Category Archives: Allocation of Responsibility

May counsel waive a parent’s right to public hearing in a parental termination proceeding?

In In re Adoption of M.S.M.-P., No. 90467-7, 2015 WL 5916968, at *2-3 (Wash. Oct. 8, 2015), the state Supreme Court held that counsel could do this.   While acknowledging that wavier by counsel alone would not suffice to waive a right to a jury trial, it found the right to a public trial in the termination of parental rights to be more like other rights that could be waived by counsel alone.    The Court’s comparisons are interesting:
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 certain fundamental 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 “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.
*3 2 ¶ 8 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 Wash.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 re Welfare of Carpenter, 21 Wash.App. 814, 820, 587 P.2d 588 (1978) (in a parental termination 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 10 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.
It is also interesting to consider counsel’s decision in connection with RPC 1.2.  That rule does not require counsel to defer to a client’s decision on this issue, but it at least requires counsel to consult with his client before deciding a “means” question, unless the decision is “impliedly authorized” to carry out the representation.   Apparently counsel did not have the opportunity to consult with the client, who was not present when the waiver occurred.   Was it “impliedly authorized”?