': --; J:.".i_,. "s-"_¢iL.-'.i 26130€?29 £iii 8= 37 i|\i THE COURT OF APPEALS OF THE STATE OF VVASH|NGTON in the |\/tatter of the Dependency ot B.VV.K., dob 11/26/2014, No. 76675-9-| D|ViSION ONE A minor chiid.

STATE OF VVASH!NGTON, DEF’ARTMENT OF SOCiAL AND ) ) ) ) ) § i-!EALTH SERV|CES, ) ) UNPUBL|SHED OPEN|ON Respondent, ) ) v. ) ) ASHLEY KNUCKLES, ) ) ) Appe||ant. F|LED: October 29, 2018

SCHJNDLER, .J. - The triai court interjected more than 800 times during a six-day termination triai, often engaging in iengthy examination of Witnesses. Whiie many questions sought ciarification and Were neutra|, many other questions chai!enged the credibility of the mother and eiicited evidence not presented by the parties Altnough a court has broad discretion in a bench triai to question witnesses and controi the proceedings1 the cumuiative effect of the court’s interjections and questions in this case constitutes manifest constitutionai etror and denied the mother the due process right to a fair tria|. We reverse the order terminating the mother’s parental rights to B.W.K. and remand for a new triai before a different judge NO. 76675-9-i/2 FACTS Asln|ey Knuckies is the biologicai mother of B.W.K., born November 26, 2014.

Knuckles suffered from an addiction to opiates. When B.W.K. Was nine days old, Knuck|es’ boyfriend “nodded off" and dropped the baby. B.W.K. suffered a severe head injury in January 2015, the Department of Social and l-ieaith Services (Departrnent) placed B.W.K. in foster care and fiied a dependency petition. Fotlowing a tG-mortth dependency, the Department fiied a petition to terminate the mother’s parental rights to B.W.K. During the S~day tria|, Without objection, the court interjected and asked questions over 800 times. The court asked questions of every witness, including over questions of the mother and a comparable number of questions of the sociai Worker and the court-appointed special advocate (CASA). The court found the Departinent met its burden of proving the statutory elements to terminate the mother’s parentai rights to i?>.V\r'.K.1

RCW13.34.190(1)(b).

No. 76675-9-!/3 The court found the mother was not credibie. in particular, the court did not beiieve the mother’s testimony that a photograph of B.VV.K. and her boyfriend Was taken at the Tacoma lVlali in Ntarch or April of 2015. The court found instead that the “photo was actualiy taken between October 2015 and January 2016" when the boyfriend was prohibited from having unauthorized contact With B.W.K.

The court found the mother was "in compiiance with her treatment, which inciudes behavioral therapy, monthly meetings methadone dosing and UA[Z] testing (ai| results negative)." But the court found the mother demonstrated an insufficient understanding or interest in the special needs of the child and an inabiiity to meet those needs The court concluded there was iittie likelihood that conditions could be remedied so that B.W.K. couid be returned to the mother’s care in the near future and continuation of the parent~chi|d reiationship diminished the prospects for eariy integration into a stabie and permanent horne The court entered an order terminating the mother’s parental rights to B.W.K.

ANALYSIS The mother contends she is entitled to a new triai because the court violated her right to due process The mother asserts that in addition to asking an excessive number of questions the judge “took over the examination of Witnesses,” impeached and “aggressive|y cross-examined” her and her witnesses “rnade sua sponte objections" to her attorney’s questionsl and “heiped the State and CASA” in eliciting

NO. 76675-9-¥/4 facts and evidence Knuckies contends the court “crossed the line from impartiaiity to advocacy in favor of the State and against appellant.”

RAP 2.5 The State correctiy points out the due process clairn is raised for the first time on appeai. Under RAP 2.5(a), this court “rnay refuse to review any claim of error which was not raised in the trial court.” l-lovvever, “mariitest error affecting a constitutional right" may be raised for the first time on appeai. RAP 2.5(a)(3). Under RAP 2.5(a)(3), the mother must show “ ‘actual prejudice.' ” State v, Ka|ebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015)3 (quoting State v. O’l-laral 187 \Nn.2d 91, 99, 217 P.3d 756 (2009)). Actual prejudice is “ ‘a piausible showing . . . that the asserted error had practical and identifiabie consequences in the triai of the case.’ ” Kaiebaugh, 183 Wn.2d at 5844 (quoting Q§a;§, 167 Wn.2d at 99). After careful review of the record, we conclude the trial court’s interjections and questioning constitute manifest constitutional error and actual prejudice5 Right to a Fair Trial The Fourteenth Amendment to the l.inited States Constltution and articie i, section 3 of the Washington State Constitution protect against the deprivation of a

No. 76675-9-|/5 person’s iiberty without due process of |aw. The right to a fair trial is a “fundamentai iiberty” protected by the Fourteentb Amendment and article |, section 3. Estelle v. Liiiam§, 425 U.S. 501, 503, 96 S. Ct..1691, 48 L. Ed. 2d 126 (1976); State v. Davis, 141 Wn.2d 798, 824, 10 P.3d 977 (2000). “A fairtrial in a fair tribunai is a basic requirement of due process” ln re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955); State v. Ntoreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). in genera|, a trial court does not vioiate the due process right to a fair triai by asking questions Mg;e;ig, 147 Wn.2d at 506-12. Courts have the authority to interject and question witnesses and may, for example, interject to prevent undue repetition of testimony or ask a witness to clarify testimony ER 614(b); ln re We|fare of Burtts, 12 Wn. App. 564, 577, 530 P.2d 709 (1975); United States v. Mordan, 376 F.3d 1002, 1008 (9th Cir. 2004). l-lowever, the due process right to a fair trial is implicated where the court crosses the line from neutral arbiter to advocate. §eg Mgr_;e_rlc_), 147 Wn.2d at 509-51 1.

Although a judge has broad discretion to question witnesses in a bench triai, the judge cannot “tai<e charge of a party’s case or . . . become a ciear partisan.” 5A KARL B.

