Termination Of Parental Rights Of S.j.a.g.v. Cynthia Vaughn, Appellant V. Dshs, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
S.J.A.G.V.
DOB: 10/14/2013
J.A.H.
DOB: 6/12/2007
J.A.H J.
DOB: 12/28/2003
J.S.C.J.
DOB: 12/7/2001
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent,
v.
CYNTHIA MICHELLE VAUGHN,
Appellant.
No. 74150-1-1
(consolidated with Nos.
74153-5-1, 74152-7-1, and
74151-9-1)
DIVISION ONE
UNPUBLISHED OPINION
FILED: December 12, 2016
Appelwick, J. — The trial court terminated the parent-child relationship
between Vaughn 	and 	her four children. 	Vaughn 	argues that the trial 	court
violated the appearance of fairness doctrine by assisting the State at trial. 	She
also argues that she received ineffective assistance of counsel when her attorney

No. 74150-1-1/2
failed to object to the admission of evidence that impeached Vaughn's testimony.
We affirm.
FACTS
The 	State sought termination 	of the 	parent-child 	relationship 	between
Cynthia Vaughn and her children. 	Vaughn had 	long struggled with drug and
alcohol abuse. 	At the time of the hearing in August 2015, Vaughn had three
separate pending theft charges. 	Vaughn was also residing with a convicted sex
offender. 	The trial court found that she had not been playing a meaningful role in
the lives of her four children, who had not lived with her since 2013. 	It terminated
Vaughn's parent-child relationships, citing her "substance abuse, child neglect,
and bad choice of partners." Vaughn appeals.
DISCUSSION
Vaughn makes two arguments. 	First, 	she 	argues that the trial 	court
violated the 	appearance 	of fairness 	doctrine 	by sua 	sponte 	reviewing 	her
declaration regarding a protection order. 	Second, she argues that she received
ineffective 	assistance 	of counsel 	when 	her 	attorney 	failed 	to 	object to 	the
admissibility of a drug and alcohol evaluation at trial.
I. 	Appearance of Fairness
Vaughn argues that the trial court's actions violated the appearance of
fairness doctrine. Specifically, Vaughn points to the judge's sua sponte pursuit of
relevant evidence and proposal of theories of admission of evidence.

No. 74150-1-1/3
Due process, the appearance of fairness doctrine and canon 2.1(A) of the
Code of Judicial Conduct require a judge to recuse herself if her impartiality may
reasonably be questioned. 	West v. Wash. Ass'n of County Officials, 162 Wn.
App. 	120, 	136-37 & n.12, 	252 	P.3d 406 	(2011). 	Under the appearance of
fairness doctrine, 	a judicial proceeding 	is valid only if a 	reasonably prudent,
disinterested observer would conclude that all parties obtained a fair, impartial,
and neutral hearing. 	State v. Bilal. 77 Wn. App. 720, 722, 893 P.2d 674 (1999).
The law goes farther than requiring an impartial judge; it also requires that the
judge appear impartial. 	State v. Madrv, 	8 Wn. App. 61, 70, 504 P.2d 1156
(1972).
Vaughn argues that the trial judge violated the appearance of fairness by
referencing documents related to a protection order entered against Vaughn in
another case. 	Vaughn's husband, Davelle Bridges, sought that protection order
against Vaughn 	in 	November 2014. 	The petition 	alleged that Vaughn 	had
threatened and had stolen from Bridges to support her heroin addiction. 	The
State had successfully moved to admit both the petition for the protection order
and the order itself. 	During testimony, the State asked Vaughn whether the
protection order remained in place. 	Vaughn had filed a motion to modify that
protection order in January 2015, but she was uncertain as to the result of that
motion. 	However, she testified that Bridges had told her that he had removed the
protection order.

