State v. N.P. (In re Adoption M.s.m.-P.)

• Decision Date: 19 May 2014
• Docket Number: No. 6922–4–I.,6922–4–I.
• Citation: 181 Wash.App. 301,325 P.3d 392
• Court: Washington Court of Appeals
• Parties: In re ADOPTION of M.S.M.-P., a Minor. State of Washington, A.K. and S.K., Respondents, v. N.P., Appellant.

181 Wash.App. 301

325 P.3d 392

In re ADOPTION of M.S.M.-P., a Minor. State of Washington,

A.K. and S.K., Respondents,

v.N.P., Appellant.

No. 6922–4–I.

Court of Appeals of Washington,

Division 1.

May 19, 2014.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Albert George Lirhus, John Keckemet, Lirhus & Keckemet LLP, Seattle, WA, for Respondent.

SPEARMAN, C.J.

¶ 1 A.K. petitioned the court for an order terminating N.P.'s parental rights to N.P.'s son, M.S.M.-P. and granting A.K. permanent legal custody with the right to adopt M.S.M.-P. as his own child. In a hearing on the petition the court heard testimony and took evidence regarding the termination and the prospective adoption. Pursuant to RCW 26.33.060, the trial court closed the hearing to the public, but did not follow the procedure under Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 640 P.2d 716 (1982). The court granted the petition and N.P. appeals, claiming the closure violated his right to a public trial under article I, section 10 of the Washington State Constitution and the First Amendment to the United States Constitution. We hold that, while N.P. raises a constitutional claim of error, because he does not demonstrate actual prejudice, he may not raise this claim for the first time on appeal.

FACTS

¶ 2 M.S.M.-P., a minor, was born in April 2000 and is the biological child of S.K. and N.P., who were never married.¹ The relationship between S.K. and N.P. was a violent one. On multiple occasions S.K. sought and obtained no-contact orders against N.P. At least two incidents of domestic violence by N.P. against S.K. occurred while S.K. was pregnant with M.S.M.-P. On one of these occasions, N.P. kicked and hit S.K. in the stomach, knocked her to the ground and then threw her on a bed. Within two weeks of M.S.M.-P's birth, his parents' relationship ended. One month later, N.P. was jailed for violating the no-contact order. On one occasion, N.P. assaulted S.K., breaking a wooden spoon over her thigh in front of M.S.M.-P. Although M.S.M.-P. was only two years old at the time, he cried for several hours after witnessing the assault. N.P. has also been convicted of felony harassment for threatening to kill S.K. During the first three years of M.S.M.-P.'s life N.P. visited him less than ten times. He has not seen M.S.M.-P. since then. He has not acknowledged M.S.M.-P.'s birthdays, other holidays, or had any other contact with him. Until this litigation commenced, M.S.M.-P. had no recollection of N.P.

¶ 3 In 2002, when M.S.M.-P. was two years old, S.K. began a relationship with A.K. S.K. and A.K. began living together in 2003 and married in 2008. Since he began living with S.K., A.K. has cared for M.S.M.-P. and has been the only father M.S.M.-P. has known. In early 2010, A.K. decided to adopt M.S.M.-P. Even though N.P. had had no contact with M.S.M.-P. for nearly seven years, he refused S.K.'s request for his consent to the adoption.

¶ 4 On March 18, 2010, A.K. filed a petition to terminate N.P.'s parental rights and to obtain permanent custody with the right to adopt.² A hearing on the petition was held on June 18, 2012. All parties were represented by counsel, but because N.P. was incarcerated, he participated by phone. At the beginning of the hearing, the trial court cited RCW 26.33.060 and engaged in the following exchange with the parties' attorneys:

THE COURT: I read the materials which were submitted, including the various trial briefs. I looked at the statute on proceedings, [RCW] 26.33.060. It does say, in part: “The general public shall be excluded and only those persons shall be admitted whose presence is requested by any person entitled to notice under this chapter, or whom the judge finds to have a direct interest in the case or in the work of the Court.”

So I was proposing to put a sign on the courtroom door, indicating that the hearing was closed by law. And is there—anybody have any input or any thoughts about that at all?

[Counsel for A.K.]: I think that would be fine. What we generally do in these proceedings is when someone walks in, we all look and see who it is.

THE COURT: Okay. All right.

[Counsel for N.P.]: No objection.

THE COURT: Okay. All right.

Verbatim Report Proceedings (VRP) at 5–6. Argument was heard and evidence was taken while the courtroom was closed. N.P. testified by telephone from Coyote Ridge Prison but did not otherwise listen in on the proceedings. At no time did N.P. or his attorney object to the fact that the courtroom was closed, nor did either of them request anyone's presence at the hearing.

