          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In re the Dependency of:                      )         No. 71266-7-1
K.L.D. (DOB: 4/7/03), A.Z.D. (DOB:            )         (Consolidated with Nos.
5/5/04), and C.K.D. (DOB: 11/21/05),          )          71267-5-1 and 71268-3-1)

                       Minor Children.        )         DIVISION ONE          1-0
                                                                                      o
                                                                                    C/iO


STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND                                                      en    o-n

HEALTH SERVICES,                                                                    :--or


                        Respondent,                                                  £>°
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                                                                                    --la




ASHLEY TODD,                                  )         UNPUBLISHED

                       Appellant.             )         FILED: August 11, 2014




          Cox, J. - "A parent has a right to a meaningful opportunity to be heard at a

hearing to terminate parental rights."1 Here, Ashley Todd, who was in Idaho and

had outstanding warrants in Washington, chose not to attend the termination

hearing in person in Snohomish County. The trial court denied her motion to

testify by telephone. Because the denial did not deny her due process of law, we

affirm.




        1 In re Dependency of M.S., 98 Wn. App. 91, 92, 94, 988 P.2d 488 (1999)
(citing RCW 13.34.090(1) ("Any party has a right to be represented by an
attorney in all proceedings under this chapter, to introduce evidence, to be heard
in his or her own behalf, to examine witnesses, to receive a decision based solely
on the evidence adduced at the hearing, and to an unbiased fact finder.")).
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/2


       The unchallenged findings of fact provide context and are verities on

appeal.2

       K.L.D., A.Z.D., and C.K.D. are the biological children of Ashley Todd and

Curtis Drakeford. The State removed the children from their parent's custody in

November 2010. They were returned to Todd's care two times before she and

Drakeford absconded with the children out of state in June 2012. The children

were located with their parents in Montana.

       After this incident, the State removed the children from their parents' care

and did not return them to either parent. Todd, who had previously engaged in

support services and parenting classes, stopped engaging in these services after

the incident and had no in-person contact with the children.

       The Department of Social and Health Services petitioned for termination of

the parent-child relationship against both parents in October 2012. The parents

were personally served with the petition. Additionally, the State notified the

parents that they would need to attend the termination trial, so that it could take

their testimony.

       On the first day of the termination trial, the parents were not present.

Counsel moved to allow Drakeford to appear and testify by telephone. Drakeford

was not present because he was in California and had outstanding warrants in

Washington.




       2 In re Dependency of J.A.F.. 168 Wn. App. 653, 667, 278 P.3d 673
(2012).
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/3


       Todd's counsel joined this motion. Her counsel explained that Todd was

in Idaho and also had outstanding warrants in Washington. The court denied the

motion, and the case proceeded to trial.

       After a multiple-day trial, the court ordered termination of the parent-child

relationship for both parents.

       Only Todd appeals.

                                   DUE PROCESS

       Todd argues that her procedural due process rights were violated when

the trial court terminated her parental rights without allowing her to testify at trial

by telephone. We disagree.

       Under CR 43, testimony of witnesses is generally taken orally in open

court. But "[f]or good cause in compelling circumstances and with appropriate

safeguards, the court may permit testimony in open court by contemporaneous

transmission from a different location."3 The plain words of this rule make the

determination by the court discretionary.

       Here, the trial court gave the following explanation when it denied Todd's

motion to appear by telephone:

               Termination trials are some of the hardest venues for this
       Court to exercise its judgment in. I rely upon the parties being
       present so I can view them, watch them, listen to them and make
       determinations of credibility. I can't do that over the telephone. I
       don't know who is around those people, I don't know what activity
       they're engaged in, I don't know if they're reading other materials. I
       have no way to judge their credibility and what they're presenting to
       me.




         CR43.
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/4


              As I indicated, I have made exceptions, particularly in
       termination trials, but in this case I'm going to decline to exercise
       my discretion in this matter mainly for the reason that the parties
       have exited themselves from the state of Washington by their own
       accord and refuse to submit to the jurisdiction of this Court. They
       had notice of this trial. There's nothing that has been indicated to
       me that they can't make themselves available, they just simply
       refuse to. Based upon that refusal, I'm not willing to extend any
       discretion to them. So the parents' motion to appear telephonically
       is denied.[4]

       Todd does not argue that the trial court abused its discretion when it

denied her motion to appear by telephone under this rule. Such an argument

would have been unsuccessful because the reasons stated by the court were

well within the proper bounds of discretion.