No. 74150-1-1/4
In an effort to clarify whether Bridges had removed the protection order,
the trial judge, sua sponte, reviewed the docket pertaining to the protection order.
Contrary to Bridges's representations to Vaughn, the protection order was still in
place. 	The trial judge also found Vaughn's January 2015 declaration in support
of her motion to modify the protection order. 	Vaughn's declaration contested
Bridges' version of events. 	In explaining why he sought the declaration, the trial
judge stated,
[Wjhat's missing—and I had just printed—was the—the portion that
has the clearer foundation, and that was Ms. Vaughn's response,
her motion to modify filed in January in which 	she sets out her
position and makes her own statements about what was alleged
and what her—what she believed the situation was. 	That's the—
the clearest foundation, but it's—it's in the—in the really matters of
most interest and the most lacking and the hearsay problems [sic].
The 	trial 	court then 	read 	the 	declaration 	aloud. 	Like 	Vaughn's 	testimony,
Vaughn's declaration alleged that the protection order" 'was entered under false
accusations'" by Bridges.
The declaration corroborated Vaughn. 	But, Vaughn nevertheless objected
to the court's sua sponte actions. 	In response to the objection, the court stated,
I don't know who assist—who is assisting or isn't. 	What I want to
do is find out what is going on with the family and all the people
involved. 	And, 	when 	I was 	given 	the 	cause 	number for 	the
protection order case and the representation was made that—that
Mr. Bridges had sought its recall, I checked on the court file in order
to—to 	ascertain whether that was 	okay or if there 	might 	be a
potential problem upon going Nnaudiblel two of them, And what I
found was no recall order, but the—this petition to modify, I guess,
that Ms. Vaughn filed, but in January, and then nothing since then?
Nothing's happened since January, I guess?

No. 74150-1-1/5
(Emphasis added.) 	After Vaughn objected, the court did not read any more
pleadings from 	the 	protection 	order docket, 	and 	the 	declaration 	was 	never
admitted as an exhibit.
There is no indication that it reviewed the docket for the purpose of fact-
checking Vaughn. 	Indeed, Vaughn made no firm statement regarding the status
of the protection order.1 	Thus, any investigation of the protection order docket
could 	not have 	resulted 	in a 	contradiction of Vaughn's testimony. 	The trial
judge's actions were an effort to verify whether Bridges's statement to Vaughn,
that the order had been quashed, was true. 	We find no error in verifying the
continued existence of the order.
The trial judge also found and read Vaughn's declaration in that file. 	He
observed that Vaughn's declaration had the "best foundation" and the least
hearsay issues, presumably compared to the petition and order already admitted.
When this comment raised concerns, the information was read to both parties.
When 	Vaughn 	objected, 	the evidence was 	not admitted. 	The file 	review
terminated. 	Neither a motion for recusal or mistrial was made. 	And, Vaughn
does not suggest the trial court relied on the declaration's content or that the
content affected the outcome of the proceeding.
Vaughn seeks to equate this case to State v. Ra, 144 Wn. App. 688, 175
P.3d 609 (2008). 	The court found "inappropriate the trial court's proposal of
1 Vaughn only stated that Bridges had told her the protection order had
been quashed. 	She did not claim to have actual knowledge about whether the
order was quashed or not.

No. 74150-1-1/6
theories for the State to use in admitting improper ER 404(b) evidence." 	Id. at
705. 	However, the court ultimately reversed on other evidentiary grounds, and
as a 	result did not directly consider "whether the trial court's violation 	of the
appearance of impartiality alone would warrant reversal." 	Id
Even so, this case is distinct from Ra in two key areas. 	First, the Ra trial
court's statements 	unquestionably favored 	the 	prosecution. 	Id. 	But, in the
instant case, the trial court's actions did not appear to substantively favor either
party's position. 	And, the declaration that the trial court read into the record
actually bolstered Vaughn's credibility by echoing her past testimony. 	Second,
the holding in Ra was in the context of numerous other statements by the trial
judge that evinced disdain for the defendant. 	]d 	The trial court in Ra stated that
the defendant was a " 'distorted character who lives and breeds violently.' " ]d
At one point, the prosecution stated, " 'I think it is accurate that the reason he
shot [the victim] was to elevate his status among his peers,' " to which the court
responded in agreement:" '[b]ravado, distorted importance.'" 	Id at 696.
But, 	in Vaughn's 	case, 	the 	court 	made 	only an 	isolated 	statement
suggesting that the declaration—which was not clearly prejudicial to either side—
had less hearsay problems than the pleadings offered by the prosecution. 	It
arose in the context of verifying the continued existence of the protective order.
And, the substance of that declaration ultimately showed that Vaughn had been
consistent in 	her testimony pertaining to both the 	protection order and 	the
termination. 	The record reflects no actual or apparent bias against Vaughn. 	An