TEGLAND, WAsHlNoToN PRAcTicr-:: EvioENcE § 614.5, at 618 (6th ed. 2016); MM, 147 Wn.2d at 509-511. “A triai court should not enter into the ‘fray of combat’ or assume the role of counse|." State v. Ryna Ra, 144 Wn. App. 688, 705, t75 P.3d 609 (2008) (quoting Eoede-Nissen v. Crvstal l\/tountain, |nc., 93 Wn.2d 127, 141, 606 P.2d 1214 (1980)). The greater the involvement of the court, the higher the likeiihocd the judge is effectively usurping the role of counse|, which calls for reversal. §_eg United States v. Hickrnan, 592 F.2d 931, 932, 936 (6th Cir. 1979) (convictions reversed where the trial No. 76675~9~|/6 court interjected in proceedings rnore than 250 times the constant interruptions “frustrated the defense” and infringed right of cross~exarnination, and the court indicated disbelief in “the defense story”). in determining whether a court’s interjections and questioning violate the due process right to a fair trial, courts consider the proceedings as a whole and examine a number of factors including the frequency and nature of the court’s questions whether the court waited untii after counsel questioned the witness whether the court’s questions were clarifying or adversarial, whether the court interjected sua sponte in favor of one party, whether the questioning was impassioned or accusatory, and whether the court usurped counsel’s role. §_e__e_ _l\_/l_grg@, 147 Wn.2d at 507-12; M States v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974); United States v. Saenz, 134 F.3d 697, 702-05 (5th Cir. 1998); United States v. Sinqer, 710 F.2d 431, 436-37 (8th Cir. 1983); United States v. Van kae, 14 F.3d 415, 418-20 (Bth Cir. 1994).

We conclude the trial court’s interjections and questioning in this case violated the mother’s due process right to a fair trial. The sheer number of questions asked by the court is problematic and usurped the role of counsel. But the timing and nature of the questions show the court crossed the line between neutral arbiter and advocate instead of waiting to ask questions until after counsel finished speaking, the court interjected relativety early and often during the examination of witnesses The court disrupted the presentation of evidence and exhibited a level of involvement more akin to an advocate than a neutrat arbiter. As the fotlowing excerpts demonstrate, the court too often commandeered witness examinations engaged in hostile and advocate~|il<e questioning, and elicited evidence favoring the Departrnent.

NO. 76675-9-i/7 The Department called Knuckles as its first witness Shortly after the Department began questioning her, the court interjected: THE COURT; . . . l want to draw your attention to page 8 [of the agreed order of dependency], okay, and Provision 4.4, are you there?

Where it says Placement?

THE WlTNESS: Sorry. `l'hese pages are stuck together. Yes, t do see that.

THE COURi`: And it says “DSHS{€] Supervising Agency is authorized to place the child with a relative who is wilting, appropriate and available with reasonable --- prior reasonable notice to the party subject to review by the Court. DSi-IS shall initiate a home study of the maternal grandmother’s horne in her home state [of Tennessee] as Wei| as the sibling [A.Y.j’s paternat grandmother’s home in Kentucky. However, the court order shali be entered before [B.W.K.j is placed outside of V\lashington State.”

Did you read that before you signed this order?

THE WlTNESS: [l\/iy attorney and ij went through it briefly, but _ 'lI-tE COURT: So you knew that there was no promise from this order that the child was going to be piaced with your mother, right?

THE WETNESS: That’s just What l thought When | was signing it, honestly THE COURT: Contrary to what it says?

THE WlTNESS: Just by what me and the social worker talked about, she just mentioned that [the childrenj would be out of foster care and with my mom if l signed the paper.

THE COURT: l\/ls. Knuckles did you read this order? `l|-tE WiTNESS: l can’t say that l did, no, ma’am.

THE COtJRi: Okay.

THE VVITNESS: We went through it, but it wasn’t -- you know, it was just very brief. lt was only a few minutes of time that we were together. [(Department’s attorney brieny questions witness)j THE COURT: There were hearings after [B.W_K.’s placement in foster care] that you attended Are you saying [your tawyer] was not telling the court what you wanted to say about how promises had been made that Weren’t reflected in the order?

THE VV|TNESS: Welt, yes that’s true.

THE COURT: | see. When was the first time you complained that there were promises made to you that weren't reflected in the orders?

THE WITNESS: As soon as | had knowledge a little bit about what’s happening, you know, l feel like this -»-»

NO. 76675-9-1/8 THE COURT: When Was that, lVls Knuckles that you actually made a statement to somebody saying, “This isn’t what | agreed to?”

THE Wl`fNESS: lt »-~ | know l did it at court when we went when | seen [sicj [rny lawyer] at court, but | don't recall a specific date it was THE COURT: Did you say this to anybody other than [your lawyer]?

Tl-|E W|TNESS: Everybody that |’ve been involved with so far, yes THE COURT: So you’ve said it to your social workers and you’ve said it to the CASA?

T|-lE WiTNESS: That -~ |'m sorry, said what?

THE COUR?: `l"hat - that this order didn’t reflect what you’ve been promised.

THE WiTNESS: Oh, yes | talked to rny first social Worker about it, Cynthia, because she was the one that originally told me. `fl-iE COURT: Anybody else you talked to besides Cynthia and [your lawyer]?

THE VV|TNESS: Not thatl recalll THE COURT: Okay. Back to you, [Counselj_ [(3 pages of questioning by Department’s attorney.)]

THE COURT: Did it occur to vou to maybe read the orders to see what thev wanted you to do?

THE VV|TNESS: l Was not aware of an order.

THE COURT: Rea||v? You Weren’t reading anv of these court orders that said what services you were required to do?

THE WlTNESS: Oh, | had _ yeah, l had the paper from the Department that said the -- with the - established paternity and the random UAs and stuff, but --- `fl-iE COURT: Nlrn-hmm. And nothing in those said that you had to be off methadone, right?

THE VV|TNESS: Yeah.

THE COURT: Okay. [(22 pages of extensive questioning by Department’s attorney, several interjections by court.)]

THE COURT: i’m going to stop you here and ask [Knuckles] something else What are {B.W.K.]’s particular needs as compared to any other chi|d? What are his special needs? `l'l-iE WlTNESS: i-le's different because he needs extra attention l-le _ his balance and stuff is off, so he can't just be left alone like regular kids with other children He needs attention 24/7[7], and that makes it different He’s more high risk than any other children with his needs THE COURT: Anything else?

