 

': --;
J:.".i_,.

"s-"_¢iL.-'.i

26130€?29 £iii 8= 37

i|\i THE COURT OF APPEALS OF THE STATE OF VVASH|NGTON

in the |\/tatter of the Dependency ot
B.VV.K., dob 11/26/2014,

No. 76675-9-|

D|ViSION ONE
A minor chiid.

STATE OF VVASH!NGTON,

DEF’ARTMENT OF SOCiAL AND

)

)

)

)

)

§

i-!EALTH SERV|CES, )
) UNPUBL|SHED OPEN|ON

Respondent, )

)

v. )

)

ASHLEY KNUCKLES, )

)

)

Appe||ant. F|LED: October 29, 2018

 

SCHJNDLER, .J. - The triai court interjected more than 800 times during a six-day
termination triai, often engaging in iengthy examination of Witnesses. Whiie many
questions sought ciarification and Were neutra|, many other questions chai!enged the
credibility of the mother and eiicited evidence not presented by the parties Altnough a
court has broad discretion in a bench triai to question witnesses and controi the
proceedings1 the cumuiative effect of the court’s interjections and questions in this case
constitutes manifest constitutionai etror and denied the mother the due process right to
a fair tria|. We reverse the order terminating the mother’s parental rights to B.W.K. and

remand for a new triai before a different judge

NO. 76675-9-i/2

FACTS

Asln|ey Knuckies is the biologicai mother of B.W.K., born November 26, 2014.
Knuckles suffered from an addiction to opiates. When B.W.K. Was nine days old,
Knuck|es’ boyfriend “nodded off" and dropped the baby. B.W.K. suffered a severe head
injury

in January 2015, the Department of Social and l-ieaith Services (Departrnent)
placed B.W.K. in foster care and fiied a dependency petition. Fotlowing a tG-mortth
dependency, the Department fiied a petition to terminate the mother’s parental rights to
B.W.K. During the S~day tria|, Without objection, the court interjected and asked
questions over 800 times. The court asked questions of every witness, including over
100 questions of the mother and a comparable number of questions of the sociai Worker
and the court-appointed special advocate (CASA). The court found the Departinent met
its burden of proving the statutory elements to terminate the mother’s parentai rights to

i?>.V\r'.K.1

 

1 The court must find the foiiowing statutory elements by clearl cogent, and convincing evidence:

(a) That the child has been found to be a dependent chi|d;

(b) 'Fhat the court has entered a dispositional order pursuant to RCW 13.34.130;

(c) That the chiid has been removed or wi|t, at the time of the hearing, have been
removed from the custody of the parent for a period of at least six months pursuant to a
finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been expressly and
understandably offered or provided and all necessary services, reasonabe avaiiable,
capable of correcting the parental deficiencies within the foreseeable future have been
expressly and understandabiy offered or provided;

(e) That there is iitt|e likelihood that conditions wilt be remedied so that the child
can be returned to the parent in the nearfuture. . . [;]

. . . ; and

(f) That continuation of the parent and child relationship clearly diminishes the
chiid’s prospects for eariy integration into a stable and permanent home

RCW 13.34.180(?), .t90(‘l)(a)(i). lt the State satisfies these criteria, the court may terminate parental
rights if it finds by a preponderance of the evidence that termination is in the “best interests" of the child.
RCW13.34.190(1)(b).

No. 76675-9-!/3

The court found the mother was not credibie. in particular, the court did not
beiieve the mother’s testimony that a photograph of B.VV.K. and her boyfriend Was taken
at the Tacoma lVlali in Ntarch or April of 2015. The court found instead that the “photo
was actualiy taken between October 2015 and January 2016" when the boyfriend was
prohibited from having unauthorized contact With B.W.K.

The court found the mother was "in compiiance with her treatment, which
inciudes behavioral therapy, monthly meetings methadone dosing and UA[Z] testing (ai|
results negative)." But the court found the mother demonstrated an insufficient
understanding or interest in the special needs of the child and an inabiiity to meet those
needs

The court concluded there was iittie likelihood that conditions could be remedied
so that B.W.K. couid be returned to the mother’s care in the near future and
continuation of the parent~chi|d reiationship diminished the prospects for eariy
integration into a stabie and permanent horne

The court entered an order terminating the mother’s parental rights to B.W.K.

ANALYSIS

The mother contends she is entitled to a new triai because the court violated her
right to due process The mother asserts that in addition to asking an excessive
number of questions the judge “took over the examination of Witnesses,” impeached
and “aggressive|y cross-examined” her and her witnesses “rnade sua sponte

objections" to her attorney’s questionsl and “heiped the State and CASA” in eliciting

 

2 Urina|ysis.

NO. 76675-9-¥/4

facts and evidence Knuckies contends the court “crossed the line from impartiaiity to
advocacy in favor of the State and against appellant.”
RAP 2.5

The State correctiy points out the due process clairn is raised for the first time on
appeai. Under RAP 2.5(a), this court “rnay refuse to review any claim of error which
was not raised in the trial court.” l-lovvever, “mariitest error affecting a constitutional
right" may be raised for the first time on appeai. RAP 2.5(a)(3). Under RAP 2.5(a)(3),
the mother must show “ ‘actual prejudice.' ” State v, Ka|ebaugh, 183 Wn.2d 578, 584,
355 P.3d 253 (2015)3 (quoting State v. O’l-laral 187 \Nn.2d 91, 99, 217 P.3d 756
(2009)). Actual prejudice is “ ‘a piausible showing . . . that the asserted error had
practical and identifiabie consequences in the triai of the case.’ ” Kaiebaugh, 183
Wn.2d at 5844 (quoting Q§a;§, 167 Wn.2d at 99). After careful review of the record,
we conclude the trial court’s interjections and questioning constitute manifest
constitutional error and actual prejudice5
Right to a Fair Trial

The Fourteenth Amendment to the l.inited States Constltution and articie i,

section 3 of the Washington State Constitution protect against the deprivation of a

 

3 |nternal quotation marks omitted.
4 internal quotation marks omitted

5 The mother also contends the court violated the appearance of fairness doctrine Because the
appearance of fairness doctrine is not constitutionai in nature, we do not consider tne argument for the
first time on appeal. RAP 2.5(a)(3); in re Guardianshib of Cobb. 172 Wn. App. 393, 404, 292 P.3d 772
(2012}; State v. |V|orgensen, 148 Wn. App. 81, 90-91, 197 P.Sd 715 (2008). The federal authorities she
cites do not address whether appearance of fairness cialms are of sufficient constitutionai magnitude to
be raised for the first time on appeal However, our Supreme Court has unequivocally held that the
“appearance of fairness doctrine, though related to . . . due process considerations is not constitutionally
based" and may not be raised as a matter of right for the first time on appeai. City of Be||evue v. i<ing
County Boundary Review Bd., 90 Wn.2d 856, 883, 586 P.Zd 470 (1978). We are bound by the decision
of our Supreme Court. Buck iVlountain Owners‘ Ass’n v. Prestwich, t74 Wn. App. 702, 716, 308 P.3cl 644
(2033).