No. 74150-1-1/7
objective viewer would not question the trial court's impartiality. 	The trial court's
actions did not violate the appearance of fairness doctrine nor Vaughn's due
process rights.
II. 	Ineffective Assistance of Counsel
Vaughn also argues that she received ineffective assistance of counsel at
trial. 	A parent's right to counsel in termination proceedings is derived from the
constitutional guarantees of due process under the Fourteenth Amendment of
the 	United 	States 	Constitution 	and 	article 	1, 	section 	3 	of 	the 	Washington
Constitution. 	In re 	Welfare of J.M.. 	130 Wn. App. 912, 	921, 	125 	P.3d 	245
(2005). 	Whether a proceeding satisfies due process is a question that we review
de novo. 	In re Pet, of Fair, 167 Wn.2d 357, 362, 219 P.3d 89 (2009).
To show ineffective assistance of counsel, Vaughn must show deficient
performance and resulting prejudice. 	State v. Turner, 143 Wn.2d 715, 730, 23
P.3d 499 (2001). 	A deficient performance falls below an objective standard of
reasonableness based on consideration of all of the circumstances. 	State v.
Thomas, 	109 Wn.2d 	222, 	226, 	743 	P.2d 	816 	(1987). 	Scrutiny of counsel's
performance is highly deferential and courts will indulge in a strong presumption
of reasonableness. 	Id at 226. 	Only in "egregious circumstances," on testimony
central to the State's case, will the failure 	to object constitute incompetence
justifying reversal. 	State v. 	Madison, 	53 Wn. App. 	754, 763, 	770 P.2d 662
(1989). 	Relatedly, where a claim of ineffective assistance of counsel rests on
trial counsel's failure to object, a party must show that an objection would likely

No. 74150-1-1/8
have been sustained. 	State v. Fortun-Cebada, 158 Wn. App. 158, 172, 241 P.3d
800(2010).
Vaughn argues that her counsel should have objected to the admission of
a drug and alcohol evaluation that contradicted her testimony about her most
recent 	heroin 	usage. 	The 	evaluation 	had 	three 	primary 	components. 	It
contained (1) a diagnosis, (2) a summary of relevant personal history based on
statements made by Vaughn to the counselor at the treatment facility, and (3) the
counselor's subjective impressions and recommendations. 	Vaughn argues that
such evidence is clearly hearsay, and 	it was therefore deficient for Vaughn's
attorney 	not to object. 	Vaughn further argues that the 	evaluation 	was 	not
admissible under the business records exception to the prohibition on hearsay.
Both the statements by Vaughn and the document containing them must be
nonhearsay or qualify for a hearsay exception to be admissible. ER 805.
A statement in which the party has manifested an adoption or belief in its
truth is exempt from exclusion as hearsay as a party admission. 	ER 801(d)(2).
Vaughn 	made the statement about her last usage to the counselor, and it
therefore qualifies as a party admission and was admissible.
Documents qualify for the business records hearsay exception when they
are created in the ordinary course of business and there is no evidence of motive
to falsify. 	State v. Ziegler, 114 Wn.2d 533, 537-38, 789 P.2d 79 (1990); RCW
5.45.020. 	Here, a representative of the treatment organization testified that with
respect to patients' statements about past use, "we write down what the client
8

No. 74150-1-1/9
says during that interview." 	She also testified that the evaluation was created
and maintained in the ordinary course of business.
Vaughn argues that the entire document is not admissible as a business
record 	because 	it 	contained 	the 	counselor's 	"subjective 	impressions 	and
observations 	and 	applies 	her 	training, 	skill, 	and 	discretion 	to 	make
recommendations 	about treatment." 	But, 	the 	portion 	of 	the 	document that
contained 	the 	statement 	about 	Vaughn's 	last 	drug 	usage 	was 	not 	in the
subjective 	assessment 	section 	of the 	document. 	Rather, 	the 	"last 	usage"
evidence 	that 	prejudiced 	Vaughn 	was 	within 	the 	"Substance 	Abuse 	and
Treatment History" section. 	And, in that section, the counselor gave an objective
summary of what Vaughn had told her. 	This section gave no subjective analysis
of Vaughn's addiction problems. 	Therefore, the patient history portion of the
evaluation, including the statement regarding last usage, qualified as a business
record exempt from the prohibition on 	hearsay. 	The subjective assessment
section appearing later in the document would have been subject to redaction if
requested, 	but would not have prevented the 	history portion of the 	business
record from being admitted. 	Vaughn's attorney did not perform deficiently by
failing to object to its admission.
Because we have determined that the portions of the evaluation pertaining
to 	last 	usage 	were 	admissible, 	we 	need 	not 	address 	whether 	counsel's
performance prejudiced Vaughn. 	State v. Fredrick, 45 Wn. App. 916, 923, 729
P.2d 56 (1986) ("The reviewing court need not address both prongs of the tests if

No. 74150-1-1/10
the defendant makes an insufficient showing on 	one prong."). 	We hold that
Vaughn did not receive ineffective assistance of counsel.
Affirmed.
WE CONCUR:
iSt<ri(*\c^-yL th^.T,
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