THE W|TNESS: l\lo.

l Twenty-four hours a day, seven days a week.

NO. 76675-9-!/9 THE COURT: That’s it? That’s all his needs is extra attention and 24/7 care?

THE WITNESS: l mean - THE COURT: Anything else a caregiver needs to give him?

THE W|TNESS: Of course, he needs his medical stuff advised and - THE COURT: What medical stuff needs to be advised?

THE WlTNESS: All of his you know, therapies and appointments and a|| that. They need to, you know, be taken seriously and _ Ti-lE COURT: And how often are those?

Tl-lE WlTNESS: l-le’s got the therapies that l’rn allowed to go to.

There are three of them and it’s twice a Week: Physical therapy, occupational therapy1 and speech therapy T|-iE COURT: |f he returns to you, how are you going to meet his need for 2477 care?

THE W|TNESS: l will be there for him and be able to take care of him responsibly with the help of _ and support of my family and my friend.

THE COURT: Which family?

THE Wll'l\l ESS: |Vty mother and grandmother and grandfather back home in Tennessee.

THE COURT: Does that mean you would take . . . [B.W.K.j back home to Tennessee?

THE VV|TNESS: lf l was permitted, yes THE COURT: Okay. And who would be providing the 24/7 care back in `l'ennessee?

THE WlTNESS: We|l, | mean, l could and - until we got something set up like he is now where he goes to daycare and stuff, but l’d rather him notjust be in daycare all day. |f it was my choice |’d -- you know, take care of him and stuff, and l have the family support and means to Where l would be able to stay with him.

THE COURT: How do you know you’ve got family support to get 24/7 care in Tennessee? How do you know you have it?

THE W|TNESS; They’ve told me lV|y _ my parents and grandparents have told me that they would do anything to help me that they needed to and they have the means to.

THE COUR?: And what’s the plan for his three times a week therapies and appointments?

Tl-iE VV|TNESS: For back in `lennessee?

THE COURT: Wherever you’re taking him.

THE VVlTNESS: l have researched different doctors and stuff for Tennessee and tried to reach out and see if they would be able to take him -»- you know, take him in and _ THE COURT: Who specifically have you researched? l mean, where -~ where are they?

No. 76675-9-i/10 Ti-|E WlTNESS: There was -- l can’t remember their names specificallyl but it was doctors out of Nlorristown and Knoxvil|e, tennessee and specialist - there are specialists and good healthcare in Knoxville, which is close to Tennessee back home THE COURT: lt‘s in a different state, isn’t it? Or it’s still in Kentucky? i|-lE W|TNESS: No, they’re both in -- no1 Knoxvil|e’s in Tennessee.

THE COURT: Okay. So how far from your home would Knoxvii|e be?

THE WlTNESS: lt’s just like 30 minutes THE COURT: Okay. And who would be providing the care for [B.\N.K.j? Name, a facility, or person?

THE W|TNESS: lt _ l don’t remember the name of the facility THE COURT: i)o you know how often he’d be going?

THE WlTl\tESS: Probably the same amount as he is now. l mean, l would set everything up where nothing would be changed except, you know, his living area, pretty much. l-le would still be going to his therapies and doctors and stuff.

THE COURT: Okay. Back to you. [(Department’s attorney asks Knuckles three questions.)]

THE COURT: How long have you been going [to visits and therapy sessions with B.W.K.j regularly?

THE VVl'l'NESS: l got rny bus card in mid~December.

THE COURT: 80 you’re saying that you’ve been attending regularly since mid~December?

THE WlTNESS: Weil, the visits got - ended up getting canceled in January, but it was - me and Donna [Woodruff of A Place Called l-lope], the supervisor [of the visits with B.W.K.], thought it was just the second missed, but Genora [Chappeli, a case manager at A Place Called Hope,] had it down as the third. So it ended up -- because my text was delayed to her, and she didn’t get it until three hours after time had passed. lt was too late, and she said it was the third one so they got canceled THE COURT: So you haven’t had visits since January?

Tl-|E WtTNESS; No, they’re -- they’re active now. 'l'I-lE COURT: Okay. When were they reactivated?

THE W|TNESS: .lust a couple Weeks ago.

THE COURT: Have you missed any since then?

THE WlTNESS: No. THE COURT: How about his therapies?

THE W|TNESS; |‘\lo1 l haven’t missed them since Tl-IE COURT: You haven't missed any since mid»Decernber?

Ti-lE WlTNESS; There might have been a |Vionday one or something at the Puyallup the -that one, but they’re -- if it conflicted -- if the appointments conflicted with the visit, then l chose to go to the visit.

NO. 76675-9-|/1‘| [DEPARTMENT’S ATTORNEY}: if you - 'l'l-lE COURT: What? You _ 'l`l-lE WlTN ESS: lt’s -- it’s -- it’s the -- THE COURT: You’re saying [B.\N.K.] was scheduled for visitation and therapy at the same time?

THEW|TNESS: l\|o. lt’s the _ like different appointments like his doctors’ appointments and stuff or if he had a visit that day and he had an appointment earlier that day, my concern was about making the buses and getting back to the appointment -- to his visit on time So l would choose to go to the visit instead of try to go make it and missing the visit and risk missing the visit. Does that make sense?

THE COURT: Not really.[a] This lengthy questioning demonstrates the trial court’s involvement as well as its skepticism of and hostility toward the mother For example the court‘s question, “Did it mean anything to you at all that people were telling you that your child had about a zillion special needs and you had to be there for him," if asked by the Department would have appropriately drawn an objection from the mother’s counsel9 When a judge in a bench trial engages in this type of argumentative questioning, it puts counsel in an extremely difficult position-object to the inappropriate questions and risk angering the trier of fact, or remain silent to minimize the risk of an adverse outcome lVlany of the court’s questions also either elicited or facilitated the admission of evidence supporting the Department. |n the following excerpt, the court spends a considerable amount of time asking questions of two witnesses about a photograph of B.VV.K. with the mother’s boyfriend The significance of the photograph turned on whether it was taken at a time when the boyfriend was prohibited from attending visits The court dominated the questioning on this topicl starting with social worker Clarissa

3 Emphasis added Emphasis added

No. 76675-9-l/12 Blackmer.