No. 76675-9-|/5

person’s iiberty without due process of |aw. The right to a fair trial is a “fundamentai
iiberty” protected by the Fourteentb Amendment and article |, section 3. Estelle v.
Liiiam§, 425 U.S. 501, 503, 96 S. Ct..1691, 48 L. Ed. 2d 126 (1976); State v. Davis,
141 Wn.2d 798, 824, 10 P.3d 977 (2000). “A fairtrial in a fair tribunai is a basic
requirement of due process” ln re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L.
Ed. 942 (1955); State v. Ntoreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002).

in genera|, a trial court does not vioiate the due process right to a fair triai by
asking questions Mg;e;ig, 147 Wn.2d at 506-12. Courts have the authority to interject
and question witnesses and may, for example, interject to prevent undue repetition of
testimony or ask a witness to clarify testimony ER 614(b); ln re We|fare of Burtts, 12
Wn. App. 564, 577, 530 P.2d 709 (1975); United States v. Mordan, 376 F.3d 1002,
1008 (9th Cir. 2004).

l-lowever, the due process right to a fair trial is implicated where the court
crosses the line from neutral arbiter to advocate. §eg Mgr_;e_rlc_), 147 Wn.2d at 509-51 1.
Although a judge has broad discretion to question witnesses in a bench triai, the judge
cannot “tai<e charge of a party’s case or . . . become a ciear partisan.” 5A KARL B.
TEGLAND, WAsHlNoToN PRAcTicr-:: EvioENcE § 614.5, at 618 (6th ed. 2016); MM, 147
Wn.2d at 509-511. “A triai court should not enter into the ‘fray of combat’ or assume the
role of counse|." State v. Ryna Ra, 144 Wn. App. 688, 705, t75 P.3d 609 (2008)
(quoting Eoede-Nissen v. Crvstal l\/tountain, |nc., 93 Wn.2d 127, 141, 606 P.2d 1214
(1980)). The greater the involvement of the court, the higher the likeiihocd the judge is
effectively usurping the role of counse|, which calls for reversal. §_eg United States v.

Hickrnan, 592 F.2d 931, 932, 936 (6th Cir. 1979) (convictions reversed where the trial

No. 76675~9~|/6

court interjected in proceedings rnore than 250 times the constant interruptions
“frustrated the defense” and infringed right of cross~exarnination, and the court indicated
disbelief in “the defense story”).

in determining whether a court’s interjections and questioning violate the due
process right to a fair trial, courts consider the proceedings as a whole and examine a
number of factors including the frequency and nature of the court’s questions whether
the court waited untii after counsel questioned the witness whether the court’s
questions were clarifying or adversarial, whether the court interjected sua sponte in
favor of one party, whether the questioning was impassioned or accusatory, and
whether the court usurped counsel’s role. §_e__e_ _l\_/l_grg@, 147 Wn.2d at 507-12; M
States v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974); United States v. Saenz, 134
F.3d 697, 702-05 (5th Cir. 1998); United States v. Sinqer, 710 F.2d 431, 436-37 (8th
Cir. 1983); United States v. Van kae, 14 F.3d 415, 418-20 (Bth Cir. 1994).

We conclude the trial court’s interjections and questioning in this case violated
the mother’s due process right to a fair trial. The sheer number of questions asked by
the court is problematic and usurped the role of counsel. But the timing and nature of
the questions show the court crossed the line between neutral arbiter and advocate
instead of waiting to ask questions until after counsel finished speaking, the court
interjected relativety early and often during the examination of witnesses The court
disrupted the presentation of evidence and exhibited a level of involvement more akin to
an advocate than a neutrat arbiter. As the fotlowing excerpts demonstrate, the court too
often commandeered witness examinations engaged in hostile and advocate~|il<e

questioning, and elicited evidence favoring the Departrnent.

NO. 76675-9-i/7

The Department called Knuckles as its first witness Shortly after the Department
began questioning her, the court interjected:

THE COURT; . . . l want to draw your attention to page 8 [of the
agreed order of dependency], okay, and Provision 4.4, are you there?
Where it says Placement?

THE WlTNESS: Sorry. `l'hese pages are stuck together. Yes, t
do see that.

THE COURi`: And it says “DSHS{€] Supervising Agency is
authorized to place the child with a relative who is wilting, appropriate and
available with reasonable --- prior reasonable notice to the party subject to
review by the Court. DSi-IS shall initiate a home study of the maternal
grandmother’s horne in her home state [of Tennessee] as Wei| as the
sibling [A.Y.j’s paternat grandmother’s home in Kentucky. However, the
court order shali be entered before [B.W.K.j is placed outside of
V\lashington State.”

Did you read that before you signed this order?

THE WlTNESS: [l\/iy attorney and ij went through it briefly, but _

'lI-tE COURT: So you knew that there was no promise from this
order that the child was going to be piaced with your mother, right?

THE WETNESS: That’s just What l thought When | was signing it,
honestly

THE COURT: Contrary to what it says?

THE WlTNESS: Just by what me and the social worker talked
about, she just mentioned that [the childrenj would be out of foster care
and with my mom if l signed the paper.

THE COURT: l\/ls. Knuckles did you read this order?

`l|-tE WiTNESS: l can’t say that l did, no, ma’am.

THE COtJRi: Okay.

THE VVITNESS: We went through it, but it wasn’t -- you know, it
was just very brief. lt was only a few minutes of time that we were
together.

[(Department’s attorney brieny questions witness)j

THE COURT: There were hearings after [B.W_K.’s placement in
foster care] that you attended Are you saying [your tawyer] was not
telling the court what you wanted to say about how promises had been
made that Weren’t reflected in the order?

THE VV|TNESS: Welt, yes that’s true.

THE COURT: | see. When was the first time you complained
that there were promises made to you that weren't reflected in the orders?

THE WITNESS: As soon as | had knowledge a little bit about
what’s happening, you know, l feel like this -»-»

 

6 Department of Socia| and l-lea|th Services.

NO. 76675-9-1/8

THE COURT: When Was that, lVls Knuckles that you actually
made a statement to somebody saying, “This isn’t what | agreed to?”

THE Wl`fNESS: lt »-~ | know l did it at court when we went when |
seen [sicj [rny lawyer] at court, but | don't recall a specific date it was

THE COURT: Did you say this to anybody other than [your
lawyer]?

Tl-|E W|TNESS: Everybody that |’ve been involved with so far,
yes

THE COURT: So you’ve said it to your social workers and you’ve
said it to the CASA?

T|-lE WiTNESS: That -~ |'m sorry, said what?

THE COUR?: `l"hat - that this order didn’t reflect what you’ve
been promised.

