Welfare of McGee, In re

• Decision Date: 06 February 1984
• Docket Number: No. 7116-9-II,7116-9-II
• Citation: 679 P.2d 933,36 Wn.App. 660
• Parties: In re the WELFARE OF Denise McGEE, A Minor.
• Court: Washington Court of Appeals

Page 660

36 Wn.App. 660

679 P.2d 933

In re the WELFARE OF Denise McGEE, A Minor.

No. 7116-9-II.

Court of Appeals of Washington Division 2.

Feb. 6, 1984.

Review Denied May 24, 1984.

Joe Quaintance, Tacoma, for appellant.

Terrence F. McCarthy, Tacoma, for respondent.

WORSWICK, Judge.

Joan Arnold appeals a Pierce County Juvenile Court order terminating her parental rights as the mother of Denise McGee. RCW 13.34.180 et seq. We affirm.

Ms. Arnold's attempt, by affidavit of prejudice, to disqualify the court commissioner who heard the case was rejected because of Pierce County Local Rule 12(d), adopted pursuant to CR 83. It provides:

Affidavits of prejudice with reference to court commissioners will not be recognized, the remedy of a party being a motion for revision under RCW 2.24.050.

Ms. Arnold contends the rule is invalid because it violates her rights to equal protection and a fair hearing. We disagree, and hold the rule valid.

There is no constitutional right to the peremptory removal of a judge. ¹ See State v. Bolton, 23 Wash.App. 708, 598 P.2d 734 (1979). The right is statutory, and the relief is limited to what the statute confers. Whether there is such a right in any given circumstance is to be determined by examining the statute and related court rules. See State v. Cottrell, 92 Wash.2d 606, 599 P.2d 1295 (1979).

RCW 4.12.040 ² provides only for disqualification of judges. Had the Legislature intended to include commissioners, it would have done so specifically, as it has in other instances. ³ It created an alternative remedy instead, providing under RCW 2.24.050 for a revision hearing before a judge as a matter of right. There is no reason to assume that a revision hearing would not afford an adequate remedy. Although RCW 2.24.050 speaks only of a hearing on the record, the court nevertheless has full jurisdiction over the case and its power of review is essentially unlimited. It may conduct whatever proceedings it deems necessary to resolve the matter. In re Smith, 8 Wash.App. 285, 505 P.2d 1295 (1973). Because Ms. Arnold appealed the commissioner's decision to this court and did not seek a revision hearing, her contention that the revision remedy is ineffective is unpersuasive speculation. We see no reason to declare invalid a local rule which the Superior Court judges obviously consider necessary to the orderly discharge of their responsibilities.

Ms. Arnold next contends that the commissioner erred during the hearing by conducting an interview with Denise in chambers from which she and her attorney were excluded. We agree this was improper.

Apparently the commissioner felt he had authority to conduct the interview by reason of RCW 26.09.210, which provides, in part:

Interview with child by court ... The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation privileges. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be made part of the record in the case....

He was mistaken. This statute deals only with custody and visitation issues in a dissolution proceeding. RCW 13, which governs termination proceedings, contains no such provision. This undoubtedly is so because in these cases it is essential that all of the evidence be presented in open court, subject to cross-examination and to refutation by other evidence. In re Moseley, 34 Wash.App. 179, 184, 660 P.2d 315 (1983); In re Akers, 22 Wash.App. 749, 592 P.2d 647 (1979), overruled on other grounds, In re Hall, 99 Wash.2d 842, 664 P.2d 1245 (1983). Although the interests of the child are of paramount concern, the parents have a cognizable and substantial interest in the child which is constitutionally protected, and there must be proper regard for their due process rights. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Halsted v. Sallee, 31 Wash.App. 193, 639 P.2d 877 (1982).

However, the error was not prejudicial and error without prejudice is no basis for reversal. Thomas v. French, 99 Wash.2d 95, 659 P.2d 1097 (1983). The interview produced nothing more than confirmation that Denise wished to remain in Tacoma with the Smiths. This was cumulative; Ms. Arnold acknowledged as much in her testimony.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Affirmed.

PETRICH, C.J., and PETRIE, J., concur.

1 That is the nature of the disqualification provided for in RCW 4.12.040. Ms. Arnold, herself, asserts that no actual prejudice need be shown; all that is required is an allegation that the party...