THE COURT: Okay. You got negative visitation reports at the first visit or at the first and second visit?

THE VVITNESS: The first and second visit occurred in the same week, and so l got them approximately at the same time.

THE COURT: Was it the first or the second visit that corresponded with the posting of the pictures on Facebook? 'l'i-lE WlTNESS: The posting of the pictures -- [KNUCKl_ES’ ATTORNEY]: Your l-tonor, again, no disrespect, objection as to hearsay THE COUR'i': lt’s not hearsay when she saw it herself -- [KNUCKLES’ A'fTORNEY]: l don’t -- THE COURT: -- on Facebook. The fact that it appeared on Facebook doesn’t make it hearsay when it’s photographs What was the relationship between the posting of the photographs in terms of when you saw them and the vislt? 'l'l-iE WlTNESS: l do not recall actually the exact timing of when | saw the photographs l know that l addressed it with the mother as soon as l saw them.

THE COURT: l-low, if at all, could you date what you were seeing in terms of what was posted on Facebook in terms of the visitation? l mean, how could you tell it wasn't some years earlier mall visit?

THE WlTNESS: VVell, at that point the child was not even a year o|d.

THE COURT: (lnaudible) just (lnaudible) that.

THE WlTNESS: The way l actually verified lt --- and l don’t know if the CASA’s already testified or not, but she can speak further. l actually connected to the CASA because she was receiving monthly photos of the chi|d, and she frequently received photos while the child was at visits So l requested copies of all of those photos And that was how we were able to determine the exact date was because of the outfit that he was in at the mall in those photos and his size - THE COURi: Uh-huh.

THE WITNESS: _ his size, his shape A four month old obviously looks significantly different than a ten or eleven month oid. And so that was how we narrowed it down.

And | was on the phone with the CASA explaining what the concerns were while l was reviewing the pictures And when we came across that and that the picture matched perfectly what he was wearingl his size, his developmental level at that point in time, that’s how we knew it had occurredl T|-iE COURT: Who knew what the child was wearing on these two particular visits? | mean, where did that information come frorn?

THE WlTNESS: The CASA had photos from the mall of _ while the child was at the ma|l.

NO. 76675-9-l/13 `l'l-lE COURT: The CASA was there for one or both of these visits?

THE WlTNESS; For part of the visit.

THE COURT: Both of them or one of them?

THE VV|TNESS: l _ l don’t recall on that one. l don’t know - THE COURT: Okay.

THE VVlTNESS: | don’t know that l was aware that the CASA was there until | had asked her for pictures of [B.W.K.]. And l had asked her for the pictures to narrow it down on the developmental level that we’re not talking about something that had occurred a month or two prior but something that was much more recent THE COURT: Okay. That part of this the connection between the way the child looked in the photographs and the way he looked in the rest of the photographs we’ll await the CASA’s testimony but l want to come back to this timing. Okay. How soon was it after these visits that, however it was whether via CASA or othen/vise, these photographs came to your attention?

THE WlTNESS: lt would have been within the same week -~ THE COURT: Okay. [THE WlTN ESS}: _ othenrvise, we would have moved fonivard with the decreasing of the supervision `l'l-lE COURT: Okay. And when you got this information about these photographs and you looked at them, then what was the conversation between you and the mother then?

THE WlTNESS: When | was able to reach her by phone, | expressed that there were some concerns as far as stepping down on visitation, and l wanted to take the time to talk with her about those concerns and hear her side of things before - before any formal decision was made as far as whether or not we were going to pursue the step- down on the visitation THE COURT: And how did you get in touch with mom?

THE V\flTNESS; l had to utilize the multiple phone numbers that | had until l found one that worked Tl-lE COURT: Okay. And what happened when you finally got a phone nurnber that worked?

THE WlTNESS: She had answered - THE COURT: And What happened _ THE WlTl\lESS: -- on that one THE COURT: -- then?

Ti-lE W|TNESS: That’s when l broached the subject with her in the manner l just described lHE COURT: And what was mom’s response?

THE VV|TNESS: Nlom’s response was initially complete denial that [the boyfriend] had been present at any visit stating it must have been

No. 76675-9“|/14 a visit from --~ the visits occurred at the DCFS€“)] offices prior to us being aware that [the boyfriendj was not the father1 which would have put the child four months -- four months of age And at that point he was nearly -- he actually had turned one on Thanksgiving that year, so he just turned one 'l`here was _ so l asked her about that. l also had brought up the concerns from the visitation reports about her not fully supervising [B.W.K.] and not yet demonstrating that she Was going to watch him 100 percent of the time Part of the concerns were that we didn’t want [B.W.K.j being left with strangers while she went into the bathroom.

THE COURT: And what did mom say in response to those conversations?

Tl~lE WlTNESS: She stated that it was all entirely false, and that both visitation -- it must have been both reports That both visitation agencies were lying to make her look bad And that it was about the money because they would not get paid as much if it switched to monitored She then explained that she had documentation to prove all of this and wanted to provide that to me and asked to do an in-person meeting with me, which we scheduled to be l believe the following Thursday or Friday. 't`l-|E COURT: Okay.

THE WlTN ESS: And then that initiated l believe three or four months of my attempt to do that office visit or a phone conversation with her furtherl Tl-lE COURT: So what happened to the scheduled meeting?

THE WlTNESS: She never showed, and she repeatedly would call me after the timing of the meeting to explain why she no-showed for the first l want to say three scheduled meetings And then after that it Was on me to attempt to connect back with her since there was no reason _ there was no call, no follow-up on why she no-showed. l'ltE COURT: So let me get this right lVlom said she had documentation, she scheduled a meeting with you to show it to you, and then she did not show up?

THE WITNESS: Correct.

Tl-IE COURT: Did she call you and tell you she wasn't coming? `l'l-lE WlTNESS: After the fact, yes THE COURT: After the fact. And then you scheduled two more meetings?

THE WlTNESS: l scheduled multiple more meetings?

THE COURT: l know l got it, but - THE WlTNESS: But.

THE COURT: -- this initial time, you scheduled two more meetings after that?

‘° Division of Child and Fami|y Services,

No. 76675»9-|/15 THE WlTl\lESS: Both of which she no-showed, correct THE COURT: Okay. Did she call you in advance of either one of those?

