Aradon tested positive for methadone and marijuana. The parents had a verbal disagreement at the hospital, and A.H. was possibly dropped into her crib. Although A.H. was not injured, Hayes was escorted out of the hospital by security. Four days after her birth, the Department of Social and Health Services (Department) removed A.H. from her parents’ custody and placed her with a foster parent with whom she has resided since her removal in 2013.

¶5 The Department filed a dependency petition in Snohomish County Superior Court (superior court) on February 28, 2013, and A.H. was found to be dependent as to both parents on May 23, 2013. According to the order of dependency, Aradon’s parental deficiencies included mental health and substance abuse issues and Hayes’ parental deficiencies included substance abuse and a long-term domestic violence problem. The superior court ordered the parents to engage in services and gave each parent four hours of supervised visitation per week.

¶6 During the dependency, the superior court appointed Denise Brook to serve as the volunteer guardian ad litem (VGAL). VGAL Brook was a volunteer with the VGAL Program, which is an agency of the superior court. The VGAL Program’s staff members are considered court employees.

¶7 It is undisputed that VGAL Brook believed it was in A.H.’s best interests to remain permanently with the foster parent and that VGAL Brook opposed expanded visitation with the parents. During her time on the case from 2014 to 2015, VGAL Brook committed numerous breaches of confidentiality that benefited the foster parent. She disclosed previous parental terminations and the parents’ criminal records to the foster parent. She also lobbied the VGAL Program to cancel parental visitations if a strict food plan, which the parties later discovered was medically unnecessary, was not followed. At the same time, she opposed giving the parents access to A.H.’s medical providers. She also tried to attend a parenting class to observe A.H. and Aradon without Aradon’s knowledge after an instructor told her she could not attend for confidentiality reasons.

¶8 VGAL Brook died in January 2015. In February 2015, the superior court appointed Susan Walker, VGAL Brook’s program coordinator and an employee of the VGAL Program, as the replacement VGAL. The declaration submitted by VGAL Walker in support of her motion replacing VGAL Brook simply states that " ‘Ms. Brook is no longer able to work the case.’ " No one notified the superior court or the parties that VGAL Brook had died.

¶9 VGAL Walker was largely uninvolved in the case from the time of her appointment until the termination trial in August 2015. During her seven-month tenure as the VGAL, Walker contacted only one service provider for one parent, observed only one parent at one visit, and never personally spoke to the parents. And despite concerns that A.H. was allergic to certain foods, VGAL Walker never contacted A.H.’s medical providers and did not inform the parents when A.H.’s issues were resolved and her food intake no longer needed to be restricted in the same ways previously communicated.

¶10 The six-day termination trial began on August 26, 2015, before Judge Farris. Many people testified, including both parents, VGAL Walker, several social workers, and several service providers. VGAL Walker’s testimony was particularly troubling, and Judge Farris found it to be "uninformed, inconsistent, dishonest, and biased." Judge Farris described seven specific instances during trial when VGAL Walker’s testimony lacked candor. In one of those instances, VGAL Walker testified that she could not recall whether VGAL Brook sent the parents’ criminal records to the foster parent’s adoption agency. But during VGAL Walker’s cross-examination, Aradon’s attorney revealed an e-mail obtained from the VGAL Program during discovery that referenced an attachment appearing to be criminal records. Concerned that a VGAL would illegally forward criminal records to the adoption agency, Judge Farris ordered the VGAL Program to produce the attachment, which it had not turned over as part of discovery.

¶11 The VGAL Program produced the requested attachment. The attachment revealed that VGAL Walker was the person who requested and sent the criminal records to VGAL Brook, who then illegally sent them to the foster parent’s adoption agency. During a hearing on September 11, 2015, Judge Farris determined that VGAL Walker was deliberately untruthful about her knowledge of the e-mail and attachment and expressed her disappointment and shock at the behavior of the VGALs and the VGAL Program in this case. After discussing other issues of credibility and bias of the VGALs and the VGAL Program, Judge Farris decided not to give VGAL Walker’s testimony any weight. In the oral ruling, Judge Farris terminated the parents’ parental rights to A.H. Judge Farris also ordered the VGAL Program to "produce all documents, including emails, notes of all communications had with the foster parents and with the adoption agency." Judge Farris did not enter written findings or a written order of termination at this time.

¶12 Shortly after trial, Aradon’s attorney filed a formal complaint against VGAL Walker with the superior court. In October 2015, the parents moved to remove VGAL Walker based on her misconduct. In response to this motion, Sara Di Vittorio, an attorney with the civil division of the Snohomish County Prosecutor’s Office, wrote a threatening letter on behalf of the VGAL Program to Aradon’s attorneys on November 3, 2015. In that letter, Di Vittorio demanded that the attorneys "cease disclosing" confidential information about VGALs in court filings and in conversations with other members of the legal community, or the VGAL Program would "consider further legal steps." At the end of November 2015, the superior court notified Aradon’s attorney that his administrative complaint against VGAL Walker was deemed unfounded but that it had prompted the superior court to reassess and clarify the VGAL Program’s complaint procedure.

¶13 Around this time, Kirsten Haugen, a staff attorney for the VGAL Program who also represented VGAL Walker, met with Di Vittorio and other lawyers and administrators for the superior court and discussed the motion to remove VGAL Walker. Di Vittorio advised Haugen to oppose the parents’ motion to remove VGAL Walker by filing motions to strike and redact based on CR 11 and a local confidentiality rule. Di Vittorio's assistance to Haugen, who represented a party adversarial to the parents, was not disclosed to the parents’ attorneys.

¶14 Employees of the VGAL Program, and therefore employees of the superior court, also engaged in retaliation against attorneys in the same firm as Aradon’s attorney. For example, they issued boilerplate objections to all discovery requests in every case involving that firm, refused to allow the firm’s attorneys to enter the VGAL office without an escort, and contacted the firm’s financial authority, the Office of Public Defense, as payback for the administrative complaint against VGAL...