IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Dependency of 

### ) No. 80004-3-I A.N.G., a minor child, 

### ) ) DIVISION ONE VALERIE ANN GONZALES, 

### ) ) PUBLISHED OPINION Appellant, 

### )

) v. 

### )

) STATE OF WASHINGTON, 

### ) DEPARTMENT OF CHILDREN, 

### ) YOUTH, AND FAMILIES, 

### )

Respondent.

___________________________________ 

### ) FILED: March 23, 2020

HAZELRIGG, J.

—Valerie A. Gonzales1 is the mother ofA.N.G., a medically complex child. The Department of Children, Youth and Families2 (the department) initiated dependency proceedings based on concerns about Gonzales’ ability to appropriately respond toA.N.G.’s specialized medical needs. The case proceeded to a bench trial which resulted in termination of Gonzales’ parental rights. The judge presiding over the termination trial previously served as the Assistant Attorney General (AAG) for the department who sought termination of Gonzales’ rights as to her two older children. Gonzales appeals the termination ruling as to A.N.G. on numerous grounds, including violation of her rightto due process based

1 Appellant’s motion to change the case caption and use initials in the opinion is denied. 2 In July 2018, the Department of Social and Health Services (DSHS) transferred child welfare responsibilitiesto the Departmentof Children, Youth and Families. RCW43.216.906.No. 80004-3-1/2

on thejudge’sfailure to recuse himselfas a result ofthe role he played in herprior terminations. We agree with Gonzales as to the due process claim, reverse and remand fora newtrial and do not reach herotherassignments oferror.
FACTS A.N.G. was born in the fall of 2016 to Gonzales3 three months premature and with significant medical needs. Following his discharge from the hospital, Gonzales missed multiple medical appointments forA.N.G. and he lostweight. In July 2017, the department filed a dependency petition and the court removed A.N.G. from Gonzales’ care due to herfailure to meet his medical needs. In October2017, Gonzales agreed to dependency, acknowledging parental deficiencies involving her history of substance abuse and herfailure to schedule and attend medical appointments for A.N.G. Gonzales further agreed to a dispositional plan meantto address concerns about substance abuse. The court ordered herto regularly attend A.N.G.’s medical appointments as scheduled and to demonstrate an abilityto applythe skills necessaryto care for her child. Atrial was setto adjudicate termination of Gonzales’ parental rights. Prior to Gonzales’ arrival on the morning oftrial, the AAG forthe department informed thejudge ofhis involvement in the priorcase astheAAG whosought and obtained thetermination orders astothetwo olderchildren. Gonzales’ attorney advised the judge, “you were opposing counsel at the time and [Gonzales] did default at that time. I understand fortoday’s proceedings that she is on herway and would like

~The alleged fatherofA.N.G. was identified bythe departmentand his parental rightswere terminated in separate proceedings unrelated to this appeal. -2-No. 80004-3-1/3

to proceed with the trial today.” The judge indicated that he did not remember Gonzales orthe priorproceedings. Gonzales’ attorneyasked thatthejudge inform the parties if he recognized Gonzales when she arrived. When Gonzales arrived later, thejudge informed the parties he did not have
a recollection of Gonzales but did not address the potential conflict or obtain a waiver. The courtthen heard testimonyfrom Gonzales and a numberofwitnesses, including A.N.G.’s caregivers, social workers and guardian ad litem. The court marked and admitted a numberofexhibits; among those marked, but notadmitted,
weretermination orders astotwo ofGonzales’ olderchildren, drafted bythejudge in his capacity as theAAG forthe department. Atthe conclusion oftrial, the court issued written findings that the department had met its burden of proving all elements of RCW 13.34.180(1), that Gonzaleswas unfit, and thattermination was in A.N.G.’s best interests. The judge entered an order terminating Gonzales’ parental rights as to A.N.G. Gonzales timely appealed.
ANALYSIS Gonzales argues her right to an impartial judge was violated, extrinsic evidence was improperlyconsidered, that many ofthe court’sfindings offactwere not supported by substantial evidence, the court erred by considering the best interest of the child when determining parental fitness, and that cumulative error deprived her ofthe right to a fair trial. We first address Gonzales’ claim that the judge violated her constitutional rightto due process by not recusing himself, or in the alternative, obtaining a knowing, voluntary and intelligent waiver from Gonzales.