       Instead, she argues that her due process rights were violated because

she was not able to testify at trial by telephone.

       This court reviews de novo alleged due process violations.5

       In termination proceedings, due process requires that parents have notice,

an opportunity to be heard and defend, and the right to be represented by

counsel.6

       The right to be heard "ordinarily includes the right to be present."7 In the

context of incarcerated parents, "The right to appear personally and defend is not




       4 Report of Proceedings (Sept. 30, 2013) at 7-8.

       5 Post v. City of Tacoma. 167 Wn.2d 300, 308, 217 P.3d 1179 (2009).

       6 In re Welfare of S.E., 63 Wn. App. 244, 250, 820 P.2d 47 (1991).

       7 In re Welfare of Houts, 7 Wn. App. 476, 481, 499 P.2d 1276 (1972).
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/5


guaranteed by due process so long as the prisoner was afforded an opportunity

to defend through counsel and by deposition or similar evidentiary techniques."8

       "The proper process to ensure protection of the parent's due process

rights depends on the balancing of three factors: (1) the parent's interest, (2) the

risk of error created by the procedures, and (3) the State's interest."9

       For the first factor, Todd has a fundamental liberty interest in the custody

and care of her children.10 "When the state moves irrevocably to sever the

parent-child bond, the rights of parents to protection from 'unwarranted

usurpation' by the state are guaranteed by the Fourteenth Amendment," and the

proceedings must be "'fundamentally fair.'"11 But this interest is "not absolute

and must be balanced against the other factors."12

       For the third factor, the State has a "vital interest in protecting the welfare

of children."13 "[T]he State and the child have a strong interest not only in




       8 In Interest of Darrow. 32 Wn. App. 803, 808, 649 P.2d 858 (1982).

       9 M.S., 98 Wn. App. at 94.

       10 In re Dependency of K.D.S., 176 Wn.2d 644, 652, 294 P.3d 695 (2013).

       11 In re Welfare of J.M.. 130 Wn. App. 912, 921, 125 P.3d 245 (2005)
(quoting Lassiter v. Dep't of Soc. Servs.. 452 U.S. 18, 33-34, 101 S. Ct. 2153, 68
L. Ed. 2d 640 (1981)).

       12 M.S., 98 Wn. App. at 95.

       13 Id.
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/6


establishing a stable and permanent home for the child, but also in doing it as

soon as possible."14

      Additionally, the State has a "fiscal and administrative interest in reducing

the cost and burden of such [termination] proceedings."15 The State argues that

trial counsel is "hampered in presentation of the case by testimony by phone, for

example, by the inability to present documents or other evidence to the person

for review." The State also asserts that "[tjestimony by phone costs the court,

especially when a parent may give lengthy testimony by phone from out of state."

       Given these competing interests, the second factor, the lack of risk of error

presented by the procedure followed in this case, is dispositive.

       In In re Dependency of M.S., this court concluded that a parent's right to

due process was properly protected even though he was not able to testify by

telephone when he was incarcerated.16 This court determined that the "risk of

error created by the procedures used in this case was minimal."17 It gave the

following explanation:

       We note that [the parent] does not challenge on appeal any of the
       factual findings by the trial court. In fact, he agrees that they
       accurately reflect the evidence. Moreover, [the parent's] counsel
       examined witnesses and presented other evidence at the hearing.
       At that hearing, his trial counsel made an offer of proof adopting the
       testimony of the guardian ad litem as the same that [the parent]

       14 In re Dependency of C.R.B.. 62 Wn. App. 608, 615, 814 P.2d 1197
(1991).

       15 In re Dependency of T.R., 108 Wn. App. 149, 159-60, 29 P.3d 1275
(2001).

       16 98 Wn. App. 91, 92, 988 P.2d 488 (1999).

          17 Id. at 95.
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/7


         would give had he testified. Finally, as an additional safeguard, the
         trial court offered [the parent] the opportunity to present his affidavit
         after the hearing and termination order. He failed to do so. And, as
         of the time of oral argument on this appeal, counsel was unable to
         indicate what more [the parent] could nave said to the trial court
         that was not already in the record.[18]

         While not all of the facts in M.S. are the same as this case, the same

conclusion is appropriate. Todd was represented by counsel during the

termination trial. Counsel filed a trial brief, presented an opening statement,

cross-examined the State's witnesses, made objections, and presented closing

argument. Counsel had the opportunity to present other evidence but declined.

         Additionally, there is no dispute that Todd was properly given notice for

the termination proceeding. Had she personally appeared in court, there is no

reason to believe that she would not have had the opportunity to testify during

the trial.