¶ 5 The trial court made an oral ruling on June 20, 2012, granting the petition to terminate N.P.'s parental rights and indicating the adoption would move forward. A.K. thereafter filed a petition for adoption, which was granted. On July 27, 2012, the trial court entered written findings of fact and conclusions of law terminating N.P.'s parental rights, an order terminating N.P.'s parental rights, findings of fact and conclusions of law as to the adoption petition, and a decree of adoption.³ N.P. appeals, claiming only that the trial court violated his constitutional public trial rights. His challenge to the trial court's findings of fact and conclusions of law is based solely on his constitutional claim.

DISCUSSION

¶ 6 This court reviews claims based on article I, section 10 of the Washington constitution de novo. In re Dependency of J.A.F., E.M.F., V.R.F., 168 Wash.App. 653, 661, 278 P.3d 673 (2012). Whether a statute is constitutional is a question of law reviewed de novo. In re Dependency of M.S.R. and T.S.R., 174 Wash.2d 1, 13, 271 P.3d 234 (2012). Statutes are presumed constitutional. State v. McCuistion, 174 Wash.2d 369, 387, 275 P.3d 1092 (2012)cert. denied,––– U.S. ––––, 133 S.Ct. 1460, 185 L.Ed.2d 368 (2013). The party challenging the constitutionality of a statute bears the burden to prove that it is unconstitutional beyond a reasonable doubt. In re Dependency of I.J.S., 128 Wash.App. 108, 115, 114 P.3d 1215 (2005).

¶ 7 The statute at issue in this case is RCW 26.33.060, which provides that, in all hearings under chapter 26.33 RCW,⁴ “[t]he general public shall be excluded and only those persons shall be admitted whose presence is requested by any person entitled to notice under this chapter or whom the judge finds to have a direct interest in the case or in the work of the court.”

¶ 8 For the first time on appeal, N.P. contends that his rights to a public hearing under the First Amendment to the United States Constitution (“Congress shall make no law ... abridging the freedom ... of the press....”) ⁵ and article I, section 10 of the Washington Constitution (“Justice in all cases shall be administered openly....”) ⁶ were violated when the trial court followed the procedure under RCW 26.33.060 without applying the Ishikawa requirements before it closed the courtroom.⁷ A.K. argues that N.P.'s appeal should be rejected because (1) adoption records and hearings are an exception to the right to a public hearing and RCW 26.33.060 properly balances various parties' interests while acting in the best interest of the child; (2) RCW 26.33.060 closes the courtroom only where no party asks that it be opened; ⁸ and (3) N.P. fails to show actual prejudice resulting from the courtroom being closed. We conclude that N.P. raises a constitutional claim of error but agree with A.K. that N.P. does not demonstrate actual prejudice and therefore may not raise this claim for the first time on appeal.

¶ 9 Article I, section 10 guarantees the public open access to judicial proceedings and court documents in civil and criminal cases. In re Dependency of J.A.F., 168 Wash.App. at 660, 278 P.3d 673 (citing Dreiling v. Jain, 151 Wash.2d 900, 908, 93 P.3d 861 (2004)). Similarly, the First Amendment “preserves a right of access to court proceedings and records.” Tacoma News, Inc. v. Cayce, 172 Wash.2d 58, 65, 256 P.3d 1179 (2011). “This court has clearly and consistently held that the open administration of justice is a vital constitutional safeguard and, although not without exception, such an exception is appropriate only under the most unusual circumstances and must satisfy the five requirements as set forth in [ Ishikawa ].” In re Detention of D.F.F., 172 Wash.2d 37, 41, 256 P.3d 357 (2011).

¶ 10 Under Ishikawa, before courts order restrictions on access to criminal hearings or the records from criminal hearings, five requirements must be met: (1) the proponent of closure must make a showing of the need for a closure and, when closure is sought based on an interest other than the right to a fair trial, a serious and imminent threat to that interest must be shown; (2) anyone present when the closure motion is made must be given an opportunity to object to the closure; (3) the court, the proponents of, and the objectors to the closure should analyze whether the proposed method for curtailing open access would be the least restrictive means available and effective in protecting the threatened interests; (4) the court must weigh the competing interests of the defendant and the public; (5) the order must be no broader in its application or duration than necessary to serve its purpose. Ishikawa, 97 Wash.2d at 37–39, 640 P.2d 716. In addition, the trial court must enter specific findings justifying its closure order. State v. Bone–Club, 128 Wash.2d 254, 260, 906 P.2d 325 (1995); J.A.F., 168 Wash.App. at 661, 278 P.3d 673. Courts have held that the Ishikawa procedure applies to civil proceedings. See D.F.F., 172 Wash.2d at 41–42, 256 P.3d 357 (applying Ishikawa to civil involuntary commitment proceeding).

¶ 11 A.K. contends adoption hearings are nonetheless an exception to the right to a public hearing. He contends that cases cited by N.P. in which courts have held that Ishikawa applies are distinguishable, pointing out that they consist of criminal cases; ⁹ a case involving civil commitment (effectively incarceration...