THE WlTNESS: No. THE COURT: Okay. She called afterward to say why she hadn’t appeared?

Tl-lE W|TNESS: That’s correct.

Tl-tE COURT: And then she didn’t schedule another meeting with you?

THE WlTNESS: lcontinual|y tried to schedule those l continued my attempts to reschedule ln our subsequent phone calls for her - after she had not shown up for the office visits we had the conversation about [B.W.K.]’s medical needs and really wanting to make sure she was fully understanding and she had asked while she was there in person if we could go over [the] medical records and l expressed l was more than happy to do that, so we had planned on including that in our meeting And that was of vital importance for her to understand [the] medical needs in order to progress with moving [B.VV.K.] home THE COURT: Did you succeed in scheduling a meeting with her?

THE WlTNESS: No, | never did The court riot only elicited detailed factual evidence that the Department had not presented it assumed the role of advocate for the Department. The court also argued with the mother’s attorney on evidentiary objections to the court’s own questions The court continued the questioning about the photograph during the testimony of the CASA Janet Belles: Q (By [CASA’s attorney]) Earlier you testified that you could tell that [the photographj was in a mall, and you gave an example of the chair _ 'l'l-lE COURT: No, she said specifically she knew it was in this mall --- [CASA’S ATTORNEY]: Okay.

THE COURT: _ Where the mother had arranged for these test visits Okay. She mentioned chairs ls there anything else in this photograph that tells you where this was?

THE V\flTNESS: The overhead lights the tile floors There is a store head up above here and there’s like signs lt’s a mall.

THE COURT: The mall or a mall?

THE WlTl\iESS: lt’s the Tacoma lVlail.

No. 76675-9-1/16 Tl-lE COURT: Okay.

Ti-lE VV|`l'NESS: And on the heading it actually says "[B,VV.K.] and l chilling at the mall." Tl-lE COURT: l know what it says but - `l'l-lE WlTNESS: Sorry. `l'l-lE COURT: _ l’m not really considering what [the boyfriend] has to say for the truth of what he's saying here Okay.

THE WlTNESS: So l would say it is in a _ in the Tacoma Nlal| where the visits have been happening Tl-lE COURT: Okay. So What is it about [B.W.K.]’s clothing you mentioned and [B.W.K.]'s appearance? dust didn’t get -- first of all, you said that you could tell that [B.W.K.j was toddler age What was it you could tell about . . . age by looking at this photo?

Tl-lE V\llTNESS: `l'his photo isn’t as clear as the one that l did see THE COURT: l\/lm~hrnm.

THE VVlTNESS: [B.W.K.] had a, like, a sweatshirt that had a train on it.

Tl-lE COURT: Okay. Slow down. ls this the photograph that you sawl a terrible reproduction of it?

THE WlTNESS: Yes.

THE COURT: Okay. Then looking at this photograph, which is a terrible reproduction of the photograph you saw, is it accurate even though it’s not a good reproduction?

THE W|TNESS: Yes.

Tl-lE COURT: Okay. Looking at this photograph that accurately reproduces what you saw, tell me what it is first of all, about [B.\N.K.j that indicates the timing of this THE W|TNESS: [B,W.l<.’s] age THE COURT: Okay.

THE Wl`lNESS: [B.VV.K.] looks like . . . about 11 months there or a year. `l'l-lE COURT: Okay. And what is it about [B.W.K.’s] clothing?

THE V\llTNESS: |’m not understanding what you're asking.

THE COURT: ¥ou said before that there was something about what [B.W.l<.] was wearing -- THE WlTl\lESS: Yes.

THE COURT: _ okay, that was important? What is it about what [B.W.K.j’s wearing that’s important?

THE WITNESS: lt was the same shirt that l had a picture of.

Tl-lE COURT: Do you remember if that picture showed up in any other photos he took or just on this one visit you took lt when you were there?

No. 76675-9-|/‘| 7 r>.>: THE V\liTNESS: dust _ | didn’t take this picture THE COURT: l know.

THEW|TNESS: Oh, sorry. Say it again?

THE COURT: We|l, from What you said, ifi understand you right, lVls. Belies this photograph shows [B.W.K.] wearing a shirt, yes?

THE W|TNESS; Yes.

THE COURT: And you also had taken a picture of the shirt that he’s wearing here at some point, right?

THE WiTNESS: Oh, yes. Yes. ‘i’es.

THE COURT: Okay. Do you know whether _ when it was that you took the picture of the shirt that [B.W.K.]’s wearing here?

THE VVlTNESS: lt’s in my CASA October report. l think it’s in the October report Ti-IE COURT: October or _ THE WiTNESS: i am thinking it is now. (By [CASA’s attorney]) Wouid looking at an October report help refresh your memory as to if that’s the report?

Yes. Yes. Yeah. (By [CASA’s attorney]) i’m handing you what’s been marked for identification purposes as CASA’s Exhibit 153. if you could take a tew moments and took at the front page of the date of your report and then the second page of a photograph, and see if it heips refresh your memory as to the date when you saw {B.\N.K.] in that sarne shirt? it looks iike the hearing date was on 11/2/15.

THE COURT: What hearing date? `i'l-iE WiTNESS: The _ THE COURT: Okay. 80 here’s the question THE WlTNESS: - permanency plan --- THE COURT: Carr you -»~ can you date the photograph?

Your photograph, can you date it? icAsA's ATroRNEY]; can i follow up now?

THE couRT: Yeah.

Oh, it’s right there in front of me, yes 10/29/2015. l apologize Okay.

THE COURT: Okay. What’s the significance of that?

THE W|TNESS: That would tell me that that picture was around that time period,

No. 76675-9*¥/18

(By [CASA’s attorney]) And if you could turn to the very last page as we||?

THE COURT: Around 10129/'|5?

Ti-IE WlTNESS: Yes.

During cross-examination, CASA Belles testified she had been mistaken when she said she recognized chairs in the mail photograph The court interiected, steered the witness in a different direction, and at one point answered a question for the witness Q.

D>o> Okay. | believe you’ve testified that vou recognized that photo because of the chairs that vou recognized Where are the chairs i_n_ that photo? l stated early [sic] that l was mistaken by my memory, What Were you mistaken about?