-3-No. 80004-3-1/4

“Parents have a fundamental liberty and privacy interest in the care and custody oftheir children.” In reWelfareofR.H., 176 Wn. App. 419, 425, 309 P.3d 620 (2013). Due to the constitutional rights at stake in a termination proceeding, parents are provided greater due process rights there than in other stages of dependency orothercustody proceedings. k~. This case implicates due process under the state and federal constitution because “[a] fairtrial in afairtribunal is a basic requirement ofdue process.” In re Murchison, 349 U.S. 133, 136, 75 5. Ct. 623, 99 L. Ed. 942 (1955); accord State
ex rel. McFerran v. Justice Court of Evanc~elical Starr, 32 Wn.2d 544, 549-50, 202 P.2d 927 (1949). Due process requires the absence ofan unconstitutional “risk of bias.” Rippo v. Baker, 137 S. Ct. 905, 907, 197 L. Ed. 2d 167 (2017). The United States Supreme Court has explained that the federal Due Process Clause has been implemented by objective standards that do not require proofof actual bias, justthe risk ofsuch bias. Williams v. Pennsylvania, 136 5. Ct. 1899, 1905, 195 L. Ed. 2d 132 (2016). The inquiry requires that “[t]he Courtasks notwhetherajudge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” j~ (internal citations omitted) (emphasis omitted). The Supreme Court has made clear that due process may be violated
even ifajudge is not actually biased. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 106 S. Ct. 1580,89 L. Ed. 2d 823 (1986). Further, RCW 13.34.090 establishes that any party involved in parental termination proceedings has a right “to receive

-4-No. 80004-3-1/5

a decision based solely on the evidence adduced at the hearing, and to an unbiased factfinder.” In Gonzales’ case, the trial court judge served as an AAG in Whatcom County prior to his appointment to the Whatcom County Superior Court bench. While serving as an AAG, the judge represented the State in dependency and termination cases concerning Gonzales’ two older children. The record contains evidence ofthis fact, independent ofthe assertions of counsel priorto the start of trial, in the form ofthe final orders terminating Gonzales’ parental rights to those children. While not admitted as trial exhibits, the record suggests thatthe orders
were considered bythe court in reaching its termination decision as to A.N.G. Thejudge explained that during the dependency at issue here, priorto his judicial appointment, he was “wholly reassigned to Western Washington University” and he had not been assigned toA.N.G.’s dependencycase. As such, he did not believetherewas a basisforrecusal. Gonzales’ attorneydid not request recusal but onlyasked thatthejudge advise the parties if he recognized Gonzales when she arrived. This discussion was conducted on the record, but outside Gonzales’ presence, priorto herarrival in court. When Gonzales arrived, thejudge only stated, “Morning Ms. Gonzales. And to answer the question you raised preliminarily here, [defense counsel], um, I do not recall byseeing yourclient [here] at all.” This brief comment is the only reference to possible bias or recusal while Gonzales was present. There is nothing in the record to suggest that Gonzales
was advised by anyone as to thejudge’s role in the termination of her rights as to herolderchildren or her rightto seek his recusal in the instant case.

