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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
In the Matter of the Adoption of ) No. 90467-7
M.S.M.-P. )
}
N.P., )
)
Petitioner, ) EnBanc
)
v. )
)
A.K. and S.K., )
)
Respondents. )
) Filed OCT 0 8 2015
GONZALEZ, J.-In 2012, N.P.'s parental rights to M.S.M.-P. were terminated in
a closed proceeding. N.P. 's attorney affirmatively consented to the closure, and soon
afterward, M.S.M.-P. was adopted by his stepfather. N.P. seeks reversal because the
trial court closed the proceeding without analyzing the Ishikawa 1 factors. We
conclude N .P. waived his right to open proceedings under article I, section 10 of our
state constitution.
FACTS AND PROCEDURAL HISTORY
M.S.M.-P. was born in April2000. His biological parents, S.K. and N.P., met
in 1999, and their relationship was marked from the beginning by physical abuse
1
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).
In reAdoption of MS.M-P., No. 90467-7
against S.K. S.K. and N.P.'s relationship ended within two weeks ofM.S.M.-P.'s
birth. During the first three years ofM.S.M.-P.'s life, N.P. visited him fewer than 10
times, and he has not seen or had any contact with him since then.
In 2002, when M.S.M.-P. was two years old, his mother S.K. began a
relationship with A.K. S.K., A.K., and M.S.M.-P. have lived together as a family
since 2003, and S.K. and A.K. married in 2008. A.K. has cared for M.S.M.-P. since
they began living together and has been the only father M.S.M.-P. has known. S.K.
and A.K. have had two other children together. In early 2010, A.K. decided to adopt
M. S.M.-P. and sought N .P. 's consent. After N .P. refused to consent to the adoption,
A.K. filed a petition to terminate N.P.'s parental rights and to obtain permanent
custody with the right to adopt. S.K. joined in the petition.
On June 18, 2012, the trial court held a hearing on the petition, including both
the termination and adoption proceedings. N.P. appeared by phone to testify from
Coyote Ridge Corrections Center, where he was serving sentences for drug and
firearm violations. Pursuant to RCW 26.33.060-which provides that "[t]he general
public shall be excluded" from adoption hearings "and only those persons shall be
admitted whose presence is requested by any person entitled to notice under this
chapter, or whom the judge finds to have a direct interest in the case or in the work of
the court"-the trial judge closed the entire hearing to the public. N .P. does not
challenge the closure of the adoption portion of the proceeding, so it is not before us.
2
In reAdoption ofMS.M-P., No. 90467-7
See In reAdoption ofMS.M-P., 181 Wn. App. 301,307 n.7, 325 P.3d 392 (2014). 2
Before the judge closed the hearing, he recited the adoption statute and proposed
putting a sign on the courtroom door indicating that the hearing was closed by law.
He asked whether "anybody ha[s] any input or any thoughts about that at all."
Verbatim Report of Proceedings at 6. Counsel for A.K. responded that it would be
fine and counsel for N.P. stated, "No objection.'? !d. The trial court did not analyze
the Ishikawa factors on the record. At no time did N.P. or his attorney object to the
fact that the courtroom was closed, nor did they make a request for anyone's presence
at the hearing.
On June 20,2012, the trial court orally granted the petition to terminate N.P.'s
parental rights and allowed the adoption to move forward. On July 27, 2012, the trial
court entered written findings of fact and conclusions of law terminating petitioner's
parental rights, findings of fact and conclusions of law on the adoption, and an
adoption decree. N.P. appealed, arguing for the first time that the closure violated his
right to a public trial under article I, section 10 of the Washington State Constitution.
The Court of Appeals concluded N.P. could not raise the issue for the first time on
appeal and affirmed. In re AdoptionofMS.M-P., 181 Wn. App. at 312 (citing In re
Dependency of JA.F., 168 Wn. App. 653, 278 P.3d 673 (2012); RAP 2.5(a)(3); State
2
N .P. 's counsel informed the Court of Appeals during oral argument "that his position is that
only the termination portions of the proceedings below, not the entire adoption proceedings,
were subject to Ishikawa closure requirements." In reAdoption of MS.M -P., 181 Wn. App. at
307 n.7. He has not disavowed this representation.
3
In reAdoption ofMS.M-P., No. 90467-7
v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). We granted N.P.'s petition for
rev1ew. In reAdoption ofMS.M-P., 182 Wn.2d 1001, 342 P.3d 326 (2015).
ANALYSIS
N .P. seeks a new termination proceeding on the grounds that the closure of that
portion of the proceedings violated article I, section 10 of the Washington State
Constitution. He asserts that although his counsel declined to object to the closure, he
may raise the issue for the first time on appeal because it is an issue of constitutional
magnitude. The Court of Appeals found constitutional error but declined to consider
it on appeal because N .P. did not preserve the error and did not show actual prejudice.