That there were chairs. There were no chairs Okay.

THE COURT: What is that chair to the teft in the photograph? Aren’t those chairs?

THE WlTNESS: | think they’re signs `i'l-tE COURT: No. to the ieft. Behind the -- THE W|`E`NESS: t_et me see it again.

THE COURT: »-~ just behind ithe bovfriendl’s rioht ear.

THE WiTNESS: Let me see it again. [KNUCKE_ES’ ATTORNEY]: l’m sorry.

THE COURT: dust behind ithe boyfriendl’s right ear sittinq on the floor there, aren’t those chairs?

THE Wl`i'N ESS: They could be, yes.

THE COURT: Okay. (By [Knuckles’ attorney) ls your testimony that you are seeing chairs or not seeing chairs or you’re not sure?

From this picture it’s not a good picture, but that could be chairs in the center of the mal|, but the reason l know it’s in the mall is tiie floors the heading of the stores the overhead lights and the _ there’s like, a directory up above that looks iike it has wordings and an arrow may be pointing And how do you know it’s a particular mail as compared to a different mail?

Well, [B.W.K.]’s visits are supervised, so it would have to be where [B.W.K.] goes for his visits and that would be at the Tacorna |Viail.

Okay. But why couidn't lt be a picture of [the boyfriend] with [B.W.K,] in a different mall that’s not a supervised visit?

No. 76675-9-¥/19 Ti-lE COURT: Because how would the mother det access to the child Counsel? i'|-lE WETNESS: She answered it.

Tl-iE COURT: Yeah, t mean _ [KNUCK§.ES’ ATFORNEY]: Judge answered it?

THE W|TNESS: _Y_e_s THE COURT: Yeah. [KNUCKLES’ ATTORNEY]: Thank you.l"i

The court assisted the CASA attorney in laying the foundation for admitting e- mai| exhibits during the cross-examination of B.VV.K.’s foster mother and rejected the objections of the mother’s attorney as "nuts.”

Q, A.

Q. (By [CASA's attorney]) . . . [V\I}e have in front of us an e-rnaii that is from []123@hotmail, which l believe is your public e-mail account _ Right. -~ dated November 4th, 2016 on Friday.

THE COURT: Okay. So, . . . let me ask you is vour public e-mai| account l i123@hotmai|.corn? 'i'l-iE W|TNESS: Yes.

THE COURT: Okay. (By [CASA’s attorney]) And _ THE COURT: And that’s the address vou used to communicate with the mother?

THE WiTNESS: Yes.

Tl-lE COURT: At her address off i47@qmai|.com?

THE WlTNESS: Yes.

THE COURT: Okay. [KNUCKLES’ ATTORNEY]: But, Your l-ionor, for the record [the foster motherj’s not authenticated that this is her e-mail because she doesn’t have it in front of her to authenticate it, so | am objecting for the record.

THE COURT: That’s nuts . . . . Shejust said verbally that this is her e-mai|. She doesn’t . . . have to have it in front of her.

Okay. Overruied. fkuucktes'ArroRNEY]; continuing objection rhani< you.

" (First alteration in original) (emphasis added).

No. 76675-9-|/20 THE COURT: Noted. l think we have sufficient Micafion-Wl The court commandeered the examination of the mother’s witness Bonnie Kosanovich. Knuckies had been living with Kosanovich. i_ess than two pages into the testimonyl the court began aggressively questioning Kosanovich about the mother’s future iiying arrangements and overruied objections to its own questions THE COURT: When are you expecting [Knucklesj to move back to 'i'ennessee?

THE WlTNESS: Weli, hopefully, she really wants her son back, and then stay here as tong as she needs to _ Tl-lE COURT: Nim-hmm. When -- THE VV|TNESS: - untii things are ready -- THE COURT: _ but when are you expecting her to teave, or are you?

THE W|TNESS: We have no expectations of that at the momentl THE COURT: Okay. Do you expect her to leave next year or two years from now or five years from now?

THE WiTNESS: dust when she is ready, when she is abie to.

Tl-tE COURT: Okay. Can you explain what that means?

THE Wl'l'NESS: When she is ready to - l meanl just until she gets on her feet.

THE COURT: And what does that mean?

THE WlTl\iESS: When you have a iob, money, another place to go to.

THE COURT: When she has a job, that’s When she is going to leave to go back to another state?

THE VV|TNESS: No. Wetl, i’m sure she wilt have heip from her room to go back there, but just when --»~ she wants her child back and we will have herjust, you know, until the Court says it’s okay for her to move out of state. `i'l-lE COUR'P: Okwav. So we have a termination trial gnderwav right nowl right?

THE WlTN ESS: Yes.

THE COURT: And you know that's why you’re testifying?

THE WlTNESS: \/es.

THE COU R'l': So when do you expect her to leaye?

THE WITNESS: There is no expectation No expectation on it.

She coutd stay as long as she wants THE COURT: Okay. So you iust want her to stay indefinitely?

No. 76675-9-i/2‘i THE WiTNESS: dust until she is ready to leave Tl-iE COURT: Have you talked to your husband about this? 'i'l-iE WlTNESS: lie is okay with it. `i`HE COURT: No, lqot that, but the two of you haven’t discussed her termination date in your home?

THE Wl`i'NESS: Weil, if that happens if it’s terminated, then she could go back to Tennessee whenever she wants THE COURT: So if this trial ends in termination, then she will return to Tennessee? And if it doesn’t end in termination, then you’re going to keep her in the home until when? [KNUCKLES’ ATTORNEY]: That calls for speculation.

THE COURT: Overruled. 'l'l-iE WiTNESS: Yeah. `i'|-iE COURT: lt’s her home [KNUCKLES’ ATTORNEY]: Thank you.

THE WlTNESS: Weil, it’s okay with me that she stays as long as she can.

THE COURT: Okay. So if the trial doesn’t end in termination1 she can stay indefinitely?

THE WtTNESS: Yes.[i?’l During crossexamination of a sociat worker, the court almost immediately cutoff the mother’s attorney and chaiienged the attorney’s understanding of the evidence despite the absence of an objection from opposing counsel: BY [KNUCKLES’ ATTORNEY}: Q. You said it wouid be very difficult for A Place Called i-lope to arrange feeding therapy at someone’s horne correct?

