In Re Hiebert
- Reporters:
- , ,
- Before:
- Roe
Some 5 months after Denise Hiebert was born, she was found to be a dependent child in Pend Oreille County. On June 8, 1978, when she was 14 months old, a petition permanently to deprive the parents of custody was filed. A final disposition on the merits of this petition was never made, but continued supervision by the Department of Social and Health Services was agreed to by the parties and approved by the court. On November 25, 1980, a new petition for permanent deprivation of parental rights was filed. Ten days later, as to this permanent deprivation action, petitioners filed an affidavit of prejudice against the judge who had heard and made the orders finding the dependency of Denise and placing her under care. The judge denied the affidavit of prejudice and thus refused to disqualify himself. It is from this denial the petitioner seeks review.
Under
The issue is whether the juvenile court erred in denying an affidavit of prejudice in a proceeding for permanent deprivation of parental rights when the judge against whom the affidavit was filed had presided over all prior dependency hearings.
In Bedolfe v. Bedolfe, 71 Wash. 60, 127 P. 594 (1912), after a decree of divorce had been entered, a modification was sought. An affidavit of prejudice was filed against the judge who had heard the original divorce action. It was argued that the application for a modification of the decree was a continuation of the original case and hence the statute pertaining to affidavits of prejudice did not apply. The Supreme Court agreed that the modification of a decree in a divorce action is a continuation of the original case, but disagreed that the statute did not apply, holding that the statute in positive terms provides that no judge of a superior court shall sit or hear or try any action or proceeding when his prejudice has been established. This is a purely statutory right, and a modification is a new proceeding in the original action. After the original case has gone to final judgment, the statute becomes applicable to any subsequent proceeding in the original case. Hence, it held the affidavit of prejudice and the transferring to another judge was proper.
This rationale was approved in
State ex rel. Foster v. Superior Court,
95 Wash. 647, 164 P. 198 (1917). Again, there had been a divorce decree entered and a subsequent petition to modify the decree accompanied by an affidavit of prejudice against the judge who had heard the divorce case. The Supreme Court held that a modification of a divorce decree, as to the custody of children, is a proceeding within the meaning of the statute. In a divorce decree the court has continuing jurisdiction. However, the affiant‘s right for a change of judge had not been abandoned by the
We recognize that a dependency action may or may not go to a final judgment and that some of the facts justifying dependency would also be considered in permanent deprivation. A dependency action has different objectives, i.e., the best interest of the child without the deprivation of all parental rights. Permanent deprivation requires a new notice and action and is directed against the parents. In In re Martin, 3 Wn. App. 405, 476 P.2d 134 (1970), the parents had defaulted in an action to declare a child dependent. Nevertheless, they were entitled to a new notice in a petition for permanent deprivation. Failure to accord them such notice was a violation of due process because such proceedings could result in the deprivation of all parental rights, which was not at issue in the dependency hearing.
The appellants allege that the precise question confronting this court was decided in their favor in the case
of In re Gibson, 4
Wn. App. 372, 483 P.2d 131,
review denied,
79 Wn.2d 1003 (1971). In that case the Gibson children were made temporary wards of the court. The following year, a petition for permanent deprivation of parental rights was filed. The case was set for hearing before the same judge who heard the dependency petition and an affidavit of prejudice was filed. The juvenile court judge refused to recognize the affidavit for the reason he had already exercised his discretion in the dependency hearing, and he considered the permanent deprivation as a’ part of the disposition
It has been suggested by the juvenile court judge here that the Gibson case is authority, if at all, under the former juvenile law and that under the 1977 juvenile court act, a different result would be obtained.
In re Frederiksen, 25 Wn. App. 726, 739, 610 P.2d 371 (1979), in discussing previous and present juvenile court laws, concluded
that the legislative intent was not to repeal any portion of existing law relating to juveniles and juvenile court, but instead to continue, amend and supplement it.
This was approved in In re Aschauer, 93 Wn.2d 689, 611 P.2d 1245 (1980), which involved an action permanently to deprive the parents of the custody of their children. The Supreme Court, in adopting the rationale of In re Fred-eriksen, supra, held the new law, which is described internally as an amendatory act, should be read as a continuation of the old law with amendments and supplements.
We conclude the original order for permanent deprivation was abandoned; hence, we need not consider what action the juvenile court judge took pursuant to that original petition. A subsequent and new petition (not an amended petition) was filed. Ten days after this petition, an affidavit of prejudice was filed. The judge of Pend Oreille County took no action on the new petition except to reappoint the same guardian ad litem for the child, appoint an attorney for the father, reappoint the attorney for the mother, and set the case for hearing.
An affidavit is not timely unless it has been made
We are sympathetic with the trial judge who urges that In re Gibson, supra, if it was the law of the state, was removed by the new codification. The trial judge in this case obviously had in mind the possible permanent deprivation when dependency was determined. As he expressed it, this child who has been deprived of security, love and a proper home must suffer further delay until an outside judge can be secured. There will be additional cost because more testimony will have to be produced, thus depriving the court of the memory judge who sat through the many previous hearings, and those who worked with the child who will have to be located or the testimony lost. All of these facts may be true. The same may be said of a petition to modify a decree in a divorce action which could take place a number of years after the original divorce. It may also take place in a criminal action where a judge may have heard one case involving a codefendant in separate trials. We do not seek to extend this statutory right for a change of judge which did not exist at common law nor does it exist in the federal court system. Nevertheless, we are bound by our statute and the principles of the Washington cases.
We hold that an affidavit of prejudice may be filed against the judge who heard the dependency matter involv
McInturff, C.J., and Green, J., concur.