In Re: A.m. E.m. v. Dshs ( 2014 )

FILED
COURT OF APPEALS
DIVISION II
2014 DEC 16
AN 8: 37
ST'
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Dependency of No. 46515 -9 -II
Consolidated with No. 46518 -3 - II)
A.M.,
Minor Child. UNPUBLISHED OPINION
In re the Dependency of
A.D.M.
Minor Child.
JOHANSON, C. J. — EM is the mother of two boys, ADM and AM,1 whom the juvenile
court found to be dependent children. We granted discretionary review of the juvenile court' s
decision to clear the courtroom of the public, including the mother and both counsel, during a
dependency review status hearing so the court could hear privately from the children about their
1 To provide some confidentiality, we use the juveniles' and their family members' initials in the
case caption and in the body of the opinion.
Consol. Nos. 46515 -9 -II / 46518 -3 -II
2
placement during the dependency. The Department of Social and Health Services ( DSHS)
concedes that the juvenile court erred. We accept this concession; hold that the juvenile court
erred in excluding the public, including the children' s mother and counsel, without first examining
each of the Ishikawa3 factors; vacate the June 26, 2014 order and oral decisions; and remand for
further proceedings.4
FACTS
On June 5, 2014, the juvenile court issued a first dependency review hearing order finding
AM and ADM dependent. 5 The juvenile court placed the children with their paternal uncle after
a " hotly contested" hearing. Clerk' s Papers ( CP) ( AM) at 22.
On June 26, the juvenile court held a status conference to address the children' s placement
with their uncle. When the hearing began, the children' s court appointed special advocate (CASA)
moved to clear the courtroom, stating that "[ t] he boys would like to talk to [ the court] in private
today." CP ( AM) at 21. the mother' s counsel objected, arguing that there was no authority to
exclude the mother or her counsel from the courtroom and that the right to presence was
constitutionally protected. DSHS also objected, arguing that the Ishikawa factors were " not met
here." CP ( AM) at 21. DSHS also argued that it would constitute improper ex parte contact.
The juvenile court ruled,
2 We also consolidated the two cases and accelerated review.
3 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P. 2d 716 ( 1982).
4 Our commissioner has already determined that the mother is an aggrieved party. Neither party
has moved to modify the commissioner' s ruling; accordingly, we do not address this issue again.
5 The June 5, 2014 order is not at issue in this appeal.
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Consol. Nos. 46515 -9 -II / 46518 -3 - II
In terms of the Ishikawa factors, I' ll have some more specific findings but I believe
that the dependency review hearing was designed to move forward with
reunification with parents and also to determine what' s in the best interest of the
child. And I' ll make a note that both [ DSHS] and [ the mother] are objecting, and
I' ll find that clearing the courtroom of other parties and the public is the least
restrictive means available, in terms of protecting the interest of the two boys that
are at issue here, that we' ll have a record of the proceedings and you' re certainly
entitled to a transcript of that, that I think the entire process is pretty intimidating
for children, and that it' s not going to take the place of testimony in any kind of
contested hearing. It' s simply to determine whether the children feel safe at this
time in their current placement. As you know, we had a change in placement which
was relatively hotly contested, so I would like to know how the boys are feeling
about that in a less intimidating style.
I will state for the record there are probably about 20 people in the
courtroom, so I will exclude everybody and enter an order to that effect.
CP ( AM) at 22 -23.
The juvenile court had everyone leave the courtroom except the children6 and the CASA.
The court then asked the children about their current placement with their uncle, their summer
plans, and whether they had started counseling. It also invited the children to tell the court what
they wanted to talk about with the court. The children stated that ( 1) they wanted be sure that
when they were eventually reunited with their mother, they would be " safe" and would still be
able to visit their uncle and his family, (2) they felt safe where they were currently living, and (3)
they wanted to be able to visit their mother.
The court told the children that it was important for them to tell their CASA " what kind of
things would make [ them] feel safe" so the CASA could report this to the court when their mother
was available for reunification. CP ( AM) at 26. The CASA responded, " They have been
6 The boys were 12 and 13 at the time of the hearing.
7 It appears that the mother was incarcerated at the time of this hearing.
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reporting and that was our concern, some of the things they have been telling us that have gone on
before." CP ( AM) at 26. The juvenile court replied,
I don' t remember anything about that, but everybody else needs to hear that part of
it. I just want to know that you feel safe here, because that was a concern when we
had you moved to your uncle' s. I want to make sure that' s something that you guys
wanted to do. So that was okay?
CP ( AM) at 26 -27. The boys said that it was " okay." CP ( AM) at 27. The court then asked them
about their summer plans, and they told the court they were going to a summer camp. The court
also asked if they were going to counseling; they said that they had " just got in" and were going
to start soon. CP ( AM) at 28.
The court then told the boys that it would share what they had said with everyone when
they returned to the courtroom. The CASA told the court, " Their concern was when their mom
heard they were going to talk to you this afternoon, they are going to get yelled at." CP ( AM) at
29. The court responded, " I can' t help that." CP ( AM) at 29.
The juvenile court allowed everyone back into the courtroom and described the above
conversation. The court also stated that the current hearing was only a status conference to see
how the children' s placement with their uncle was going and that the court had understood that the
boys had wanted to " come to court and talk to the judge." CP ( AM) at 30.
The parties then discussed visitation issues and whether and how DSHS would pay for the
mother' s collect calls to the children. The juvenile court set another status hearing for August 7,
and ordered the parties to figure out what would " make the boys feel comfortable [ with the visits]
before then." CP ( AM) at 33 -34. DSHS commented that the boys would be starting therapy the
following week, so the therapist could also " weigh in" at the August 7 hearing. CP ( AM) at 34.