THE WiTNESS: Oh, yes | talked to rny first social Worker about
it, Cynthia, because she was the one that originally told me.

`fl-iE COURT: Anybody else you talked to besides Cynthia and
[your lawyer]?

THE VV|TNESS: Not thatl recalll

THE COURT: Okay. Back to you, [Counselj_

[(3 pages of questioning by Department’s attorney.)]

THE COURT: Did it occur to vou to maybe read the orders to see
what thev wanted you to do?

THE VV|TNESS: l Was not aware of an order.

THE COURT: Rea||v? You Weren’t reading anv of these court
orders that said what services you were required to do?

THE WlTNESS: Oh, | had _ yeah, l had the paper from the
Department that said the -- with the - established paternity and the
random UAs and stuff, but ---

`fl-iE COURT: Nlrn-hmm. And nothing in those said that you had
to be off methadone, right?

THE VV|TNESS: Yeah.

THE COURT: Okay.

[(22 pages of extensive questioning by Department’s attorney, several
interjections by court.)]

THE COURT: i’m going to stop you here and ask [Knuckles]
something else

What are {B.W.K.]’s particular needs as compared to any other
chi|d? What are his special needs?

`l'l-iE WlTNESS: i-le's different because he needs extra attention
l-le _ his balance and stuff is off, so he can't just be left alone like regular
kids with other children He needs attention 24/7[7], and that makes it
different He’s more high risk than any other children with his needs

THE COURT: Anything else?

THE W|TNESS: l\lo.

 

l Twenty-four hours a day, seven days a week.

NO. 76675-9-!/9

THE COURT: That’s it? That’s all his needs is extra attention
and 24/7 care?

THE WITNESS: l mean -

THE COURT: Anything else a caregiver needs to give him?

THE W|TNESS: Of course, he needs his medical stuff advised
and -

THE COURT: What medical stuff needs to be advised?

THE WlTNESS: All of his you know, therapies and appointments
and a|| that. They need to, you know, be taken seriously and _

Ti-lE COURT: And how often are those?

Tl-lE WlTNESS: l-le’s got the therapies that l’rn allowed to go to.
There are three of them and it’s twice a Week: Physical therapy,
occupational therapy1 and speech therapy

T|-iE COURT: |f he returns to you, how are you going to meet his
need for 2477 care?

THE W|TNESS: l will be there for him and be able to take care of
him responsibly with the help of _ and support of my family and my
friend.

THE COURT: Which family?

THE Wll'l\l ESS: |Vty mother and grandmother and grandfather
back home in Tennessee.

THE COURT: Does that mean you would take . . . [B.W.K.j back
home to Tennessee?

THE VV|TNESS: lf l was permitted, yes

THE COURT: Okay. And who would be providing the 24/7 care
back in `l'ennessee?

THE WlTNESS: We|l, | mean, l could and - until we got
something set up like he is now where he goes to daycare and stuff, but
l’d rather him notjust be in daycare all day. |f it was my choice |’d -- you
know, take care of him and stuff, and l have the family support and means
to Where l would be able to stay with him.

THE COURT: How do you know you’ve got family support to get
24/7 care in Tennessee? How do you know you have it?

THE W|TNESS; They’ve told me lV|y _ my parents and
grandparents have told me that they would do anything to help me that
they needed to and they have the means to.

THE COUR?: And what’s the plan for his three times a week
therapies and appointments?

Tl-iE VV|TNESS: For back in `lennessee?

THE COURT: Wherever you’re taking him.

THE VVlTNESS: l have researched different doctors and stuff for
Tennessee and tried to reach out and see if they would be able to take
him -»- you know, take him in and _

THE COURT: Who specifically have you researched? l mean,
where -~ where are they?

No. 76675-9-i/10

Ti-|E WlTNESS: There was -- l can’t remember their names
specificallyl but it was doctors out of Nlorristown and Knoxvil|e, tennessee
and specialist - there are specialists and good healthcare in Knoxville,
which is close to Tennessee back home

THE COURT: lt‘s in a different state, isn’t it? Or it’s still in
Kentucky?

i|-lE W|TNESS: No, they’re both in -- no1 Knoxvil|e’s in
Tennessee.

THE COURT: Okay. So how far from your home would Knoxvii|e
be?

THE WlTNESS: lt’s just like 30 minutes

THE COURT: Okay. And who would be providing the care for
[B.\N.K.j? Name, a facility, or person?

THE W|TNESS: lt _ l don’t remember the name of the facility

THE COURT: i)o you know how often he’d be going?

THE WlTl\tESS: Probably the same amount as he is now. l
mean, l would set everything up where nothing would be changed except,
you know, his living area, pretty much. l-le would still be going to his
therapies and doctors and stuff.

THE COURT: Okay. Back to you.

[(Department’s attorney asks Knuckles three questions.)]

THE COURT: How long have you been going [to visits and
therapy sessions with B.W.K.j regularly?

THE VVl'l'NESS: l got rny bus card in mid~December.

THE COURT: 80 you’re saying that you’ve been attending
regularly since mid~December?

THE WlTNESS: Weil, the visits got - ended up getting canceled
in January, but it was - me and Donna [Woodruff of A Place Called
l-lope], the supervisor [of the visits with B.W.K.], thought it was just the
second missed, but Genora [Chappeli, a case manager at A Place Called
Hope,] had it down as the third. So it ended up -- because my text was
delayed to her, and she didn’t get it until three hours after time had
passed. lt was too late, and she said it was the third one so they got
canceled

THE COURT: So you haven’t had visits since January?

Tl-|E WtTNESS; No, they’re -- they’re active now.

'l'I-lE COURT: Okay. When were they reactivated?

THE W|TNESS: .lust a couple Weeks ago.

THE COURT: Have you missed any since then?

THE WlTNESS: No.

THE COURT: How about his therapies?

THE W|TNESS; |‘\lo1 l haven’t missed them since

Tl-IE COURT: You haven't missed any since mid»Decernber?

Ti-lE WlTNESS; There might have been a |Vionday one or
something at the Puyallup the -that one, but they’re -- if it conflicted -- if
the appointments conflicted with the visit, then l chose to go to the visit.

10

NO. 76675-9-|/1‘|

[DEPARTMENT’S ATTORNEY}: if you -

'l'l-lE COURT: What? You _

'l`l-lE WlTN ESS: lt’s -- it’s -- it’s the --

THE COURT: You’re saying [B.\N.K.] was scheduled for
visitation and therapy at the same time?

THEW|TNESS: l\|o. lt’s the _ like different appointments like

his doctors’ appointments and stuff or if he had a visit that day and he had

an appointment earlier that day, my concern was about making the buses

and getting back to the appointment -- to his visit on time So l would

choose to go to the visit instead of try to go make it and missing the visit

and risk missing the visit. Does that make sense?

