          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the 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 of A.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 to A.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 right to 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 responsibilities to the Department of Children, Youth and Families. RCW43.216.906.
No. 80004-3-1/2

on the judge’s failure to recuse himself as a result of the role he played in her prior

terminations. We agree with Gonzales as to the due process claim, reverse and

remand for a new trial and do not reach her other assignments of error.


                                             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 for A.N.G. and he lost weight. In

July 2017, the department filed a dependency petition and the court removed

A.N.G. from Gonzales’ care due to her failure to meet his medical needs.

        In October 2017, Gonzales agreed to dependency, acknowledging parental

deficiencies involving her history of substance abuse and her failure to schedule

and attend medical appointments for A.N.G.                   Gonzales further agreed to a

dispositional plan meant to address concerns about substance abuse. The court

ordered her to regularly attend A.N.G.’s medical appointments as scheduled and

to demonstrate an ability to apply the skills necessary to care for her child.

        A trial was set to adjudicate termination of Gonzales’ parental rights. Prior

to Gonzales’ arrival on the morning of trial, the AAG for the department informed

the judge of his involvement in the prior case as the AAG who sought and obtained

the termination orders as to the two older children. Gonzales’ attorney advised the

judge, “you were opposing counsel at the time and [Gonzales] did default at that

time. I understand for today’s proceedings that she is on her way and would like



        ~ The alleged father of A.N.G. was identified by the department and his parental rights were
terminated in separate proceedings unrelated to this appeal.


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No. 80004-3-1/3

to proceed with the trial today.” The judge indicated that he did not remember

Gonzales or the prior proceedings. Gonzales’ attorney asked that the judge inform

the parties if he recognized Gonzales when she arrived.

       When Gonzales arrived later, the judge informed the parties he did not have

a recollection of Gonzales but did not address the potential conflict or obtain a

waiver. The court then heard testimony from Gonzales and a number of witnesses,

including A.N.G.’s caregivers, social workers and guardian ad litem. The court

marked and admitted a number of exhibits; among those marked, but not admitted,

were termination orders as to two of Gonzales’ older children, drafted by the judge

in his capacity as the AAG for the department. At the conclusion of trial, the court

issued written findings that the department had met its burden of proving all

elements of RCW 13.34.180(1), that Gonzales was unfit, and that termination 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 improperly considered, that many of the court’s findings of fact were

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 of the right to a fair trial. We first address Gonzales’ claim that the

judge violated her constitutional right to due process by not recusing himself, or in

the alternative, obtaining a knowing, voluntary and intelligent waiver from

Gonzales.


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       “Parents have a fundamental liberty and privacy interest in the care and

custody of their 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 or other custody proceedings. k~.

       This case implicates due process under the state and federal constitution

because “[a] fair trial in a fair tribunal is a basic requirement of due 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 of an 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 proof of actual bias,

just the risk of such bias. Williams v. Pennsylvania, 136 5. Ct. 1899, 1905, 195 L.

Ed. 2d 132 (2016). The inquiry requires that “[t]he Court asks not whether a judge

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 if a judge 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




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No. 80004-3-1/5

a decision based solely on the evidence adduced at the hearing, and to an

unbiased fact finder.”

       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 of this fact, independent of the assertions of counsel prior to the start of

trial, in the form of the final orders terminating Gonzales’ parental rights to those

children. While not admitted as trial exhibits, the record suggests that the orders

were considered by the court in reaching its termination decision as to A.N.G.

       The judge explained that during the dependency at issue here, prior to his

judicial appointment, he was “wholly reassigned to Western Washington

University” and he had not been assigned to A.N.G.’s dependency case. As such,

he did not believe there was a basis for recusal. Gonzales’ attorney did not request

recusal but only asked that the judge advise the parties if he recognized Gonzales

when she arrived. This discussion was conducted on the record, but outside

Gonzales’ presence, prior to her arrival in court. When Gonzales arrived, the judge

only stated, “Morning Ms. Gonzales.        And to answer the question you raised

preliminarily here, [defense counsel], um, I do not recall by seeing your client [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 the judge’s role in the termination of her rights as to

her older children or her right to seek his recusal in the instant case.



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       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 of the judge’s prior involvement and had actually filed a motion

for removal of the judge after having already filed an affidavit of prejudice against

another judge. Unlike Dominciuez, it is not clear that Gonzales was aware of the

judge’s involvement in her prior cases. Further, it appears that a significant fact

for Division Ill was that the judge in that case had both previously represented the

defendant and prosecuted him.        This was not the 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 is that criminal proceedings are not inherently interrelated

the way parental termination proceedings are.

       Gonzales properly points out that the prior termination 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 to this testimony regarding her deficiencies from the prior cases

and the judge overruled her. There was also discussion of A.N.G.’s relationship

and placement with the older siblings who were living with a relative due to the



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terminations. Further, Gonzales’ entire parental history was relevant in terms of

evaluating her current fitness to parent A.N.G. ~ In re Dep. of Brown, 149 Wn.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 of fairness doctrine which is distinct

from the due process argument raised by Gonzales. “The appearance of fairness

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 of the constitutional right to a fair tribunal is a structural error that 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 agree with Gonzales that due process analysis is the proper framework

for the question presented.      The record reflects that evidence from the prior

proceedings was relied upon in this case and, as such, the judge’s involvement in

those cases was relevant to the due process analysis. The record also raises the

question of whether Gonzales was even aware of this judge’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

or the court, we must reverse. The proper procedure in this situation is to conduct



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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 intelligent waiver.4

        The only discussion on the record in this case was between the judge and

attorneys before Gonzales was present in court and the judge’s comment upon

her arrival was so vague as to be an insufficient basis from which to infer that she

had been properly appraised of the 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 of error.

        Reversed and remanded for a new trial.




                                                            —~




WE CONCUR:




     c~~4                                                       L~,                     I.
                                                                                   (ci
         ~ We recognize that some termination orders are entered as a result of default by the
parent, which could appear to conflict with our directive to obtain a proper waiver from that parent
where recusal is at issue. In such situations, the court should err on the side of protecting the
 parent’s due process rights in this highly specific context of termination, recuse and seek a different
judge for entry of the default order.

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