THE COURT: No, You misheard. [the witness] said that she could arrange feeding therapy at A Place Called Hope. She did arrange feeding therapy at A Place Called Hope. lVlorn wasn’t there for three feeding therapy sessions in a row, so it rnoyed back to foster mother’s home [KNUCKLES’ATTORNEY]: Okay. (By [Knuckies’ attorney]) So my question is - THE COURT: She said it would be difficult - Q. (By [Knuckies’ attorney]) -~» it possible -- THE COURT: - to arrange a supervised visit in a place like the foster mother’s home, which is not a neutrat location, but that’s a different question from the availabitity of A Place Called l~lopel which she said was available [KNUCKLES'ATTORNE¥]: Okay.

No. 76675~9-|/22 Q. (By [Knuckles’ attorney]) So it is possible to arrange therapy at a private home correct?

THE COURT: No, [Counsel]. One more time she said a supervised visit needs to be in a neutral location She said that’s why feeding therapy was arranged at A Place Called Hope until mother didn’t appear for three successive therapy sessions That’s what she said Anything else you want to ask her? [KNUCKLES’ATTORNEY]: Okay. Well, lwanted to ask that question, but that’s fine Tl-tE COURT: Well, she’s answered that one Okay? [KNUCKE_ES’ATTORNEY]: Okay.

During direct examination of Knuckles’ mother, the court questioned her aggressively about Knuckles’ relationship with her boyfriend L.J. The court’s questions were decidedly not neutral in content or tone THE COURT: Who is [L.J.]?

Tl~lE WlTl\lESS: Who is [L.J.]? 'l'l-lE COURT: Yep.

THE Wl`l'NESS: That’s someone [Knuckles] used to date THE COURT: How do you know that? l THE WlTl\iESS: From he _ because he went to school With my son. And they dated when they were younger.

THE COURT: ln Tennessee?

Tl-iE WlTNESS: Yes. No, Kentucky, actualiy. Kentucky. 'iHE COURT: Did their relationship end after Kentucky?

THE Wl`i'N ESS: l don’t know when their relationship ended THE COURT: You don’t? Vou don’t know who your daughter dates?

THE WiTNESS: No, ma‘am. f\/ly daughter has been out west, a whole country away, for two years l don’t know who she is talking to or what she is doing, who she is seeing l don’t know when they split up. l do not know.

THE COURT: Do you know about [L.J.]’s relationship with her here?

Ti-lE WETNESS: l am aware that she went out there _ when she initially went out there, that’s who -- his family was out there `i'I-lE COURT: And?

THE Wl`l'NESS: She has no one out there lt was his people that was out there THE COURT: Was their relationship still going on at that point?

THE WlTNESS: \/eah, lwouid assume at that point. lf she is going out to Washington, l would assume they were going to date _ THE COURT: Do you have any idea ---

No. 76675-9-!/23 THE WiTNESS: --- again or _ you know.

Ti-lE COURT: Do you have any idea what happened after that? 'i'l-iE WiTl\iESS: No. l mean, l know about the accident with the baby, but that’s about it. l don’t know, you know, anything else, other than, you know, the accident, him falling asleep with the baby, and her taking him to the hospitai, and then ali this happened THE COURT: And what happened to [L.J.]?

THE WiTNESS: l have no idea. l think he went to jail. l think he might have been in jail when l was there, but i’rn not sure l don’t know. l'l-EE COURT: And what happened -- `l`HE VV|TNESS: Neediess --- THE COURT: -»-» to [L.J.j - THE Wl'i'NESS: -- to say, l didn’t even want to talk or speak or know anything about [l..,J,] after this episode -- Ti-lE COURT: You -

Tl-iE VVtTNESS: - because of course, l was upset THE COURT: You didn’t want to know anything more about him after that?

THE WlTl\lESS: No, i didn’t. l didn’t care where he was or nothing le concern Was my children --~ my grandchildren and my child. l didn’t have any concern for [i_.J.] at the time.

Ti-lE COURT: To your knowledge -- Tl-iE WlTNESS: Once my children were in CPSW] custody, l was worried about my chi|- -- my grandchildren and my child THE COURT: To your knowledge is he still in jail?

THE WlTNESS: | don’t know, No - l have no idea where [i_.J.] is

at - Ti-iE COURT: ¥ou’re not interested - TI-iE WlTl\iESS: -- or what he is doing `iHE COURT: You’re not interested in knowing where this man is’?

Tl~lE WlTNESS: No. Tl-lE COURT: You’re not _ Tl-iE WETNESS: l’m interested in getting my grandchildren home THE COURT: And you’re not interested anymore in knowing who your daughter is dating?

THE VVlTNESS: Weil, l’m sure if my daughter wants to share who she is dating, she will tell me Tl-lE COURT: But you don’t ask her?

THE WlTNESS: No, l don’t.li€’l

No. 76675~9-|/24 When the Departrnent attempted to “clarify” exhibit 77, the lviarch 2016 response filed by the mother’s former attorney concerning a Department social worker’s visit summary, the court took over the questioning repeatedly mischaracterized the mother’s testimony, and ended with an inappropriate comment on the mother’s credibilityl D|RECT EXAM|NATION (ReSur'rled) BY [DEPARTMENT’S A'E'TORNEY]: Q. t'-`>.>_O .> So when we were last talking _ oh, do you have the exhibit?

Thank you. You had said that there was a document that your lawyer had signed your signature to without your consent?

Yes, that’s what l was told by [the social worker]. l had never seen the document myself So looking at Exhibit 77, had you ever seen this document before?

No. Okay. Give me a second here THE COURT: You were told by [the social workeri that lyour former attorneyi had forged your signature?

THE WiTNESS: Weil, [the social worker] was talking to me and going through this report here and l was saying that l didn’t say some of the stuff in here, and she said, “lt's got your name lt’s got your signature on it.” And l was |ike, “l have never even been around her to sign anything" you know, so l _ and l had never seen this or, you know, agreed to it, so - but that’s when l found out about it. She was saying that she had had this paper in front of her and, you know, was kind of saying that l was blaming Cl`-’S for everything and l told her l didn’t know what she was talking about and she said it had my signature on it. That’s why l thought that [my former attorney] had signed my name.[ml THE COURT: l’m assuming folks that this was a file document? [DEPARTMENT’S ATTORNEY]: Yes.