THE COURT: Not really.[a]

This lengthy questioning demonstrates the trial court’s involvement as well as its
skepticism of and hostility toward the mother For example the court‘s question, “Did it
mean anything to you at all that people were telling you that your child had about a
zillion special needs and you had to be there for him," if asked by the Department would
have appropriately drawn an objection from the mother’s counsel9 When a judge in a
bench trial engages in this type of argumentative questioning, it puts counsel in an
extremely difficult position-object to the inappropriate questions and risk angering the
trier of fact, or remain silent to minimize the risk of an adverse outcome

lVlany of the court’s questions also either elicited or facilitated the admission of
evidence supporting the Department. |n the following excerpt, the court spends a
considerable amount of time asking questions of two witnesses about a photograph of
B.VV.K. with the mother’s boyfriend The significance of the photograph turned on

whether it was taken at a time when the boyfriend was prohibited from attending visits

The court dominated the questioning on this topicl starting with social worker Clarissa

 

3 Emphasis added
9 Emphasis added

11

No. 76675-9-l/12

Blackmer.

THE COURT: Okay. You got negative visitation reports at the
first visit or at the first and second visit?

THE VVITNESS: The first and second visit occurred in the same
week, and so l got them approximately at the same time.

THE COURT: Was it the first or the second visit that
corresponded with the posting of the pictures on Facebook?

'l'i-lE WlTNESS: The posting of the pictures --

[KNUCKl_ES’ ATTORNEY]: Your l-tonor, again, no disrespect,
objection as to hearsay

THE COUR'i': lt’s not hearsay when she saw it herself --

[KNUCKLES’ A'fTORNEY]: l don’t --

THE COURT: -- on Facebook. The fact that it appeared on
Facebook doesn’t make it hearsay when it’s photographs

What was the relationship between the posting of the photographs
in terms of when you saw them and the vislt?

'l'l-iE WlTNESS: l do not recall actually the exact timing of when |
saw the photographs l know that l addressed it with the mother as soon
as l saw them.

THE COURT: l-low, if at all, could you date what you were seeing
in terms of what was posted on Facebook in terms of the visitation? l
mean, how could you tell it wasn't some years earlier mall visit?

THE WlTNESS: VVell, at that point the child was not even a year
o|d.

THE COURT: (lnaudible) just (lnaudible) that.

THE WlTNESS: The way l actually verified lt --- and l don’t know
if the CASA’s already testified or not, but she can speak further. l actually
connected to the CASA because she was receiving monthly photos of the
chi|d, and she frequently received photos while the child was at visits So
l requested copies of all of those photos And that was how we were able
to determine the exact date was because of the outfit that he was in at the
mall in those photos and his size -

THE COURi: Uh-huh.

THE WITNESS: _ his size, his shape A four month old
obviously looks significantly different than a ten or eleven month oid. And
so that was how we narrowed it down.

And | was on the phone with the CASA explaining what the
concerns were while l was reviewing the pictures And when we came
across that and that the picture matched perfectly what he was wearingl
his size, his developmental level at that point in time, that’s how we knew
it had occurredl

T|-iE COURT: Who knew what the child was wearing on these
two particular visits? | mean, where did that information come frorn?

THE WlTNESS: The CASA had photos from the mall of _ while
the child was at the ma|l.

12

NO. 76675-9-l/13

`l'l-lE COURT: The CASA was there for one or both of these
visits?

THE WlTNESS; For part of the visit.

THE COURT: Both of them or one of them?

THE VV|TNESS: l _ l don’t recall on that one. l don’t know -

THE COURT: Okay.

THE VVlTNESS: | don’t know that l was aware that the CASA
was there until | had asked her for pictures of [B.W.K.]. And l had asked
her for the pictures to narrow it down on the developmental level that
we’re not talking about something that had occurred a month or two prior
but something that was much more recent

THE COURT: Okay. That part of this the connection between
the way the child looked in the photographs and the way he looked in the
rest of the photographs we’ll await the CASA’s testimony but l want to
come back to this timing. Okay. How soon was it after these visits that,
however it was whether via CASA or othen/vise, these photographs came
to your attention?

THE WlTNESS: lt would have been within the same week -~

THE COURT: Okay.

[THE WlTN ESS}: _ othenrvise, we would have moved fonivard
with the decreasing of the supervision

`l'l-lE COURT: Okay. And when you got this information about
these photographs and you looked at them, then what was the
conversation between you and the mother then?

THE WlTNESS: When | was able to reach her by phone, |
expressed that there were some concerns as far as stepping down on
visitation, and l wanted to take the time to talk with her about those
concerns and hear her side of things before - before any formal decision
was made as far as whether or not we were going to pursue the step-
down on the visitation

THE COURT: And how did you get in touch with mom?

THE V\flTNESS; l had to utilize the multiple phone numbers that |
had until l found one that worked

Tl-lE COURT: Okay. And what happened when you finally got a
phone nurnber that worked?

THE WlTNESS: She had answered -

THE COURT: And What happened _

THE WlTl\lESS: -- on that one

THE COURT: -- then?

Ti-lE W|TNESS: That’s when l broached the subject with her in
the manner l just described

lHE COURT: And what was mom’s response?

THE VV|TNESS: Nlom’s response was initially complete denial
that [the boyfriend] had been present at any visit stating it must have been

13

No. 76675-9“|/14

a visit from --~ the visits occurred at the DCFS€“)] offices prior to us being
aware that [the boyfriendj was not the father1 which would have put the
child four months -- four months of age And at that point he was nearly
-- he actually had turned one on Thanksgiving that year, so he just turned
one

'l`here was _ so l asked her about that. l also had brought up the
concerns from the visitation reports about her not fully supervising
[B.W.K.] and not yet demonstrating that she Was going to watch him 100
percent of the time Part of the concerns were that we didn’t want
[B.W.K.j being left with strangers while she went into the bathroom.

THE COURT: And what did mom say in response to those
conversations?

Tl~lE WlTNESS: She stated that it was all entirely false, and that
both visitation -- it must have been both reports That both visitation
agencies were lying to make her look bad And that it was about the
money because they would not get paid as much if it switched to
monitored

She then explained that she had documentation to prove all of this
and wanted to provide that to me and asked to do an in-person meeting
with me, which we scheduled to be l believe the following Thursday or
Friday.

't`l-|E COURT: Okay.

THE WlTN ESS: And then that initiated l believe three or four
months of my attempt to do that office visit or a phone conversation with
her furtherl

Tl-lE COURT: So what happened to the scheduled meeting?

THE WlTNESS: She never showed, and she repeatedly would
call me after the timing of the meeting to explain why she no-showed for
the first l want to say three scheduled meetings And then after that it Was
on me to attempt to connect back with her since there was no reason _
there was no call, no follow-up on why she no-showed.

l'ltE COURT: So let me get this right lVlom said she had
documentation, she scheduled a meeting with you to show it to you, and
then she did not show up?

THE WITNESS: Correct.

Tl-IE COURT: Did she call you and tell you she wasn't coming?

