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In re Dependency of A.E.T.H.

Court of Appeals of Washington, Division 1

August 12, 2019

In the Matter of the Dependency of A.E.T.H. (D.O.B.), Minor child.

          SMITH, J.

         The 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.

         After 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.

         We hold 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.


         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 2013.

         The 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 week.

         During 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.

         It is 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.

         VGAL 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.

         VGAL 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.

         The 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.

         The 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.

         Shortly 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 complaint procedure.

         Around 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 parents' attorneys.

         Employees 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.

         In 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 GAL."

         On 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.

         Judge 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.

         Judge 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.

         Finally, 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.

         On 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."

         On 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.

         On 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.

         On May 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:


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 ...

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