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holding that appellant's due process right to be physically present in the courtroom was not violated by conducting a hearing over Zoom during the COVID-19 pandemic when nothing in the hearing transcript suggested that there were connectivity issues or that the parties expressed difficulty observing the witnesses or hearing the court such as could cause errors in the trial court's credibility determinations
Summary of this case from Montgomery v. StateOpinion
No. 82044-3-I
12-13-2021
In the MATTER OF the DEPENDENCY OF: G.L.L. Minor Child.
Kristin Lianne Timm, Law Office of Brice & Timm, 1223 Broadway, Everett, WA, 98201-1715, Christopher Mark Petroni, Tiffinie Bie Ha Ma, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-1683, for Appellant. Usama Ahmed, Office of Attorney General, 3501 Colby Ave. Ste. 200 Everett, WA, 98201-4795, for Respondent.
Kristin Lianne Timm, Law Office of Brice & Timm, 1223 Broadway, Everett, WA, 98201-1715, Christopher Mark Petroni, Tiffinie Bie Ha Ma, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-1683, for Appellant.
Usama Ahmed, Office of Attorney General, 3501 Colby Ave. Ste. 200 Everett, WA, 98201-4795, for Respondent.
PUBLISHED IN PART
Hazelrigg, J.
¶1 B.L. appeals from a Snohomish County Juvenile Court order terminating her parental rights as to her daughter, G.L.L. She asserts that (1) she received inadequate notice that the Department of Children Youth and Families (Department) sought termination based in part on her deficient parenting skills, (2) substantial evidence does not support the finding that the Department offered her all necessary services because it did not offer her housing services, (3) substantial evidence does not support a finding of a mental-health-related deficiency, (4) her due process rights were violated when the court held the hearing via Zoom, and (5) several findings of fact are not supported by sufficient evidence. Because B.L.’s due process rights were not violated, she received adequate notice of the various bases for the termination, and substantial evidence supports the trial court's findings of facts, we affirm.
FACTS
¶2 In December 2018, the Department of Children, Youth, and Families filed a dependency petition for G.L.L. It was the second dependency the Department had filed as to this child and the mother, B.L. Dependency was established in March 2019 after the court accepted B.L.’s stipulation to that fact, and the Department filed for termination of B.L.’s parental rights in January 2020. The Department alleged in its petition that B.L.’s deficiencies included "mental health issues, chronic substance abuse issues, lack of parenting skills, and lack of safe and stable housing." In September 2020, the juvenile court held a fact-finding hearing and terminated B.L.’s parental rights. B.L. appeals.
ANALYSIS
I. Due Process Claim
¶3 B.L. argues her due process rights were violated when her termination fact-finding hearing was held via Zoom due to COVID-19 restrictions in effect at the court. She argues because every witness (except B.L. herself) testified over Zoom, the court's ability to make credibility determinations was impeded and the proceedings were impacted by risk of error due to "Zoom fatigue." The Department concedes that B.L. has a fundamental interest in the care and custody of her child, and that G.L.L. shares this interest until the Department proves parental unfitness. However, the Department argues the hearing had sufficient procedural safeguards because B.L. was physically present in the courtroom alongside her attorney, the proceeding was relatively short, and the trial court was able to properly make credibility determinations.
"Zoom" is a cloud-based peer-to-peer video conferencing software platform that is used for teleconferencing, telecommuting, distance education, and social relations.
Novel Coronavirus-19.
Exhaustion from peer-to-peer video conferencing. See Liz Fosslien & Mollie West Duffy, How to Combat Zoom Fatigue, Harvard Bus. Review (Apr. 29, 2020, 5:00 PM), https://hbr.org/2020/04/how-to-combat-zoom-fatigue.