`l'l-lE WlTNESS: After the fact, yes

THE COURT: After the fact. And then you scheduled two more
meetings?

THE WlTNESS: l scheduled multiple more meetings?

THE COURT: l know l got it, but -

THE WlTNESS: But.

THE COURT: -- this initial time, you scheduled two more
meetings after that?

 

‘° Division of Child and Fami|y Services,

14

No. 76675»9-|/15

THE WlTl\lESS: Both of which she no-showed, correct

THE COURT: Okay. Did she call you in advance of either one of
those?

THE WlTNESS: No.

THE COURT: Okay. She called afterward to say why she hadn’t
appeared?

Tl-lE W|TNESS: That’s correct.

Tl-tE COURT: And then she didn’t schedule another meeting with
you?

THE WlTNESS: lcontinual|y tried to schedule those l continued
my attempts to reschedule ln our subsequent phone calls for her - after
she had not shown up for the office visits we had the conversation about
[B.W.K.]’s medical needs and really wanting to make sure she was fully
understanding and she had asked while she was there in person if we
could go over [the] medical records and l expressed l was more than
happy to do that, so we had planned on including that in our meeting And
that was of vital importance for her to understand [the] medical needs in
order to progress with moving [B.VV.K.] home

THE COURT: Did you succeed in scheduling a meeting with
her?

THE WlTNESS: No, | never did

The court riot only elicited detailed factual evidence that the Department had not
presented it assumed the role of advocate for the Department. The court also argued
with the mother’s attorney on evidentiary objections to the court’s own questions

The court continued the questioning about the photograph during the testimony
of the CASA Janet Belles:

Q (By [CASA’s attorney]) Earlier you testified that you could tell that
[the photographj was in a mall, and you gave an example of the
chair _

'l'l-lE COURT: No, she said specifically she knew it was in
this mall ---

[CASA’S ATTORNEY]: Okay.

THE COURT: _ Where the mother had arranged for these
test visits Okay. She mentioned chairs

ls there anything else in this photograph that tells you where
this was?

THE V\flTNESS: The overhead lights the tile floors There
is a store head up above here and there’s like signs lt’s a mall.

THE COURT: The mall or a mall?

THE WlTl\iESS: lt’s the Tacoma lVlail.

15

No. 76675-9-1/16

Tl-lE COURT: Okay.

Ti-lE VV|`l'NESS: And on the heading it actually says
"[B,VV.K.] and l chilling at the mall."

Tl-lE COURT: l know what it says but -

`l'l-lE WlTNESS: Sorry.

`l'l-lE COURT: _ l’m not really considering what [the
boyfriend] has to say for the truth of what he's saying here Okay.

THE WlTNESS: So l would say it is in a _ in the Tacoma
Nlal| where the visits have been happening

Tl-lE COURT: Okay. So What is it about [B.W.K.]’s
clothing you mentioned and [B.W.K.]'s appearance? dust didn’t get
-- first of all, you said that you could tell that [B.W.K.j was toddler
age What was it you could tell about . . . age by looking at this
photo?

Tl-lE V\llTNESS: `l'his photo isn’t as clear as the one that l
did see

THE COURT: l\/lm~hrnm.

THE VVlTNESS: [B.W.K.] had a, like, a sweatshirt that had
a train on it.

Tl-lE COURT: Okay. Slow down. ls this the photograph
that you sawl a terrible reproduction of it?

THE WlTNESS: Yes.

THE COURT: Okay. Then looking at this photograph,
which is a terrible reproduction of the photograph you saw, is it
accurate even though it’s not a good reproduction?

THE W|TNESS: Yes.

Tl-lE COURT: Okay. Looking at this photograph that
accurately reproduces what you saw, tell me what it is first of all,
about [B.\N.K.j that indicates the timing of this

THE W|TNESS: [B,W.l<.’s] age

THE COURT: Okay.

THE Wl`lNESS: [B.VV.K.] looks like . . . about 11 months
there or a year.

`l'l-lE COURT: Okay. And what is it about [B.W.K.’s]
clothing?

THE V\llTNESS: |’m not understanding what you're asking.

THE COURT: ¥ou said before that there was something
about what [B.W.l<.] was wearing --

THE WlTl\lESS: Yes.

THE COURT: _ okay, that was important? What is it
about what [B.W.K.j’s wearing that’s important?

THE WITNESS: lt was the same shirt that l had a picture
of.

Tl-lE COURT: Do you remember if that picture showed up
in any other photos he took or just on this one visit you took lt when
you were there?

16

No. 76675-9-|/‘| 7

r>.>:

THE V\liTNESS: dust _ | didn’t take this picture

THE COURT: l know.

THEW|TNESS: Oh, sorry. Say it again?

THE COURT: We|l, from What you said, ifi understand
you right, lVls. Belies this photograph shows [B.W.K.] wearing a
shirt, yes?

THE W|TNESS; Yes.

THE COURT: And you also had taken a picture of the
shirt that he’s wearing here at some point, right?

THE WiTNESS: Oh, yes. Yes. ‘i’es.

THE COURT: Okay. Do you know whether _ when it
was that you took the picture of the shirt that [B.W.K.]’s wearing
here?

THE VVlTNESS: lt’s in my CASA October report. l think
it’s in the October report

Ti-IE COURT: October or _

THE WiTNESS: i am thinking it is now.

(By [CASA’s attorney]) Wouid looking at an October report help
refresh your memory as to if that’s the report?
Yes. Yes. Yeah.

(By [CASA’s attorney]) i’m handing you what’s been marked for
identification purposes as CASA’s Exhibit 153. if you could take a
tew moments and took at the front page of the date of your report
and then the second page of a photograph, and see if it heips
refresh your memory as to the date when you saw {B.\N.K.] in that
sarne shirt?
it looks iike the hearing date was on 11/2/15.

THE COURT: What hearing date?

`i'l-iE WiTNESS: The _

THE COURT: Okay. 80 here’s the question

THE WlTNESS: - permanency plan ---

THE COURT: Carr you -»~ can you date the photograph?
Your photograph, can you date it?

icAsA's ATroRNEY]; can i follow up now?
THE couRT: Yeah.

Oh, it’s right there in front of me, yes 10/29/2015. l apologize
Okay.
THE COURT: Okay. What’s the significance of that?
THE W|TNESS: That would tell me that that picture was
around that time period,

17

No. 76675-9*¥/18

0

(By [CASA’s attorney]) And if you could turn to the very last page
as we||?

THE COURT: Around 10129/'|5?

Ti-IE WlTNESS: Yes.

During cross-examination, CASA Belles testified she had been mistaken when

she said she recognized chairs in the mail photograph The court interiected, steered

the witness in a different direction, and at one point answered a question for the

witness

Q.