The juvenile court also issued the following written order:
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Department to pay for summer camp - with Pierce County Parks + Rec. Children
shall be provided with individual counseling. Department to work with uncle
placement) reimbursement of costs re visits[,] status re visits w /
mom
regarding
8/ 7/ 14 @ 10: 00 am meeting should occur prior to court before next hearing;
CP ( AM) at 15; CP ( ADM) at 17.
The mother filed a notice of discretionary review. Holding that in closing the courtroom
without weighing all of the Ishikawa factors and without issuing the necessary findings, 8 the
juvenile court had committed probable error and the court' s decision substantially altered the status
quo or substantially limited the freedom of a party to act, RAP 2. 3( b)( 2), our commissioner granted
review.
ANALYSIS
The mother argues that the juvenile court erred when it closed the courtroom without fully
considering the Ishikawa factors. DSHS agrees that the juvenile court closed the courtroom in
violation of article I, section 10 of the Washington State Constitution.9 We agree.
I. PUBLIC TRIAL RIGHTS AND STANDARD OF REVIEW
Article I, section 10 of the Washington State Constitution provides that "[ j]ustice in all
cases shall be administered openly, and without unnecessary delay." This provision " guarantees
the public open access to judicial proceedings and court documents in both civil and criminal ,
cases." In re Dependency ofJ.A.F., 168 Wn. App. 653, 660, 278 P. 3d 673 ( 2012) ( citing Dreiling
8 To our knowledge, the juvenile court still has not entered any findings related to the courtroom
closure.
9 The parties also argue that the juvenile court' s closure was improper under RCW 13. 34. 115.
DSHS also argues that the closure resulted in the court having impermissible ex parte contact with
the children. Because we resolve this case on other grounds, we do not address these arguments.
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v. Jain, 151 Wn.2d 900, 908, 93 P. 3d 861 ( 2004)); see also In re - 181 Wn.
Adoption of M.S.M. P.,
App. 301, 308, 325 P. 3d 392 ( 2014). The First Amendment also "`` preserves the right of access to
court proceedings and records. ' J.A. F., 168 Wn. App. at 660 ( quoting Tacoma News, Inc. v.
Cayce, 172 Wn.2d 58, 65, 256 P. 3d 1179 ( 2011)).
Courts may, however, limit public access to judicial proceedings if the court determines
10
that closure is appropriate after applying and weigh the five Ishikawa factors. J.A. F., 168 Wn.
App. at 661. The court must also enter specific findings justifying its closure order. J.A.F., 168
Wn. App. at 661. Whether a public trial right has been violated is a question of law that we review
de novo. State v. Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005).
II. VIOLATION OF PUBLIC TRIAL RIGHT
The juvenile court' s oral ruling closing the courtroom shows that it did not consider all five
Ishikawa factors. At the very least, there is nothing in the record showing that the court gave the
general public present in the courtroom an opportunity to object to the closure and there was no
discussion by the parties involved about whether there was a less restrictive means available to
make the children comfortable. Furthermore, there are no written findings supporting the closure.
10 These factors are ( 1) the proponent of the closure must make a showing of the need for a closure
and if the closure is sought based on an interest other than the right to a fair trial, there must be a
serious and imminent threat to that interest, ( 2) anyone present when the closure motion is made
must be given an opportunity to object to the closure, ( 3) the court, the proponents of, and the
objectors to the closure should analyze whether the proposed method of curtailing open access is
the least restrictive means available and that it is effective in protecting the threatened interests,
4) the court must weigh the competing interests of the defendant and the public, and ( 5) the order
must be no broader in its application or duration than necessary. Ishikawa, 97 Wn.2d at 37 -39;
see also State v. Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995).
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Consol. Nos. 46515 -9 -II / 46518 -3 -1I
Additionally, although RCW 13. 34. 11511 allows the court to close dependency hearings
and to exclude the parents and other relatives from the hearing if it is in the child' s best interest,
the juvenile court is still required to apply the Ishikawa factors and make appropriate findings. See
In re Det. of D.F.F., 172 Wn.2d 37, 41 -42, 256 P. 3d 357 ( 2011) ( rule allowing for closure during
involuntary confinement proceeding without first requiring evaluation of the Ishikawa factors
violates article I, section 10 of the Washington State Constitution). Thus, to the extent the juvenile
court was relying on RCW 13. 34. 115, the court still erred.
III. CONCLUSION
The commissioner found that the mother was an aggrieved party and determined
discretionary review should be granted. This order was not appealed. The State concedes that if
review is granted, the trial court committed error. Both the State and the mother request this matter
be remanded. Because the juvenile court erred, we vacate the juvenile court' s June 26, 2014 order
11 RCW 13. 34. 115 provides,
1) All hearings shall be public, and conducted at any time or place within the
limits of the county, except if the judge finds that excluding the public is in the best
interests of the child.
2) Either parent, or the child' s attorney or guardian ad litem, may move to
close a hearing at any time. If the judge finds that it is in the best interests of the
child the court shall exclude the public.
3)If the public is excluded from the hearing, the following people may
attend the closed hearing unless the judge finds it is not in the best interests of the
child:
a) The child' s relatives;
b) The child' s foster parents if the child resides in foster care; and
c) Any person requested by the parent.
4) Stenographic notes or any device which accurately records the
proceedings may be required as provided in other civil cases pursuant to RCW
2. 32. 200.
Any video recording of the proceedings may be released pursuant to
5)
RCW 13. 50. 100, however, the video recording may not be televised, broadcast, or
further disseminated to the public.
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and the related oral rulings, and remand for a new hearing that is either open to the public or is
closed following the proper procedure.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
MAXA, J.
SUTTON, J.
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