¶4 Alleged due process violations are reviewed de novo. In re the Dependency of W.W.S., 14 Wash. App. 2d 342, 353, 469 P.3d 1190 (2020). A parent's due process rights in a termination proceeding "ordinarily include[ ] the right to be present," but a hearing may still comport with due process if the parent is not physically present but is still "given a meaningful opportunity to be heard and defend through alternative procedures." In re Welfare of M.B., 195 Wash.2d 859, 868, 467 P.3d 969 (2020). This court applies the Mathews v. Eldridge test to determine whether a violation of due process has occurred. 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). This test balances: (1) the private interests affected, (2) the State's interest in using the challenged procedures, and (3) the risk of erroneous deprivation due to the procedures used. In re Welfare of D.E., 196 Wash.2d 92, 102, 469 P.3d 1163 (2020).
¶5 This court recently held that a termination hearing conducted via Zoom did not violate a parent's right to a meaningful opportunity to be heard. In re Dependency of J.D.E.C., 18 Wash.App.2d 414, 491 P.3d 224 (2021).However, in J.D.E.C., the trial court "weighed the Mathews factors at the outset of trial," while the court in B.L.’s case stated only "I believe that the processes that we have in place protect the parties due process rights, and we are able to manage the appearance of parties via Zoom." When B.L. made her objection just before trial began, the juvenile court again neglected to expressly conduct the Mathews balancing test on the record, instead stating "I am not seeing good cause or really a sufficient reason being put forward to revisit the denial of the motion."
Id. at 424.
One judge heard B.L.’s initial objection to a virtual proceeding, and a second considered her renewed objection at the beginning of the termination hearing.
¶6 As trial courts continue to hold proceedings virtually, judges should conduct the Mathews analysis on the record to ensure the proceeding comports with due process and to provide a sufficient record on appeal.
¶7 However, the specific due process challenge raised here differs from that raised in J.D.E.C. B.L. does not claim, as the father in J.D.E.C. did, that use of a remote platform to conduct the proceeding impacted her ability to meaningfully participate or communicate with counsel. In fact, the record before us indicates that the judge expressly made accommodations, consistent with the court's COVID-19 plan and procedures, so that the mother could be present in court with her counsel throughout the termination hearing. B.L. claims that she, her attorney, and the court were unable to properly make credibility determinations as to the various witnesses based on their remote testimony. However, the court did, in fact, make credibility determinations at the conclusion of the proceedings. B.L. fails to engage with them in her briefing to explain which of these determinations were erroneous, or specifically how they may have been impaired by the Zoom testimony.
¶8 Like the father in J.D.E.C., B.L. was afforded the opportunity to have the judge evaluate her credibility in person. B.L.’s attorney was also physically present in the courtroom. While all other witnesses were required to appear via Zoom, B.L. was able to view each witness’ testimony from the courtroom. B.L. was in person for the entirety of the fact-finding hearing and was able to consult with her attorney in person, unlike the father in J.D.E.C., who appeared telephonically and had to request a breakout room to consult with his attorney privately. See Id. at 422-23.
¶9 Nothing in the hearing transcript suggests that there were connectivity issues or that the parties expressed difficulty observing the witnesses or hearing the court. Further, the record demonstrates that the court took regularly scheduled breaks, which is one of the recommended strategies to mitigate "Zoom fatigue." While B.L. argues that one of the ways her due process rights were violated by the remote testimony was that she and her counsel may have asked different questions on cross-examination, she fails to provide even a single example of a question she would have posed or how her examination would have otherwise differed had the witnesses testified in person. Finally, it is worth considering in the context of this particular challenge that credibility determinations are based on more than visual cues, which is at least part of the reasoning behind CR 43(a)(1) which expressly allows for "testimony in open court by contemporaneous transmission from a different location."
¶10 This court has held that "[t]he trial court is in a better position to make credibility determinations, and if substantial evidence exists, this court will not substitute its judgment for that of the trial court on appeal." Currier v. Northland Servs., Inc., 182 Wash. App. 733, 741, 332 P.3d 1006 (2014). Without anything to indicate errors in the judge's credibility determinations, B.L. has failed to demonstrate prejudice. However, we remind counsel and the court of the duty to note issues for the record when they arise as courts continue to hold virtual hearings.
II. All Necessary Services
¶11 B.L. alleges the trial court erred in finding she was offered all necessary services under RCW 13.34.180(1)(d), because the Department failed to offer her housing services.