D>o>

Okay. | believe you’ve testified that vou recognized that photo
because of the chairs that vou recognized Where are the chairs i_n_
that photo?
l stated early [sic] that l was mistaken by my memory,
What Were you mistaken about?
That there were chairs. There were no chairs
Okay.

THE COURT: What is that chair to the teft in the
photograph? Aren’t those chairs?

THE WlTNESS: | think they’re signs

`i'l-tE COURT: No. to the ieft. Behind the --

THE W|`E`NESS: t_et me see it again.

THE COURT: »-~ just behind ithe bovfriendl’s rioht ear.

THE WiTNESS: Let me see it again.

[KNUCKE_ES’ ATTORNEY]: l’m sorry.

THE COURT: dust behind ithe boyfriendl’s right ear sittinq
on the floor there, aren’t those chairs?

THE Wl`i'N ESS: They could be, yes.

THE COURT: Okay.
(By [Knuckles’ attorney) ls your testimony that you are seeing
chairs or not seeing chairs or you’re not sure?
From this picture it’s not a good picture, but that could be chairs in
the center of the mal|, but the reason l know it’s in the mall is tiie
floors the heading of the stores the overhead lights and the _
there’s like, a directory up above that looks iike it has wordings and
an arrow may be pointing
And how do you know it’s a particular mail as compared to a
different mail?
Well, [B.W.K.]’s visits are supervised, so it would have to be where
[B.W.K.] goes for his visits and that would be at the Tacorna |Viail.
Okay. But why couidn't lt be a picture of [the boyfriend] with
[B.W.K,] in a different mall that’s not a supervised visit?

18

No. 76675-9-¥/19

Ti-lE COURT: Because how would the mother det access
to the child Counsel?

i'|-lE WETNESS: She answered it.

Tl-iE COURT: Yeah, t mean _

[KNUCK§.ES’ ATFORNEY]: Judge answered it?

THE W|TNESS: _Y_e_s

THE COURT: Yeah.

[KNUCKLES’ ATTORNEY]: Thank you.l"i

 

The court assisted the CASA attorney in laying the foundation for admitting e-

mai| exhibits during the cross-examination of B.VV.K.’s foster mother and rejected the

objections of the mother’s attorney as "nuts.”

Q,

A.
Q.

(By [CASA's attorney]) . . . [V\I}e have in front of us an e-rnaii that
is from []123@hotmail, which l believe is your public e-mail
account _
Right.
-~ dated November 4th, 2016 on Friday.

THE COURT: Okay. So, . . . let me ask you is vour public
e-mai| account l i123@hotmai|.corn?

'i'l-iE W|TNESS: Yes.

THE COURT: Okay.
(By [CASA’s attorney]) And _

THE COURT: And that’s the address vou used to
communicate with the mother?

THE WiTNESS: Yes.

Tl-lE COURT: At her address off i47@qmai|.com?

THE WlTNESS: Yes.

THE COURT: Okay.

[KNUCKLES’ ATTORNEY]: But, Your l-ionor, for the
record [the foster motherj’s not authenticated that this is her e-mail
because she doesn’t have it in front of her to authenticate it, so |
am objecting for the record.

THE COURT: That’s nuts . . . . Shejust said verbally that
this is her e-mai|. She doesn’t . . . have to have it in front of her.
Okay. Overruied.

fkuucktes'ArroRNEY]; continuing objection rhani<
you.

 

" (First alteration in original) (emphasis added).

19

No. 76675-9-|/20

THE COURT: Noted. l think we have sufficient
Micafion-Wl

The court commandeered the examination of the mother’s witness Bonnie
Kosanovich. Knuckies had been living with Kosanovich. i_ess than two pages into the
testimonyl the court began aggressively questioning Kosanovich about the mother’s
future iiying arrangements and overruied objections to its own questions

THE COURT: When are you expecting [Knucklesj to move back
to 'i'ennessee?

THE WlTNESS: Weli, hopefully, she really wants her son back,
and then stay here as tong as she needs to _

Tl-lE COURT: Nim-hmm. When --

THE VV|TNESS: - untii things are ready --

THE COURT: _ but when are you expecting her to teave, or are
you?

THE W|TNESS: We have no expectations of that at the momentl

THE COURT: Okay. Do you expect her to leave next year or two
years from now or five years from now?

THE WiTNESS: dust when she is ready, when she is abie to.

Tl-tE COURT: Okay. Can you explain what that means?

THE Wl'l'NESS: When she is ready to - l meanl just until she
gets on her feet.

THE COURT: And what does that mean?

THE WlTl\iESS: When you have a iob, money, another place to
go to.

THE COURT: When she has a job, that’s When she is going to
leave to go back to another state?

THE VV|TNESS: No. Wetl, i’m sure she wilt have heip from her
room to go back there, but just when --»~ she wants her child back and we
will have herjust, you know, until the Court says it’s okay for her to move
out of state.

`i'l-lE COUR'P: Okwav. So we have a termination trial gnderwav
right nowl right?

THE WlTN ESS: Yes.

THE COURT: And you know that's why you’re testifying?

THE WlTNESS: \/es.

THE COU R'l': So when do you expect her to leaye?

THE WITNESS: There is no expectation No expectation on it.
She coutd stay as long as she wants

THE COURT: Okay. So you iust want her to stay indefinitely?

 

12 Emphasis added

20

No. 76675-9-i/2‘i

THE WiTNESS: dust until she is ready to leave

Tl-iE COURT: Have you talked to your husband about this?

'i'l-iE WlTNESS: lie is okay with it.

`i`HE COURT: No, lqot that, but the two of you haven’t discussed
her termination date in your home?

THE Wl`i'NESS: Weil, if that happens if it’s terminated, then she
could go back to Tennessee whenever she wants

THE COURT: So if this trial ends in termination, then she will
return to Tennessee? And if it doesn’t end in termination, then you’re
going to keep her in the home until when?

[KNUCKLES’ ATTORNEY]: That calls for speculation.

THE COURT: Overruled.

'l'l-iE WiTNESS: Yeah.

`i'|-iE COURT: lt’s her home

[KNUCKLES’ ATTORNEY]: Thank you.

THE WlTNESS: Weil, it’s okay with me that she stays as long as
she can.

THE COURT: Okay. So if the trial doesn’t end in termination1
she can stay indefinitely?

THE WtTNESS: Yes.[i?’l

During crossexamination of a sociat worker, the court almost immediately cutoff
the mother’s attorney and chaiienged the attorney’s understanding of the evidence

despite the absence of an objection from opposing counsel:

BY [KNUCKLES’ ATTORNEY}:
Q. You said it wouid be very difficult for A Place Called i-lope to
arrange feeding therapy at someone’s horne correct?

THE COURT: No, You misheard. [the witness] said that
she could arrange feeding therapy at A Place Called Hope. She
did arrange feeding therapy at A Place Called Hope. lVlorn wasn’t
there for three feeding therapy sessions in a row, so it rnoyed back
to foster mother’s home

[KNUCKLES’ATTORNEY]: Okay.

