In the Matter of the Dependency of A.E.T.H. (D.O.B.), Minor child.
NYLYSHA STARVION BELAFON ARADON and CAREY ALLEN HAYES, Appellants. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,
right to a fair trial before an impartial tribunal is a basic
requirement of due process. Peters v. Kiff, 407 U.S.
493, 501, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). This right to
due process is especially critical in a proceeding to
terminate parental rights, where so much is at stake for both
the parent and the child. Here, Nylysha Aradon and Carey
Hayes seek reversal of the order terminating their parental
rights to their daughter, A.H. They argue that they were
denied a fair trial before an impartial tribunal. We agree.
the termination trial, and after extensive posttrial
proceedings on allegations of misconduct of the Snohomish
County Volunteer Guardian Ad Litem Program (VGAL Program),
Judge Anita Farris recused herself from the entire
proceedings, including the termination proceeding. Judge
Farris concluded that the parents were "denied their due
process constitutional right to an impartial judge by having
a Snohomish County Superior Judge preside over this
case." Judge Farris explained that "[t]he manner in
which the [VGAL Program] was operated during this case
creates doubt about the Snohomish County Superior Court's
ability to be impartial in this case involving court
employees directly participating in the litigation."
Nevertheless, Judge Farris concluded that entry of the order
was a ministerial act and entered the termination order.
that the parents' due process rights were violated and
that entry of the order was not a ministerial act. Therefore,
we reverse the termination order and we remand to a county
other than Snohomish County for a new trial. We also direct
the trial court to vacate the CR 59, CR 60, and sanction
orders entered after Judge Farris's recusal. On remand,
we direct the court to appoint an attorney and a new guardian
ad litem (GAL) for A.H.
was born on February 24, 2013, to mother Aradon and father
Hayes (parents). At birth, A.H. tested positive for
methadone, and Aradon tested positive for methadone and
marijuana. The parents had a verbal disagreement at the
hospital, and A.H. was possibly dropped into her crib.
Although A.H. was not injured, Hayes was escorted out of the
hospital by security. Four days after her birth, the
Department of Social and Health Services (Department) removed
A.H. from her parents' custody and placed her with a
foster parent with whom she has resided since her removal in
Department filed a dependency petition in Snohomish County
Superior Court (superior court) on February 28, 2013, and
A.H. was found to be dependent as to both parents on May 23,
2013. According to the order of dependency, Aradon's
parental deficiencies included mental health and substance
abuse issues and Hayes' parental deficiencies included
substance abuse and a long-term domestic violence problem.
The superior court ordered the parents to engage in services
and gave each parent four hours of supervised visitation per
the dependency, the superior court appointed Denise Brook to
serve as the volunteer guardian ad litem (VGAL). VGAL Brook
was a volunteer with the VGAL Program, which is an agency of
the superior court. The VGAL Program's staff members are
considered court employees.
undisputed that VGAL Brook believed it was in A.H.'s best
interests to remain permanently with the foster parent and
that VGAL Brook opposed expanded visitation with the parents.
During her time on the case from 2014 to 2015, VGAL Brook
committed numerous breaches of confidentiality that benefited
the foster parent. She disclosed previous parental
terminations and the parents' criminal records to the
foster parent. She also lobbied the VGAL Program to cancel
parental visitations if a strict food plan, which the parties
later discovered was medically unnecessary, was not followed.
At the same time, she opposed giving the parents access to
A.H.'s medical providers. She also tried to attend a
parenting class to observe A.H. and Aradon without
Aradon's knowledge after an instructor told her she could
not attend for confidentiality reasons.
Brook died in January 2015. In February 2015, the superior
court appointed Susan Walker, VGAL Brook's program
coordinator and an employee of the VGAL Program, as the
replacement VGAL. The declaration submitted by VGAL Walker in
support of her motion replacing VGAL Brook simply states that
"'Ms. Brook is no longer able to work the
case.'" No one notified the superior court or the
parties that VGAL Brook had died.
Walker was largely uninvolved in the case from the time of
her appointment until the termination trial in August 2015.
During her seven-month tenure as the VGAL, Walker contacted
only one service provider for one parent, observed only one
parent at one visit, and never personally spoke to the
parents. And despite concerns that A.H. was allergic to
certain foods, VGAL Walker never contacted A.H.'s medical
providers and did not inform the parents when A.H.'s
issues were resolved and her food intake no longer needed to
be restricted in the same ways previously communicated.
six-day termination trial began on August 26, 2015, before
Judge Farris. Many people testified, including both parents,
VGAL Walker, several social workers, and several service
providers. VGAL Walker's testimony was particularly
troubling, and Judge Farris found it to be "uninformed,
inconsistent, dishonest, and biased." Judge Farris
described seven specific instances during trial when VGAL
Walker's testimony lacked candor. In one of those
instances, VGAL Walker testified that she could not recall
whether VGAL Brook sent the parents' criminal records to
the foster parent's adoption agency. But during VGAL
Walker's cross-examination, Aradon's attorney
revealed an e-mail obtained from the VGAL Program during
discovery that referenced an attachment appearing to be
criminal records. Concerned that a VGAL would illegally
forward criminal records to the adoption agency, Judge Farris
ordered the VGAL Program to produce the attachment, which it
had not turned over as part of discovery.
