When the Whole Court Can’t Be Trusted

A recent case out of Washington state was so egregious the appellate court not only rejected it, but sent it back to be heard again—in a different county.

Generally, when a case is appealed, the appellate court will either uphold the original decision or “remand” it, meaning they send it back for a do-over, with special instructions from the higher court.

But this case required the court to come up with a whole new option.

“The right to a fair trial before an impartial tribunal is a basic requirement of due process,” Justice Smith wrote for a unanimous Court of Appeals for the State of Washington. “The right to due process is especially critical in a proceeding to terminate parental rights, where so much is at stake for both the parents and the child.”

But the Appeals Court determined that the Snohomish County termination of parental rights trial for parents Nylysha Aradon and Carey Hayes was anything but impartial.

Background

It all began with the birth of a baby on February 24, 2013. When “A.H.” was born, her mother tested positive for methadone. Four days later, the Department of Social Services removed the baby from her parent’s custody and sent her to live with a foster family.

This situation—where a mother tests positive for methadone at birth—is one of the concerns we have with the Child Abuse Prevention and Treatment Act, or CAPTA. The mother’s positive drug test resulted in an automatic call to DSS as a result of CAPTA.

But testing positive for methadone isn’t always a bad thing. Methadone is often prescribed to help mothers with alcohol addiction get off alcohol, especially during pregnancy. And studies have shown that methadone use is safer for both mother and baby than quitting alcohol cold turkey during the pregnancy.

We don’t know this family’s details. We don’t know if the methadone was prescribed or if the mother was under her doctor’s care. We’re not taking a position on whether this baby was a “child in need of care.” Frankly, neither did the appeals court. They were simply concerned, as are we, with the parents’ inability to get a fair trial before their rights were terminated.

And there certainly is reason for concern.

According to the court’s finding, a Volunteer Guardian Ad Litem (VGAL) for the infant stood strongly opposed to returning the baby to her mother and “committed numerous breaches of confidentiality that benefited the foster parent.” In one example, she dug up case files from previous DSS involvement with the parents and gave a copy of the file to the foster family.

She misinformed the parents as the baby’s food needs changed based on new allergy tests, and she blocked the parents from access to the child’s medical providers.

When the VGAL passed away in early 2015, her former supervisor took over the case, and she was little better. The court discovered later that it was she (the supervisor) who illegally secured the case file and delivered it to the late VGAL in the first place.

VGAL system attorneys even advised the court’s own prosecutors in how to proceed against the parents in their termination of rights case.

And here’s the kicker: In Snohomish County, a little north of Seattle, the VGAL program “is an agency of the superior court.” So when the VGAL system took a stance against the parents and worked against reunification, the court through them became adversarial to the parents. When VGAL lawyers assisted prosecuting attorneys, they added to that adversarial nature without notifying the parents of those connections.

To make it worse, “employees of the VGAL Program, and therefore employees of the superior court, also engaged in retaliation against attorneys in the same firm as [the mother’s] attorney.”

Imagine having all of these players working against you, to separate you from your child and end your rights as a parent. Now imagine they all work for the judge who’s hearing your case.

It got so bad the judge actually recused herself. That is, she removed herself from the case because of the apparent conflict of interest.

But then she still entered the order to terminate the parents’ rights.

She made an order in the case, but afterwards she said she shouldn’t be in charge of the case

Finally, the parents’ lawyers appealed the whole mess, and the appeals court struck down the illegal actions of the lower court.

By now the baby is six years old.

The Appeal

How can parents get a fair trial when the entire superior court is working against them to make sure they never see their baby again?

The Appeals Court quoted from the original judge’s recusal memo that “[t]he Superior Court, its direct agents, and its own attorneys, all under the supervision of the judges repeatedly aligned with and literally became a party litigating this case against the parents…throughout the case.” (emphasis added)

Such conditions resulted in a violation of the parents’ rights to due process and the appearance of fairness, forcing the appeals court to reverse the termination order and demand a new trial.

But here’s the line that will make even experienced lawyers stop and read it again: “We remand for a new trial in a county other than Snohomish County” (emphasis added).

It’s bad enough when the appeals court tells the trial court, “You have to do it over because you messed up.” But in this case the abuses were so bad they declared instead (I’m paraphrasing here), “We don’t even trust you to do it over. The parents can’t possibly trust you to do it over.”

“The parents get a do-over,” (I’m still paraphrasing the court), “but they will get it from literally anybody else.”

It’s Not Just Here

We know family courts like this don’t always play by the rules or produce just results. We know they often use “family privacy” as a “veil of secrecy” to hide their own unfair practices. But even in that dark world, this case stands out as especially egregious.

Yet it happened. And that means it may not be the only one. Who knows how many times Snohomish County courts operated like this before a family’s attorney decided to call them out? Who knows how many other courts have swept similar practices under the rug?

Sadly, some parents must lose their parental rights for the protection of their child. Still, every termination proceeding must be carried out with an attention to justice and fair play that matches the seriousness of the potential result.

Termination of parental rights has often been called “the death sentence of the family court;” it must never be taken lightly.

In our system of laws, even an unfit parent must be afforded their day in a fair and unbiased court. Anything less raises the specter of a system that steals children and gives them to favored parents looking for a child to adopt.

Our families—our children—deserve so much better than that.

Through the political voice of ParentalRights.org and the educational and policy voice of the Parental Rights Foundation, we strive to call attention to these abuses so more courts will respond as this appeals court has. We must demand, as the court did, that these wrongs must be fixed.

Your gift today can help us continue this mission of sounding the alarm and demanding better for our families.

Thank you for standing with us to protect the rights of parents, in the interest of protecting the future of our children.

Sincerely,

Michael Ramey

Executive Director