(By [Knuckies’ attorney]) So my question is -
THE COURT: She said it would be difficult -
Q. (By [Knuckies’ attorney]) -~» it possible --

THE COURT: - to arrange a supervised visit in a place
like the foster mother’s home, which is not a neutrat location, but
that’s a different question from the availabitity of A Place Called
l~lopel which she said was available

[KNUCKLES'ATTORNE¥]: Okay.

 

13 Emphasis added

21

No. 76675~9-|/22

Q. (By [Knuckles’ attorney]) So it is possible to arrange therapy at a
private home correct?

THE COURT: No, [Counsel]. One more time she said a
supervised visit needs to be in a neutral location She said that’s
why feeding therapy was arranged at A Place Called Hope until
mother didn’t appear for three successive therapy sessions That’s
what she said Anything else you want to ask her?

[KNUCKLES’ATTORNEY]: Okay. Well, lwanted to ask
that question, but that’s fine

Tl-tE COURT: Well, she’s answered that one Okay?

[KNUCKE_ES’ATTORNEY]: Okay.

During direct examination of Knuckles’ mother, the court questioned her
aggressively about Knuckles’ relationship with her boyfriend L.J. The court’s questions
were decidedly not neutral in content or tone

THE COURT: Who is [L.J.]?

Tl~lE WlTl\lESS: Who is [L.J.]?

'l'l-lE COURT: Yep.

THE Wl`l'NESS: That’s someone [Knuckles] used to date

THE COURT: How do you know that? l

THE WlTl\iESS: From he _ because he went to school With my
son. And they dated when they were younger.

THE COURT: ln Tennessee?

Tl-iE WlTNESS: Yes. No, Kentucky, actualiy. Kentucky.

'iHE COURT: Did their relationship end after Kentucky?

THE Wl`i'N ESS: l don’t know when their relationship ended

THE COURT: You don’t? Vou don’t know who your daughter
dates?

THE WiTNESS: No, ma‘am. f\/ly daughter has been out west, a
whole country away, for two years l don’t know who she is talking to or
what she is doing, who she is seeing l don’t know when they split up. l
do not know.

THE COURT: Do you know about [L.J.]’s relationship with her
here?

Ti-lE WETNESS: l am aware that she went out there _ when she
initially went out there, that’s who -- his family was out there

`i'I-lE COURT: And?

THE Wl`l'NESS: She has no one out there lt was his people that
was out there

THE COURT: Was their relationship still going on at that point?

THE WlTNESS: \/eah, lwouid assume at that point. lf she is
going out to Washington, l would assume they were going to date _

THE COURT: Do you have any idea ---

22

No. 76675-9-!/23

THE WiTNESS: --- again or _ you know.

Ti-lE COURT: Do you have any idea what happened after that?

'i'l-iE WiTl\iESS: No. l mean, l know about the accident with the
baby, but that’s about it. l don’t know, you know, anything else, other
than, you know, the accident, him falling asleep with the baby, and her
taking him to the hospitai, and then ali this happened

THE COURT: And what happened to [L.J.]?

THE WiTNESS: l have no idea. l think he went to jail. l think he
might have been in jail when l was there, but i’rn not sure l don’t know.

l'l-EE COURT: And what happened --

`l`HE VV|TNESS: Neediess ---

THE COURT: -»-» to [L.J.j -

THE Wl'i'NESS: -- to say, l didn’t even want to talk or speak or
know anything about [l..,J,] after this episode --

Ti-lE COURT: You -

 

Tl-iE VVtTNESS: - because of course, l was upset
THE COURT: You didn’t want to know anything more about him
after that?

THE WlTl\lESS: No, i didn’t. l didn’t care where he was or
nothing le concern Was my children --~ my grandchildren and my child. l
didn’t have any concern for [i_.J.] at the time.

Ti-lE COURT: To your knowledge --

Tl-iE WlTNESS: Once my children were in CPSW] custody, l was
worried about my chi|- -- my grandchildren and my child

THE COURT: To your knowledge is he still in jail?

THE WlTNESS: | don’t know, No - l have no idea where [i_.J.] is

 

at -

Ti-iE COURT: ¥ou’re not interested -

TI-iE WlTl\iESS: -- or what he is doing

`iHE COURT: You’re not interested in knowing where this man
is’?

Tl~lE WlTNESS: No.

Tl-lE COURT: You’re not _

Tl-iE WETNESS: l’m interested in getting my grandchildren home

THE COURT: And you’re not interested anymore in knowing who
your daughter is dating?

THE VVlTNESS: Weil, l’m sure if my daughter wants to share
who she is dating, she will tell me

Tl-lE COURT: But you don’t ask her?

THE WlTNESS: No, l don’t.li€’l

 

14 Chi|d Protective Services.
15 Emphasis added

23

No. 76675~9-|/24

When the Departrnent attempted to “clarify” exhibit 77, the lviarch 2016 response

filed by the mother’s former attorney concerning a Department social worker’s visit

summary, the court took over the questioning repeatedly mischaracterized the mother’s

testimony, and ended with an inappropriate comment on the mother’s credibilityl

D|RECT EXAM|NATION (ReSur'rled)

BY [DEPARTMENT’S A'E'TORNEY]:

Q.

t'-`>.>_O .>

So when we were last talking _ oh, do you have the exhibit?
Thank you. You had said that there was a document that your
lawyer had signed your signature to without your consent?

Yes, that’s what l was told by [the social worker]. l had never seen
the document myself

So looking at Exhibit 77, had you ever seen this document before?
No.

Okay. Give me a second here

THE COURT: You were told by [the social workeri that
lyour former attorneyi had forged your signature?

THE WiTNESS: Weil, [the social worker] was talking to
me and going through this report here and l was saying that l didn’t
say some of the stuff in here, and she said, “lt's got your name lt’s
got your signature on it.” And l was |ike, “l have never even been
around her to sign anything" you know, so l _ and l had never
seen this or, you know, agreed to it, so - but that’s when l found
out about it. She was saying that she had had this paper in front of
her and, you know, was kind of saying that l was blaming Cl`-’S for
everything and l told her l didn’t know what she was talking about
and she said it had my signature on it. That’s why l thought that
[my former attorney] had signed my name.[ml

THE COURT: l’m assuming folks that this was a file
document?

[DEPARTMENT’S ATTORNEY]: Yes.

THE COURY: Okay. So let’s take a look at that. See the
cause number here? lt says case No. 15-7? See that?

Ti-lE W|TNESS: Yes.

THE COURT: Okay. This means that it’s attached to this
case filel right?

THE \.lV!Tl\!E-SS: Yes.

THE COURT: And you know that this is a court file where
all the documents filed in this case go, right?

Ti-lE VV|TNESS: Yes.