         And Todd's counsel made no offer of proof or other statement indicating

what testimony she would have provided to change the outcome of the trial.

Moreover, Todd did not request to testify by telephone until the first day of the

trial.

         Finally, there is no challenge to the findings of fact of the court. They are

verities on appeal.

         Overall, the procedure was fundamentally fair. Under these

circumstances, the trial court did not violate Todd's due process rights by

denying her motion to testify by telephone.


         18
              Id.




                                             7
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/8


       Todd argues that this case is distinguishable from M.S. But these

distinctions are not meaningful.

       Todd points to the fact that the parent in M.S. was able to present his

version of the facts because the parent adopted the testimony of the guardian ad

litem as the same the parent would give.19 Additionally, the trial court gave the

parent the opportunity submit an affidavit summarizing his testimony.20 While

these factual differences may have reduced the risk of error in M.S.. other facts

are present in this case, as just discussed, that reduced the risk of error here.

Thus, these factual differences do not change the result. Further, like M.S.. Todd

does not indicate what else she would have said that was not already in the

record.21

       Todd next asserts that if she was allowed to testify by telephone, "[t]he risk

of error is reduced." She contends that she would have been able to "'present

[her] version ofthe facts'" and challenge the evidence that the State presented.22
She asserts that the "one-sided presentation of evidence" is reflected by the

findings offact, and the findings may have been different had Todd testified.23




       19 Reply Brief of Appellant at 3-4 (citing M.S., 98 Wn. App. at 95).

       20 Brief of Appellant at 12 (citing M.S.. 98 Wn. App. at 95).

       21 M.S.. 98 Wn. App. at 95.

       22 Id. (citing In re Welfare of Haqen. 21 Wn. App. 169, 173, 584 P.2d 446
(1978)).

       23 Id. at 18-19.



                                          8
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/9


        But Todd was able to present "her version of the facts" and challenge the

State's evidence through her counsel throughout the trial. The fact that she did

not recount "her version of the facts" at the trial, in person, was her choice. The

presentation of evidence was not "one-sided." Further, as previously discussed,

it is not clear what testimony Todd would have provided that would have changed

the outcome of the trial.


       Todd next cites In re Welfare of R.H. for the principle that given the

parents' fundamental constitutional rights at stake in termination hearings, "'due

process requires that parents have the ability to present all relevant evidence for

the juvenile court to consider prior to terminating a parent's rights.'"24 That case

analyzed whether the trial court erred by failing to grant a motion to continue the

termination trial to allow for a home study.25

       Here, the trial court did not take away Todd's ability to present all relevant

evidence. As just discussed, the court denied her the ability to present her

testimony by telephone. Thus, R.H. is not helpful.

       Todd also contends that her failure to attend to the outstanding warrants in

Washington "should have no bearing on her right to present a defense through

her testimony at the parental rights termination case." Todd's failure to address

the outstanding warrants was the basis for the trial court's decision to not

exercise its discretion and allow telephonic testimony under CR 43. But that rule



       24 Reply Briefof Appellant at 1 (quoting In re Welfare of R.H., 176 Wn.
App. 419, 425-26, 309 P.3d 620 (2013)).

       25 R.H., 176 Wn. App. at 423.
No. 71266-7-1 (Consolidated with Nos. 71267-5-1 and 71268-3-l)/10


is separate from the only issue on appeal—whether the procedure used in this

case was fundamentally fair.

       She also contends, "Punishing Todd by refusing to hear her testimony as

a result of her recalcitrance in turning herself into the criminal authorities in other

cases does not serve to preserve or decrease the risk of an erroneous

deprivation of parental rights in the case at hand." But the risk of an erroneous

deprivation was low for the reasons already discussed.

       Finally, Todd cites two extra jurisdictional cases to support her assertion

that her due process rights were violated.26 But both of these cases involved an

incarcerated parent.27 Thus, they are not helpful here.

       We affirm the order of termination.

                                                            Cot,3*

WE CONCUR:




                                                              ck*A



       26 Brief of Appellant at 17 (citing State ex rel. Children. Youth and Families
Dep't v.Ruth Anne E.. 126 N.M. 670, 974 P.2d 164 (1999); Matter of Eileen R..
912 N.Y.S.2d 350, 79 A.D.3d 1482 (2010)).

       27 Ruth Anne E.. 974 P.2d at 166; Eileen R.. 79 A.D.3d at 1482.



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