In reAdoption ofMS.M-P., 181 Wn. App. at 312 (citing RAP 2.5(a)(3); O'Hara, 167
Wn.2d at 99). We affirm on different grounds. We find that N.P.'s attorney's
decision to consent to the closure was a valid waiver ofN.P.'s rights under article I,
section 10. We hold that in a parental termination proceeding, a statement from a
litigant's attorney that there is no objection to a closure is a sufficient waiver of the
litigant's rights under article I, section 10.3
N .P. argues that there was no valid waiver because N .P. was not advised on the
record of the right to a public trial and was not present when the closure was ordered.
In criminal proceedings a defendant must personally make an informed waiver of
3
Neither party sought our review of the Court of Appeals' decision that closing the termination
portion of the proceedings without considering the Ishikawa factors on the record violated article
I, section 1Q. Thus our opinion is limited to the specific question before us-whether N.P.
waived his rights under article I, section 10.
4
In reAdoption of Jvf.S.NJ.-P., No. 90467-7
certain flmdamental constitutional rights. See, e.g., Brookhart v. Janis, 384 U.S. 1, 7-
8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966) (right to plead not guilty); Johnson v.
Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (right to
counsel); Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 74 L. Ed. 854
(1930) (right to trial by jury); United States v. Gordon, 264 U.S. App. D.C. 334, 829
F.2d 119, 123 (1987) (right to be present at trial). These rights are fundamental to
ensure fair and constitutional criminal trials, and so such decisions have been deemed
f''of such moment that they cannot be made for the defendant by a surrogate." Florida
v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). But whether
to exclude the public from all or a portion of a hearing on a civil parental termination
petition is distinct from the highly consequential decisions in criminal cases that are
reserved to criminal defendants alone.
We find that the right of a litigant in a parental termination proceeding to an
open hearing under article I, section 10 is more commensurate with other
constitutional rights that may be waived through counsel. See, e.g., Wilson v. Gray,
345 F.2d 282, 287-88 (9th Cir. 1965) (right to confrontation may be waived by
criminal defendant's counsel as a matter of trial tactics or strategy); State v.
Valladares, 99 Wn.2d 663,671-72,664 P.2d 508 (1983) (withdrawal of pretrial
motion to suppress evidence waived constitutional rights); Basil v. Pope, 165 Wash.
212, 218-19, 5 P.2d 329 (1931) (failure to challenge juror or move for mistrial waives
litigant's right to claim deprivation of right to a fair trial because of biased juror); In
5
In reAdoption ofMS.M-P., No. 90467-7
re We(fare of Carpenter, 21 Wn. App. 814, 820, 587 P.2d 588 (1978) (in a parental
terniination proceeding, failure to affidavit a potentially biased judge waives right to
assert deprivation of fair trial on appeal). Following Basil, Carpenter, and
Valladares, we hold that in a parental termination case, counsel can effectively waive
a party's article I, section·l 0 rights by saying "no objection" on the record when the
judge inquires about closing the court. We stress that this waiver is personal to that
party and does not affect any other person's article I, section 10 rights.
CONCLUSION
We hold N.P. waived his right to open proceedings under article I, section10
and affirm.
6
In reAdoption of MS.M-P., No. 90467-7
WE CONCUR:
7
In the Matter of the Adoption ofMS.M -P.
No. 90467-7
STEPHENS, J. (concurring)-The majority frames the question in this case
as whether N.P. waived his right to a public trial under article I, section 10 of the
Washington State Constitution. But, this is not the first time we have considered
the validity of a waiver of public trial rights. We should acknowledge what we
have said. Recently, in State v. Frawley, a majority of this court held that in a
criminal trial, the defendant must personally make a knowing, intelligent, and
voluntary waiver of the public trial right. 181 Wn.2d 452, 461-63, 334 P.3d 1022
(2014) (Johnson, J., lead opinion), 467-69 (Stephens, J., concurring), 471-76
(Gordon McCloud, J., concurring). While the waiver need not be made on the
record, the record must indicate the defendant's affirmative assent. Id. at 461-62
(Johnson, J., lead opinion), 469 (Stephens, J., concurring), 475-76 (Gordon
McCloud, J., concurring); see also State v. Herron, No. 89571-6, slip. op. at 6-7
(Wash. Aug. 20, 2015) (describing holding in Frawley and also noting requirement
to afford a meaningful opportunity to object to closure).
