Opinions: Attorney discipline, parental rights, and auto-jail provisions
Today the Supreme Court issued decisions in three cases.
In Re Discipline of Paul H. King, No. 200,681-7 (briefs). The Supreme Court adopted a Disciplinary Board recommendation to disbar Paul H. King for violating the Rules of Professional Conduct by representing a client while suspended from the practice of law. Justice James Johnson wrote the opinion, while Justice Richard Sanders concurred separately.
In re the Welfare of A.B., No. 80759-1 (briefs and argument). The Supreme Court overturned a trial court decision to terminate the parent-child relationship between Rogelio Salas and his daughter, A.B. The child was born in 2001 with cocaine in her system. The Department of Social Health Services (DSHS) removed A.B. from the custody of the mother and placed her in a foster home. The mother’s parental rights were terminated and the child was eventually placed in a home with a distant cousin of the mother. Having never been married to the mother, Salas was living in Las Vegas when A.B. was born. His paternity was confirmed but because of his own substance abuse history he was only granted visitation rights. He later completed a recovery program. The State eventually filed a petition for termination of parental rights which a trial court granted, though the court never entered a finding that Salas was an unfit parent.
The Supreme Court today rules that a parent has a due process right not to have the State terminate his or her relationship with a natural child in the absence of a finding that he or she, at the time of trial, is currently unfit to parent the child. The Court directed the trial court to supervise the “prompt but orderly” transfer of A.B. to Salas’ home unless the parties agree otherwise. The majority was written by Judge J. Dean Morgan, who served as justice pro tempore. Chief Justice Barbara Madsen concurred separately.
Justice Tom Chambers wrote a strong dissent. “The court’s order today also confounds me. A.B. is living with her family. She has been raised by her mother’s cousin almost since birth. Her mother’s cousin has also adopted A.B.’s younger half brother, who has lived with his eldest sister his entire life. The ‘prompt but orderly transfer’ ordered by the court today will wrench this child out of the only home she has ever known and deprive a brother of his sister. Even if the trial judge did err by following this court’s well settled case law, the proper remedy would be remand for further proceedings.”
(Parenthetically, I am surprised at the delay between oral argument and this decision. The case was argued on June 24, 2008. Given the profound impact this decision will have on a child's life, a two-year delay is an inordinate amount of time.)
State v. Nason, No. 82333-2 (briefs and argument). Spokane County has a policy of imposing jail time on offenders who fail to pay court costs. James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. Nason argues this “auto-jail” provision violated his due process rights. The Supreme Court unanimously agreed, with Justice Mary Fairhurst writing the opinion. The Court held that before sanctions are imposed on an offender for failure to pay a legal financial obligation, the trial court must inquire into the offender’s ability to pay when sanctions are sought. “To the extent that an auto-jail provision calls for incarceration without a contemporaneous inquiry into the offender’s ability to pay, it is void. Because the trial court in this case sentenced Nason to 30 days in jail for failure to report to jail under the auto-jail provision, Nason needs to be resentenced.”