VGAL Program produced the requested attachment. The
attachment revealed that VGAL Walker was the person who
requested and sent the criminal records to VGAL Brook, who
then illegally sent them to the foster parent's adoption
agency. During a hearing on September 11, 2015, Judge Farris
determined that VGAL Walker was deliberately untruthful about
her knowledge of the e-mail and attachment and expressed her
disappointment and shock at the behavior of the VGALs and the
VGAL Program in this case. After discussing other issues of
credibility and bias of the VGALs and the VGAL Program, Judge
Farris decided not to give VGAL Walker's testimony any
weight. In the oral ruling, Judge Farris terminated the
parents' parental rights to A.H. Judge Farris also
ordered the VGAL Program to "produce all documents,
including emails, notes of all communications had with the
foster parents and with the adoption agency." Judge
Farris did not enter written findings or a written order of
termination at this time.
after trial, Aradon's attorney filed a formal complaint
against VGAL Walker with the superior court. In October 2015,
the parents moved to remove VGAL Walker based on her
misconduct. In response to this motion, Sara Di Vittorio, an
attorney with the civil division of the Snohomish County
Prosecutor's Office, wrote a threatening letter on behalf
of the VGAL Program to Aradon's attorneys on November 3,
2015. In that letter, Di Vittorio demanded that the attorneys
"cease disclosing" confidential information about
VGALs in court filings and in conversations with other
members of the legal community, or the VGAL Program would
"consider further legal steps." At the end of
November 2015, the superior court notified Aradon's
attorney that his administrative complaint against VGAL
Walker was deemed unfounded but that it had prompted the
superior court to reassess and clarify the VGAL Program's
this time, Kirsten Haugen, a staff attorney for the VGAL
Program who also represented VGAL Walker, met with Di
Vittorio and other lawyers and administrators for the
superior court and discussed the motion to remove VGAL
Walker. Di Vittorio advised Haugen to oppose the parents'
motion to remove VGAL Walker by filing motions to strike and
redact based on CR 11 and a local confidentiality rule. Di
Vittorio's assistance to Haugen, who represented a party
adversarial to the parents, was not disclosed to the
of the VGAL Program, and therefore employees of the superior
court, also engaged in retaliation against attorneys in the
same firm as Aradon's attorney. For example, they issued
boilerplate objections to all discovery requests in every
case involving that firm, refused to allow the firm's
attorneys to enter the VGAL office without an escort, and
contacted the firm's financial authority, the Office of
Public Defense, as payback for the administrative complaint
against VGAL Walker.
December 2015, Judge Farris entered an order continuing the
parents' motion to remove VGAL Walker to January 2016 to
allow the parties time to gather evidence in support of a
full evidentiary hearing on the parents' motion to remove
VGAL Walker. Judge Farris also ordered "that the issue
of whether the Court's prior termination decision can
stand in light of any GAL improprieties found shall not be
heard at the next hearing and shall be set for a date
following the entry of final findings on the motion to remove
January 29, 2016, Judge Farris allowed VGAL Walker to
withdraw from the case without a hearing. On February 11,
2016, Judge Farris appointed Paige Buurstra, an attorney
guardian ad litem (AGAL), as GAL to A.H.
Farris held several evidentiary hearings in February 2016
related to the discovery issues and VGAL misconduct in the
case. The parents' attorneys presented evidence that the
VGALs resisted liberalized visitation for the parents, argued
to impose onerous services on the parents, and engaged in
abusive litigation tactics.
Farris found that VGAL staff attorney Haugen proffered
untruthful testimony during the hearings. For example, Haugen
submitted a declaration from VGAL Walker that stated
A.H.'s most current allergy testing occurred in 2014. But
the most current allergy testing actually occurred in 2015
and showed that "the food list pushed by the GAL was
preventing [A.H.] from eating foods she could eat, and, more
importantly, was failing to warn [that A.H.] should not be
fed tree nuts due to potential allergies." Haugen also
argued that VGAL Brook's decision to send confidential
information about A.H.'s siblings to the foster
parent's adoption agency was harmless because the agency
had handled the adoptions of all nine of A.H.'s siblings
and thus already had the information. But the adoption
agency's agent later testified that it had handled only
one of the sibling's adoption.