-5-No. 80004-3-1/6

The State cites to State v. Dominquez, where this court upheld a judge’s decision not to recuse himself after having previously represented the defendant
as a client and later prosecuting him. 81 Wn. App. 325, 326, 914 P.2d 141 (1996). This case is distinguishable. Dominquez was a case that focused on the appearance of fairness doctrine, not the due process clause which is what Gonzales has argued here. ki. at 329. Additionally, in Dominguez the defendant
was clearly aware ofthejudge’s prior involvement and had actuallyfiled a motion for removal ofthejudge after having alreadyfiled an affidavit of prejudice against anotherjudge. Unlike Dominciuez, it is not clearthat Gonzales was aware ofthe judge’s involvement in her prior cases. Further, it appears that a significant fact for Division Ill was thatthejudge in that case had both previously represented the defendant and prosecuted him. This was notthe case for Gonzales where the judge’s only prior involvement was against her interests in that he was seeking termination of her parental rights. Another important distinction between the case at hand and Domin.quez isthatcriminal proceedings are not inherently interrelated the way parental termination proceedings are. Gonzales properly points out that the priortermination cases involved that give rise to the recusal analysis here are closely related to her current case. Testimony as to the prior dependencies and termination orders where the judge
was the AAG was admitted against Gonzales in the case regarding A.N.G. Gonzales objected tothistestimony regarding herdeficienciesfrom the priorcases and the judge overruled her. There was also discussion ofA.N.G.’s relationship and placement with the older siblings who were living with a relative due to the

-6-No. 80004-3-1/7

terminations. Further, Gonzales’ entire parental history was relevant in terms of evaluating hercurrentfitnessto parentA.N.G. ~ In re Dep. of Brown, 149Wn.2d 836, 841, 72 P.3d 757 (2003); See also In re Ross, 45 Wn.2d 654, 657, 277 P.2d 335 (1954). The State focuses on the appearance offairness doctrine which is distinct from the due process argument raised by Gonzales. “The appearance offairness doctrine provides greater protection. It permits litigants to make fair trial claims based on violations of the Code of Judicial Conduct

. . . regardless of whether those claims implicate due process.” Statev. Blizzard, 195Wn. App. 717,725,381 P.3d 1241 (2016). “Our due process analysis requires a different approach. Denial ofthe constitutional rightto a fairtribunal is a structural errorthat requires reversal regardless of prejudice.” ki. at 727. Here, as in Blizzard, Gonzales is raising the issue for the first time on appeal as a due process challenge and the question is properly before this court under RAP 2.5(a)(3). j~, We agreewith Gonzales thatdue process analysis is the properframework for the question presented. The record reflects that evidence from the prior proceedings was relied upon in this case and, as such, thejudge’s involvement in those caseswas relevantto the due process analysis. The record also raises the question ofwhether Gonzales was even aware ofthisjudge’s involvement in her prior case as she proceeded to trial before him. With a record devoid of any evidence of a knowing, voluntary and intelligent waiver by Gonzales, much less any indication that she was ever advised as to the issue by her counsel, the AAG
orthe court, we must reverse. The proper procedure in this situation is to conduct

-7-No. 80004-3-1/8

a colloquy with the parent as to their right to seek recusal based on the potential bias, thereby establishing a clear record of advisement and a knowing, voluntary, and intelligentwaiver.4 The only discussion on the record in this case was between thejudge and attorneys before Gonzales was present in court and the judge’s comment upon herarrival was so vague as to be an insufficient basis from which to inferthat she had been properly appraised ofthe matter. There is no indication that Gonzales’ attorney addressed the issue with their client and the judge did not raise it with Gonzales sua sponte after being made aware of the potential need for recusal. Because we hold this was reversible error, we do not take up Gonzales’ other assignments oferror. Reversed and remanded fora newtrial.

—~



# L~, I. (ci

~ We recognize that some termination orders are entered as a result of default by the parent, which could appearto conflictwith ourdirectiveto obtain a properwaiverfrom that parent where recusal is at issue. In such situations, the court should err on the side of protecting the parent’sdue process rights in this highlyspecificcontextoftermination, recuseand seekadifferent judgeforentryofthe defaultorder. WE CONCUR: 

# c~~4

-8-