¶12 We review a trial court's decision to terminate parental rights for substantial evidence. In re D.H., 195 Wash.2d 710, 718, 464 P.3d 215 (2020). "The trial court's findings will not be disturbed unless there is an absence of clear, cogent, and convincing evidence in the record." Id. In a termination proceeding, the Department must establish "the six elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence." Id.
A. Whether Housing is a Necessary Service
¶13 Under RCW 13.34.180(1)(d), the Department must demonstrate it provided all necessary and court-ordered services. Id. B.L. does not allege housing was a court-ordered service, but rather argues that it is a "necessary service." "The inquiry is not limited to services ordered by the court," but whether the Department "offered all necessary available services." In re I.M.-M., 196 Wash. App. 914, 921, 385 P.3d 268 (2016). A necessary service is one " ‘needed to address a condition that precludes reunification of the parent and child.’ " D.H., 195 Wash.2d at 719, 464 P.3d 215 (internal quotation marks omitted) (quoting In re K.M.M., 186 Wash.2d 466, 480, 379 P.3d 75 (2016) ). " ‘[W]hen a "condition" precludes reunion of a parent and child [ ] regardless of whether it can be labeled a "parental deficiency", the State must provide any necessary services to address that condition.’ " K.M.M., 186 Wash.2d at 479, 379 P.3d 75 (quoting In re Welfare of C.S., 168 Wash.2d 51, 56 n.3, 225 P.3d 953 (2010) ).
¶14 In Washington State Coalition for the Homeless v. Department of Social and Health Services, the Washington State Supreme Court held the trial court in a dependency proceeding could order the Department to provide housing assistance in cases where "homelessness is a primary factor in the decision to place or keep a child in foster care." 133 Wash.2d 894, 901, 949 P.2d 1291 (1997). The Court was explicit that assistance was limited to cases "where lack of adequate housing is the primary factor in the out-of-home placement." Id. at 925, 949 P.2d 1291. Several courts, including this court, have relied on this case in unpublished opinions to hold housing is not a necessary service for purposes of determining if the Department has offered all necessary services in a termination proceeding. We disagree.
In July 2018, the Department of Social and Health Services (DSHS) transferred child welfare responsibilities to the Department of Children, Youth and Families. RCW 43.216.906
See In re Dependency of Z.M.Y., No. 37674-5-III, 2021 WL 2443777 (Wash. Ct. App. June 15, 2021) (unpublished), https://wwww.courts.wa.gov/opinions/pdf/376745.pdf; In re Dependency of M.–K.G.P., No. 76202-8-I, 2018 WL 418906 (Wash. Ct. App. Jan. 16, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/762028.pdf.
¶15 First, we note that unpublished opinions of this court may be accorded persuasive value, but are not binding upon this court. GR 14.1(a). Second, Coalition for the Homeless is distinguishable. There is a difference between a trial court's authority to order the Department to provide services during a dependency, and the trial court's authority to decide whether the Department has provided all necessary services as a prerequisite to terminating a parent's rights. Coalition for the Homeless dealt explicitly with a trial court's authority to order services during a dependency, which is not the case here. It seems nonsensical that the Department could rely on lack of housing as a parental deficiency to terminate a parent-child relationship without ever providing housing services.
Coalition for the Homeless noted that "[a] social worker employed by DSHS testified by affidavit that the parents’ procurement of safe and stable housing is a precondition to the return of the children in 90 percent of her caseload." 133 Wash.2d at 921 n. 7, 949 P.2d 1291.
¶16 We disagree with the Department that housing was not a necessary service because it was not identified as a "primary factor" preventing reunification of G.L.L. and B.L. in review hearings. Lack of safe and stable housing was explicitly identified as a parenting deficiency in the termination petition. As such, it certainly could have precluded reunification. This makes it a necessary service. See K.M.M., 186 Wash.2d at 479, 379 P.3d 75. However, resolution of this question does not end our inquiry.
The panel has determined that the remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.
WE CONCUR:
Smith, J.
Andrus, A.C.J.