THE COURY: Okay. So let’s take a look at that. See the cause number here? lt says case No. 15-7? See that?

Ti-lE W|TNESS: Yes.

THE COURT: Okay. This means that it’s attached to this case filel right?

THE \.lV!Tl\!E-SS: Yes.

THE COURT: And you know that this is a court file where all the documents filed in this case go, right?

Ti-lE VV|TNESS: Yes.

No. 76675~9-¥/25 _>o.>r>.>o Ti-lE COURT: Okay. But you’re telling us that you were informed by the social worker that your attorney had forged your signature and you never saw this report which was filed with the coun?

THE WlTNESS: She said that my name was signed to it, and l knew l hadn’t signed so l assumed that she had signed my name to it, Because she said my signature was on it, she didn’t - THE COURT: l’m not following your story at all here Okay. you’re telling me that you were informed by the social worker that your lawyer had forged your name on a document filed with the court, and you never looked at this report? "i`l-iE VVITNESS: l had asked She _ [the social worker] was supposed to mail me a copy, but l never got a copy of it.

THE COURT: Weil, how about talking to your next lawyer about getting a copy of this or looking in the court file yourself?

THE VV|TNESS: l don’t recall having the court file, l’m sorry.

Tl-iE COURT: You’ye never seen this document before today?

THEW|TNESS: This one in front of me, 77, no, l haven’t, THE COURT: Which was filed in the court file? You never saw it?

THE WiTl\iESS: l\io, ma'arn, l hayen’t.

THE COURT: Okay. {DEPARTMENT’S ATTORNEY]: Just to step back just a second so now that you have a chance - THE COURT: l’m admitting 77 as an impeachment item.

All right. (Exhibit 77 is admitted.) [DEPARTMENT’S ATTORNEY]: All right Thank you. So [KNUCKLES’ ATTORNEY]: l am sorry. Did you --- THE COURT: l’m admitting 77 for impeachment [KNUCKLES’ ATTORNEY]: Oh, okay. Thank you. (By jDepartment‘s attorney]) You had a chance to review this document over lunch; is that correct? 77?

This one l brief- - l think |’ve -- [my attorney] showed me briefly right before we come [sic] back.

Okay. is -- is this the document that [the social workerj read to you?

Yeah1 we went -- we went through it over the phone, yes Okay.

That’s when l initially, you know, found out about it, THE COURT: Was _

No. 76675~9~|/26 A. l mean [my former attorney] did tell me we did have a short phone conversation and told me she was going to submit something to the court but l didn’t know what. We didn’t talk about what. She didn’t send me a copy of it or nothing like that. And then l get a call from [the social workerj and she was saying you know, what was said and stuff and wanted to know my responses And i had told her l hadn't _ no knowledge of _ of saying this or writing this up with [my former attorney] and she said that my name was signed to it, and that’s when l got concerned THE COURT: So [the attorney] was still representing you then, right?

Tl-lE W|'l'NESS: Yes.

THE COURT: And you still had access to your email, correct?

THE WlTNESS: lt was sporadic when l had le. Warner as an attorney with the email and stuff, but we did try to keep contact in phone -- through the phone THE COURT: You had access to email, did you not?

THE VVlTNESS: When l would leave to get Wi-Fill?l, yes THE COURT: Weil, there’s Wi-Fi all over - THE WiTl\iESS: ¥es.

THE COURT: _ 'i'acoma and Pierce County, isn’t there? 'tl-lE W|TNESS: Yes.

Tl-iE COURT: Okay. So when you had access to Wi-Fi. which, really, you could have done by going anywhere near a Starbucks okay, you had le. Warner’s email address correct?

Your lawyer’s email address you had it?

THE WlTNESS: We just talked by phone THE COURT: You never had your lawyer’s email address?

THE WlTNESS: | _ l couldn’t tell you. l might have it somewhere but we just talked by phone is the only -- THE COURT: Are you seriously telling me that in all your representation with lVls. Warner you never were aware she had an email address?

Tl~tE V\llTNESS: We just didn’t talk about email. We talked by phone THE COURT: ls that a “yes" or “no" that you knew she had an email address?

THE WlTNESS: Yes.

THE COURT: Okay. And when you talked by phone l assume you knew her phone number?

Ti-lE W|TNESS: Yes1 l had it in my phone

No. 76675-9-|/27 Ti-lE COURT: So if you found out that allegedly she put in a document signed by you - or by her purporting to be you that had been filed in the court file did you email her or call her? `l’I-iE VVlTNESS: We spoke on the phone briefly, but she had to go to take care other horses and then l didn’t hear back from her.

THE COURT: Ever?

THE WlTNESS: Not until she told me she wasn’t going to be my lawyer at court no more We didn’t talk again Ti-lE COURT: l see Okay. l’ll tell you bluntly. okay, l don’t believe you.

Tl-iE WETNESS: l’m sorry, Your Honor. l’m iust telling the truth.

THE COURT: l don’t think you are le. Knuckles Back to you, {Departrnent's attorneyj.llal The tenor of the court’s questions and remarks was that of an advocate not a neutral arbiter.

Although we recognize it is appropriate and often necessary for a judge to ask questions of witnesses in a bench trial, and while such questioning is particularly important in cases where the safety of the child is at stake we conclude the cumulative effect of the interjections and questions in this case demonstrated a lack of impartiality, constitutes manifest constitutional error, and violated Knuckles' due process right to a fair trial. The court asked an excessive number of questions elicited evidence in support of the Departrnent’s case aggressively challenged the credibility of the mother and other witnesses she called to testify, and helped elicit favorable evidence on behalf of the Departrnent but foreclosed the mother’s attempts to cross-examine or elicit

13 Emphasis added

No. 76675-9-1/28 favorable testimony ln so doing, the court crossed the line from neutral arbiter to advocate.l9 Because the court violated the mother’s due process right to a fair trial, we reverse the order terminating the mother’s parental rights to B,W.K. and remand for a new trial before a different judge WE CONCUR: Méww, /ic<)’ F:‘°L<Q'Y] j 137