In the Matter of the Adoption ofM.S.M-P., 90467-7 (Stephens, J. Concurrence)
Frawley and Herron confirm that the waiver standard with respect to public
trial rights in the criminal context aligns closely with the cases the majority cites to
describe decisions that are "'of such moment that they cannot be made for the
defendant by a surrogate."' Majority at 5 (quoting Florida v. Nixon, 543 U.S. 175,
187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004)). Conversely, it is not akin to those
decisions that may be waived by counsel as a matter of trial tactics or strategy. See
majority at 5-6 (citing State v. Valladares, 99 Wn.2d 663, 664 P.2d 508 (1983)
(withdrawal of pretrial suppression motion)); Wilson v. Gray, 345 F.2d 282 (9th
Cir. 1965) (waiver of cross-examination and confrontation). There can be no
doubt that had this been a criminal trial, N.P.'s counsel's statement that he had
"[n]o objection" to closing the termination hearing would not be enough.
Verbatim Report of Proceedings at 6.
So, why is this statement-made at a proceeding N.P. did not attend-
sufficient to constitute a valid waiver in the civil context? The majority does not
say. It instead analogizes the public trial right itself, albeit in the civil context, to
rights we have said are different from the public trial right in the criminal context.
See majority at 5. This is confusing at best. At worst, it suggests we regard open
public trials in the civil context as nothing more than a matter of trial strategy.
While I agree that N.P. validly waived his right to object to the closure, I would
recognize that it is not the public trial right that is different, or of lesser moment, in
the civil context. Rather, the standard for determining the validity of a waiver
differs between civil and criminal cases.
-2-
In the Matter of the Adoption ofM.S.M-P., 90467-7 (Stephens, J. Concurrence)
In civil cases, this court has recognized that most constitutional trial rights
may be subject to procedural requirements for exercising them. Thus, a civil
litigant may waive very substantial rights, such as the right to a jury trial or the
right to complain of a biased juror, based on the terms of a valid statute or court
rule. See, e.g., State v. Kratzer, 70 Wn.2d 566, 570, 424 P.2d 316 (1967)
(recognizing inviolate right to trial by jury under article I, section 21 of the
Washington State Constitution "may even be waived by inaction where the law
calls for specific acts by which the right is asserted"); Sackett v. Santilli, 146
Wn.2d 498, 47 P.3d 948 (2002) (upholding validity of CR 38(d), providing for
waiver of jury trial right by failure to make timely demand, as consistent with
article I, section 21); Basil v. Pope, 165 Wash. 212, 218-19, 5 P.2d 329 (1931)
(recognizing "well established" rule that failure to timely challenge biased juror
waives right to objection after verdict).
Of significance here, the termination and adoption proceedings were joined
and all parties to the proceeding were on notice of RCW 26.33.060, which
provides in relevant part:
All hearings under this chapter [adoption proceedings] shall be heard by the
court without a jury. Unless the parties and the court agree otherwise,
proceedings of contested hearings shall be recorded. The general public
shall be excluded and only those persons shall be admitted whose presence
is requested by any person entitled to notice under this chapter or whom the
judge finds to have a direct interest in the case or in the work of the court.
Though this statute was not directly applicable to the termination portion of the
proceedings, given the procedural posture of this case the parties were on notice
-3-
In the Matter of the Adoption ofMS.M-P., 90467-7 (Stephens, J. Concurrence)
that they needed to bring any concerns about closure to the attention of the trial
judge before any hearings began. The statutory basis of this notice is important
when we consider counsels' representations to the court that their clients had no
objection to the closure. This was not an issue that came up "on the fly" but was
an integral part of the proceedings that we can expect counsel and their clients
would discuss.
Without appreciating this specific context, readers of the majority opinion
might get the wrong impression. The right to an open, public trial is not of lesser
moment in the civil context. Indeed, we have recognized article I, section 10 "is
not an abstract theory of constitutional law, but rather is the bedrock foundation
upon which rest all the people's rights and obligations." John Doe v. Puget Sound
Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991). A civil litigant, no less
than a criminal defendant, has an '"individual right to have the proceedings open to
the observation and scrutiny of the general public.'" In re Det. of Morgan, 180
Wn.2d 312, 325, 330 P.3d 774 (2014) (quoting In re Det. ofD.F.F., 172 Wn.2d 37,
40, 256 P.3d 357 (2011)). This right is not simply a matter of trial strategy, left to
counsel's discretion. To the contrary, where open, public trials are concerned, the
analysis we employ recognizes courts have an independent obligation to safeguard
our system of justice and are not bound by the litigants' preferences. See Seattle
Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).
We have never before said whether statutes and court rules addressing the
particular circumstances of special proceedings may establish the moment at which
-4-
In the Matter of the Adoption ofMS.M-P., 90467-7 (Stephens, J. Concurrence)
a civil litigant is required to speak up or be precluded from later claiming a public
trial right violation. I believe they, just as other substantial rights, including the
right to a civil jury trial, may be waived by inaction in the face of such statutes or
rules. In this context, N.P. 's counsel's representation that N.P. had no objection to
closure effected a valid waiver of his article I, section 10 rights. On this basis, I
concur in the judgment of the court.
-5-
In the Matter of the Adoption ofMS.M-P., 90467-7 (Stephens, J. Concurrence)
-6-