§59.06 The Termination Trial

• Jurisdiction: Washington

§ 59.06 THE TERMINATION TRIAL

"Parents have a fundamental liberty and privacy interest in the care and custody of their children." . . . 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 proceeding. . . . This case implicates due process under the state and federal constitutions because "[a] fair trial in a fair tribunal is a basic requirement of due process."

In re Dependency of A.N.G., 12 Wn. App, 2d 789, 793, 459 P.3d 1099 (2020) (quoting In re Welfare of R.H., 176 Wn. App. 419, 425, 309 P.3d 620 (2013), and In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)); see also Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed 2d. 599 (1982) (plurality opinion); In re Welfare of D.E., 196 Wn.2d 92, 102, 469 P.3d 1163 (2020) ("[P]arents have a fundamental liberty interest in the care, custody, and management of their children."). This right "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santoskv, 455 U.S. at 753. Accordingly, when the State seeks to terminate parental rights "it must provide the parents with fundamentally fair procedures" Id. at 753-54.

The hearing on the termination petition is a bench trial. Termination trials, like all hearings in dependency cases, are open to the public unless the court finds that excluding the public is in the best interests of the child. RCW 13.34.115(1). (See also In re Adoption of M.S.M.-P., 181 Wn. App. 301, 308, 325 P3d 392 (2014), where the court stated that "Article I, section 10 guarantees the public open access to judicial proceedings and court documents in civil and criminal cases.")

"[D]ue process requires that parents have the ability to present all relevant evidence for the . . . court to consider prior to terminating a parent's rights." Welfare of R.H., 176 Wn. App. at 426. The rules of evidence apply. Notice of the filing of a termination petition must be served upon the parent, guardian, or legal custodian. The notice provides the parent with a copy of the termination petition and a statement of rights. RCW 13.34.180(6).

Many jurisdictions require a hearing prior to the termination trial itself. This hearing is often called a preliminary hearing or a "first set." The purpose of these hearings is to default any parties who do not appear, to set the matter over for trial if the parties appear and indicate a wish to contest the termination petition, and to address other pretrial matters.

The parent has a right to due process and a meaningful opportunity to be heard at the hearing to terminate parental rights before the parent's parental rights may be terminated. In re Dependency of A.D., 193 Wn. App. 445, 450, 376 P.3d 1140 (2016). The Court of Appeals has held there is no due process right for an incarcerated parent to be present at the hearing. In re Dependency of M.S., 98 Wn. App. 91, 988 P.2d 488 (1999). The right to be heard is not self-executing. The parent may testify by telephone or submit an affidavit or a deposition of his or her testimony. See also In re Interest of Darrow, 32 Wn. App. 803, 806, 649 P.2d 858, review denied, 98 Wn.2d 1008 (1982). The Washington Supreme Court reviewed the parameters for an incarcerated parent to participate in In re Welfare of M.B., 195 Wn.2d 859, 467 P.3d 969 (2020), and held that, if an incarcerated parent is not physically present, the parent must be given a meaningful opportunity to be heard and defend through alternate procedures.

A parental rights termination proceeding may proceed to judgment in the absence of the parent or anyone representing the parent's interests without violating the parent's right to due process of law if the parent has been given notice of the proceedings and the trial court conducts a full hearing on the termination petition at which procedural safeguards are respected, the court's findings are supported by the evidence, and the findings support the court's conclusions of law. In re Dependency of E.P., 136 Wn. App. 401, 149 P.3d 440 (2006). The procedure employed must satisfy due process of law. Dependency of A.D., 193 Wn. App. at 451.

In any proceeding under Chapter 13.34 RCW, if DSHS submits a report to the court "recommending a new placement or a change in placement, the department shall include the documents relevant to the persons in the home in which a child will be placed[.]" RCW 13.34.400.

[1] Witnesses

The witnesses presented...