Tucker v. State (In re Dependency of J.A.F.)

• Decision Date: 11 June 2012
• Docket Number: Nos. 67022–1–I, 67023–9–I, 67024–7–I, 67025–5–I, 67026–3–I, 67027–1–I.,s. 67022–1–I, 67023–9–I, 67024–7–I, 67025–5–I, 67026–3–I, 67027–1–I.
• Court: Washington Court of Appeals
• Parties: In the Matter of the DEPENDENCY OF J.A.F., E.M.F., V.R.F., Minor Children. Marta Tucker and Michael Fleming, Appellants, v. State of Washington, Department of Social and Health Services, Respondent.

168 Wash.App. 653

278 P.3d 673

In the Matter of the DEPENDENCY OF J.A.F., E.M.F., V.R.F., Minor Children.Marta Tucker and Michael Fleming, Appellants,

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

Nos. 67022–1–I, 67023–9–I, 67024–7–I, 67025–5–I, 67026–3–I, 67027–1–I.

Court of Appeals of Washington, Division 1.

June 11, 2012.

Jan Trasen, Washington Appellate Project, Casey Grannis, Nielsen Broman & Koch, Seattle, WA, for Appellants.

Michael S. Majors, Office of Attorney General, Everett, WA, for Respondent.

LEACH, C.J.

[168 Wash.App. 656]¶ 1 Michael Fleming and Marta Tucker appeal orders terminating their parental rights to their three children, V.F., J.F., and E.F. Both assert that the trial court violated article I, section 10 of the Washington State Constitution by closing a portion of the termination trial to the public. Because they did not raise this issue in the trial court and do not show actual prejudice, they cannot assert it now. Fleming and Tucker also raise issues regarding notice requirements under the Indian Child Welfare Act of 1978 ¹ and the trial court's findings that continuation of the parent-child relationship would diminish prospects for early integration into a stable and permanent home and that termination is in the children's best interests. Because these other claims lack merit, we affirm.

FACTS

¶ 2 Fleming and Tucker are the biological parents of V.F., born February 2, 1998, and twins E.F. and J.F., born July 25, 2001. Each of the children exhibits challenging behavior,requiring skilled parenting.² When the Department of Social and Health Services (DSHS) became involved with the family in 2008, it discovered unsafe living conditions, lack of parental control, substance abuse by Fleming, and a lack of parenting skills on the part of both parents. After the parents failed to participate voluntarily in remedial services, DSHS filed dependency petitions for each of the children. V.F., E.F., and J.F. were removed from their parents' custody on December 5, 2008, and on February 11, 2009, the trial court entered agreed orders of dependency. These orders noted that Tucker and Fleming admitted to the following parental deficiencies: (1) Fleming's alcoholism interferes with his ability to parent; (2) conditions at the family's house are unsafe and unsanitary; and (3) “[t]he parents are unable to adequately intervene or discipline the children's behavior, including fighting and bedwetting.” The parents also admitted that the children possibly suffer from “mental health issues.”

¶ 3 The court ordered Fleming to complete a drug and alcohol evaluation and undergo random urinalysis testing. The court required Tucker to submit to a psychological evaluation and attend individual and family counseling. Both parents were ordered to participate in parenting classes, coaching, and education and to “obtain and maintain a safe, stable, drug/alcohol/violence free living environment appropriate for a child.” The court also provided the parents with two supervised visits per week.

¶ 4 In a permanency planning review order entered in October 2009, the trial court stated that Fleming and Tucker had complied with the court-ordered services. The court provided for further parenting instruction and approved a primary plan of adoption with an alternative plan of returning the children to the care of Fleming and Tucker. At a review hearing in February 2010, the court found (1) the parents would not gain any benefit from additional parenting classes because they were “either unwilling or unable to independently apply the skills taught”; (2) “[t]he current visitation schedule is not working, ... has a detrimental impact on the children[, and r]eports of recent visitation continue to be extreme in that some visits are really good, and other visits are real disasters”; and (3) “[c]ontinuing the current situation of visitation will result in more damage to the children.” As a result, the court reduced the parents' visitation schedule to two supervised visits per month. At a full review hearing in April 2010, the State reported that Tucker had not engaged in any mental health counseling and that Fleming had relapsed and was drinking again. The court found that Fleming and Tucker had made no progress to correct their parental deficiencies.