 

16 We note the signature on exhibit 77 is “lsl.” The typed signature line below the lsl states the
attorney's name followed by “as reported by |Vlother“’ and the attorney’s bar numberl

24

No. 76675~9-¥/25

_>o.>r>.>o

Ti-lE COURT: Okay. But you’re telling us that you were
informed by the social worker that your attorney had forged your
signature and you never saw this report which was filed with the
coun?

THE WlTNESS: She said that my name was signed to it,
and l knew l hadn’t signed so l assumed that she had signed my
name to it, Because she said my signature was on it, she didn’t -

THE COURT: l’m not following your story at all here
Okay. you’re telling me that you were informed by the social worker
that your lawyer had forged your name on a document filed with the
court, and you never looked at this report?

"i`l-iE VVITNESS: l had asked She _ [the social worker]
was supposed to mail me a copy, but l never got a copy of it.

THE COURT: Weil, how about talking to your next lawyer
about getting a copy of this or looking in the court file yourself?

THE VV|TNESS: l don’t recall having the court file, l’m
sorry.

Tl-iE COURT: You’ye never seen this document before
today?

THEW|TNESS: This one in front of me, 77, no, l haven’t,

THE COURT: Which was filed in the court file? You never
saw it?

THE WiTl\iESS: l\io, ma'arn, l hayen’t.

THE COURT: Okay.

{DEPARTMENT’S ATTORNEY]: Just to step back just a
second so now that you have a chance -

THE COURT: l’m admitting 77 as an impeachment item.
All right.

(Exhibit 77 is admitted.)
[DEPARTMENT’S ATTORNEY]: All right Thank you. So

[KNUCKLES’ ATTORNEY]: l am sorry. Did you ---
THE COURT: l’m admitting 77 for impeachment
[KNUCKLES’ ATTORNEY]: Oh, okay. Thank you.

(By jDepartment‘s attorney]) You had a chance to review this
document over lunch; is that correct? 77?
This one l brief- - l think |’ve -- [my attorney] showed me briefly
right before we come [sic] back.
Okay. is -- is this the document that [the social workerj read to
you?
Yeah1 we went -- we went through it over the phone, yes
Okay.
That’s when l initially, you know, found out about it,

THE COURT: Was _

25

No. 76675~9~|/26

A.

l mean [my former attorney] did tell me we did have a short phone
conversation and told me she was going to submit something to the
court but l didn’t know what. We didn’t talk about what. She didn’t
send me a copy of it or nothing like that. And then l get a call from
[the social workerj and she was saying you know, what was said
and stuff and wanted to know my responses And i had told her l
hadn't _ no knowledge of _ of saying this or writing this up with
[my former attorney] and she said that my name was signed to it,
and that’s when l got concerned

THE COURT: So [the attorney] was still representing you
then, right?

Tl-lE W|'l'NESS: Yes.

THE COURT: And you still had access to your email,
correct?

THE WlTNESS: lt was sporadic when l had le. Warner
as an attorney with the email and stuff, but we did try to keep
contact in phone -- through the phone

THE COURT: You had access to email, did you not?

THE VVlTNESS: When l would leave to get Wi-Fill?l, yes

THE COURT: Weil, there’s Wi-Fi all over -

THE WiTl\iESS: ¥es.

THE COURT: _ 'i'acoma and Pierce County, isn’t there?

'tl-lE W|TNESS: Yes.

Tl-iE COURT: Okay. So when you had access to Wi-Fi.
which, really, you could have done by going anywhere near a
Starbucks okay, you had le. Warner’s email address correct?
Your lawyer’s email address you had it?

THE WlTNESS: We just talked by phone

THE COURT: You never had your lawyer’s email
address?

THE WlTNESS: | _ l couldn’t tell you. l might have it
somewhere but we just talked by phone is the only --

THE COURT: Are you seriously telling me that in all your
representation with lVls. Warner you never were aware she had an
email address?

Tl~tE V\llTNESS: We just didn’t talk about email. We
talked by phone

THE COURT: ls that a “yes" or “no" that you knew she
had an email address?

THE WlTNESS: Yes.

THE COURT: Okay. And when you talked by phone l
assume you knew her phone number?

Ti-lE W|TNESS: Yes1 l had it in my phone

 

17 ereiess fidelity.

26

No. 76675-9-|/27

Ti-lE COURT: So if you found out that allegedly she put in
a document signed by you - or by her purporting to be you that
had been filed in the court file did you email her or call her?

`l’I-iE VVlTNESS: We spoke on the phone briefly, but she
had to go to take care other horses and then l didn’t hear back
from her.

THE COURT: Ever?

THE WlTNESS: Not until she told me she wasn’t going to
be my lawyer at court no more We didn’t talk again

Ti-lE COURT: l see Okay. l’ll tell you bluntly. okay, l

don’t believe you.
Tl-iE WETNESS: l’m sorry, Your Honor. l’m iust telling the
truth.

THE COURT: l don’t think you are le. Knuckles Back to
you, {Departrnent's attorneyj.llal
The tenor of the court’s questions and remarks was that of an advocate not a neutral
arbiter.

Although we recognize it is appropriate and often necessary for a judge to ask
questions of witnesses in a bench trial, and while such questioning is particularly
important in cases where the safety of the child is at stake we conclude the cumulative
effect of the interjections and questions in this case demonstrated a lack of impartiality,
constitutes manifest constitutional error, and violated Knuckles' due process right to a
fair trial. The court asked an excessive number of questions elicited evidence in
support of the Departrnent’s case aggressively challenged the credibility of the mother

and other witnesses she called to testify, and helped elicit favorable evidence on behalf

of the Departrnent but foreclosed the mother’s attempts to cross-examine or elicit

 

13 Emphasis added

27

No. 76675-9-1/28

favorable testimony ln so doing, the court crossed the line from neutral arbiter to
advocate.l9

Because the court violated the mother’s due process right to a fair trial, we
reverse the order terminating the mother’s parental rights to B,W.K. and remand for a

new trial before a different judge

WE CONCUR:

Méww, /ic<)’ F:‘°L<Q'Y] j 137

 

19 We note this is not the first time we have reviewed a challenge to the interjections and
questions of this trial judge ln |n re Dependency of G.B., 187 Wn. App. 1017, 2015 WL 1979501, at *7,
the same judge "questioned virtually all of the witnesses." The issue on appeal in §_.§ was whether
“certain remarks . . . and the court’s active participation" in the proceedings “exhibited bias and lack of
impartiality." %, 2015 WL 1979501, at *1. The Department conceded in its brief that the judge made
“harsh comments” about the father and "did not cautiously guard its comments.” The opinion focuses on
whether the judge harbored "actual or potential bias” against the father and concluded the record did not
show such bias §_._B_., 2015 WL 1979501, at *3~*8. Because the court participated in the proceedings
“without aligning herself with counsel for any of the parties" we rejected the due process challenge to the
court’s interjections and questions §,_.,l§.l_., 2015 WL 1979501, at *7-*8.

28