Judge Farris found that "abusive litigation tactics were
used for improper purposes during these proceedings."
Most notably, VGAL Brook's entire hard copy case file,
which was in the VGAL Program's possession,
"mysteriously disappeared without a trace or any
explanation in the middle of post-trial proceedings about
misconduct of that VGAL." The VGAL Program also employed
"document dumps" during posttrial production to
make it hard to find information, destroyed or withheld
case-related e-mails, and made false or misleading statements
to cover up prior misconduct.
March 4, 2016, as a result of the VGAL misconduct that
occurred and was uncovered during these evidentiary hearings,
the parents filed a motion to vacate the decision to
terminate their parental rights and for discovery sanctions
against the VGALs and the VGAL Program. Judge Farris heard
argument and testimony on this motion in late March 2016. On
June 10, 2016, Judge Farris orally denied the motion.
Although Judge Farris determined that there was
"pervasive and egregious" misconduct by the VGALs
and the VGAL Program in this case, Judge Farris found that
the misconduct "did not affect the verdict and did not
prevent a fair procedure."
September 6, 2016, the parents filed a new motion for
sanctions against the VGAL Program, Haugen, and Snohomish
County Superior Court Administration requesting substantial
sanctions for each discovery violation and false fact
presented since October 2015. The superior court, on behalf
of the VGAL Program, opposed the motion, arguing that it was
not a party to the termination and that Judge Farris could
not impose sanctions against the superior court. Judge Farris
held a hearing on the sanctions motion on September 23, 2016.
During this hearing, Di Vittorio represented both the VGAL
Program and the superior court.
October 28, 2016, the superior court moved for Judge Farris
to recuse herself from the sanctions portion of the
proceeding, strenuously arguing that as a member of the
superior court, Judge Farris had a conflict of interest in
hearing the motion for sanctions. On November 18, 2016, Judge
Farris held a hearing on the recusal motion and decided she
needed to recuse. In a subsequent hearing on February 17,
2017, Judge Farris heard argument as to whether it was still
possible to enter a final written order on termination, which
had been prepared for her signature.
17, 2017, Judge Farris entered an "Order Regarding Entry
of Trial Findings and Order on Recusal" (recusal order)
and recused herself from the entire proceeding, including the
termination trial. Judge Farris also entered a written
termination order. Judge Farris did not rule on the
parents' outstanding sanctions motion. After her recusal,
Judge Farris entered a 317-page memorandum decision
explaining in great detail her reasons for recusing. Below is
the table of contents from that memorandum decision:
WAY THE VGAL PROGRAM WAS OPERATED DENIED THE PARTIES THE DUE
PROCESS RIGHT TO AN IMPARTIAL JUDGE. . . .
A. Judicial conflicts were created by the following: using
court employees as parties, lawyers and witnesses with no
ethical boundaries or firewalls in place; allowing the court
(VGAL Program) to enter into the case as a litigant and be
represented by a lawyer; using one lawyer to simultaneously
represent the GAL party and the Superior Court; and using the
same lawyer that represented the Superior Court and its
judges to also represent and assist the GAL's lawyer in
litigating this case against the parents. . . .
B. Snohomish County Superior Court asserted a Snohomish
County Judge cannot rule on matters involving the VGAL
Program or its employees because the VGAL Program is the
Superior Court, the acts of VGAL Program employees are the
acts of the Superior Court, and judging or sanctioning the
acts of VGAL Program employees is the Judge judging or
sanctioning himself or herself. . . .
C. If the VGAL Program/Superior Court's assertion that
all acts of VGAL employees are acts of the Superior Court is
true, there is an appearance the Snohomish County Superior
Court acted as judge, party, lawyer and witness in this one
case. . . .
D. If Snohomish County Superior Court Judges are disqualified
from hearing a motion seeking sanctions against a VGAL
Program attorney because sanctions that impact the VGAL
Program impact the Superior Court, then they are also
disqualified from hearing other matters that impact the VGAL
Program. . . .
E. There is no factual, logical or legal reason the grounds
for disqualification apply only to the Motion for Sanctions.
. . .
F. Recusal is constitutionally required to maintain the right
to an impartial judge because there was no ethical boundary
protocol or firewall to separate the Superior Court and its
Judges from the VGAL Program in this pending litigation. . .
G. The VGAL Program claims the way it is structured creates a
system where the only way opposing parties can obtain
protection from VGAL attorneys engaging in abusive litigation
tactics is by litigating against the Superior Court; if that
is true, opposing parties are denied ...