¶ 5 In June 2010, DSHS filed a termination petition for each of the children. After a nine-day trial in January and February 2011, during which the court heard testimony from Fleming, Tucker, the social worker, the parents' psychological evaluators, the visit supervisors, the guardian ad litem, and the children's therapists, the trial court entered orders terminating Tucker's and Fleming's parental rights as to each child. The trial court made specific findings, including the following disputed findings:

2.2 There is no reason to know that the child is an Indian child as defined in 25 U.S.C.1903(4), and the Indian Child Welfare Act does not apply to these proceedings.

....

2.118 Child's Early Integration: Continuation of the parent-child relationship clearly diminishes the child's prospect for early integration into a stable and permanent home.

....

2.120 [J.F.] has been in different foster care placements since she was at Ryther Child Center, but she also needs to have some stability and permanence which cannot occur when she has ongoing visitation with her parents.

....

2.125 [The guardian ad litem] testified that in her opinion it would be in the best interests of all the children to terminate the parental rights. The Court agrees with that opinion. It is overwhelmingly supported by the other evidence in this case.

....

2.134 Best Interest of the Child: It is in the best interest of the child that all of the parental rights of Marta Lucia Tucker and Michael Glenn Fleming be terminated under RCW 13.34.180 and .190.

Fleming and Tucker appeal.

ANALYSIS

The Public's Right to Open Proceedings

¶ 6 For the first time on appeal, Fleming and Tucker contend that the trial court committed constitutional error under article I, section 10 of the Washington Constitution and the First Amendment by closing the proceedings to the public during the testimony of Susan Harris, clinical director of Phoenix Recovery Center. Generally, a party asserting a constitutional error for the first time on appeal must show that the alleged error actually affected that party's rights at trial.³ Because Fleming and Tucker do not make this showing, we decline to review this issue.

¶ 7 DSHS called Harris to testify about Fleming's attendance at a Phoenix inpatient alcohol rehabilitation program. Before Harris testified, however, DSHS told the trial court that Harris believed federal law required a court order before she disclosed information about Fleming's treatment. DSHS requested an order authorizing disclosure under 42 C.F.R. § 2.64.⁴ After considering DSHS's application, the trial court ordered Harris to testify. All parties agreed that federal law required the trial court to close Harris's testimony to the public. The trial court stated,

I'm going to hereby order that the courtroom be closed at this point, and I don't think the clerk needs to post the sign because ... all those present are authorized to be here and should anybody else enter the courtroom, I'll direct that that person depart. So we are now in a closed hearing under the law.

¶ 8 Harris testified over two days. Before her testimony resumed on the second day, the trial court again asked if anyone objected to the closed proceeding. No one did. The trial court noted,

One of the reasons I'm taking these statements explicitly on the record here is that I would like to avoid any situation where there is some objection raised at some later time in this case that the testimony of Ms. Harris should have been taken in open court or something of that nature.

Tucker's attorney stated, “I think [Tucker would] actually prefer the whole trial be closed, so I don't think there's any issue at all.” The trial court's written order requiring Harris to testify stated, “[T]he courtroom shall be closed to the public during any such testimony, and only the parties, the judge and necessary court personnel shall be present.” The court sealed that part of the transcript containing Harris's testimony. At no point during these proceedings did anyone mention the public's constitutional right to open proceedings under article I, section 10.⁵

¶ 9 Article I, section 10 provides that “[j]ustice in all cases shall be administeredopenly, and without unnecessary delay.” This provision guarantees the public open access to judicial proceedings and court documents in both civil and criminal cases.⁶ Similarly, the First Amendment “preserves a right of access to court proceedings and records.” ⁷However, the public's access to judicial proceedings may be limited if the trial court determines that closure is appropriate after applying and weighing the five factors set forth in Seattle Times Co. v. Ishikawa.⁸ In addition to considering these factors on the record, the trial court must enter specific findings justifying its closure order.⁹ We review claims based on article I, section 10 de novo.¹⁰

¶ 10 Although neither party objected to the closure below, RAP 2.5(a)(3) allows a party to raise for the first time on appeal a manifest error affecting this constitutional right.¹¹ To demonstrate that an asserted error is manifest, the appellant must show actual prejudice, ¹²—which means “ ‘the asserted error had practical and identifiable consequences in the trial of the case.’ ” ¹³

¶ 11 Fleming and Tucker have demonstrated a violation of article 1, section 10. The trial court closed part of the proceedings without first applying the Ishikawa factors. The court did not weigh Fleming's interest in the privacy of his drug treatment records against the public's interest in open and accessible courts. Nor did the court articulate findings justifying the...