Held:

Reversed

Facts: Respondent-Father appeals the termination of his parental rights as to two children based on three grounds, including a prior involuntary termination of parental rights as to another child. Petitioners initiated this private TPR action, alleging their intent to adopt the children. At the hearing, Father testified that he had voluntarily relinquished his rights to five of his six other children. Two months after the TPR hearing and before entering the TPR order, the trial court recalendared the matter on its own motion. During that hearing, the trial court informed the parties that it had researched the veracity of Father’s statements regarding his voluntary relinquishment. Over Father’s counsel’s objection, the court reopened the evidence to take judicial notice of three case files of previous termination proceedings involving Father. The trial court stated it has an obligation to correct inaccurate or untruthful testimony. The trial court ultimately adjudicated each of the three grounds and terminated Father’s parental rights. Father argues the trial court erred by engaging in a prejudicial ex parte investigation that usurped the adversarial process. Father’s successful challenges to the trial court’s adjudication of each ground are summarized separately.
A trial court may take judicial notice of prior orders but must receive oral testimony at the hearing and make an independent determination regarding evidence presented. Rule 614 of the Rules of Evidence authorizes a judge to call and question witnesses. A judge is an impartial fact finder and decisionmaker based on the evidence and advocacy of the parties. “Information obtained through an ex parte investigation [cannot] constitute a basis for the requisite findings of fact.” Sl. Op. at 14. Further, a judge’s own memory is not evidence.
Here, the trial court prejudicially erred by conducting an ex parte investigation into Father’s prior termination proceedings, reopening the evidence, and taking judicial notice of the orders discovered through its own investigation. Petitioners did not offer testimony that Father’s parental rights were previously terminated nor offer the prior TPR orders into evidence. Competent evidence consisted of Father’s testimony that he relinquished his parental rights to five of his six other children. The burden to prove Father’s rights to any of his other children had been involuntarily terminated was on Petitioners, and “[b]y finding facts after an inquisitorial ex parte investigation, the trial court shed its impartiality and abandoned its role as a neutral decisionmaker.” Sl. Op. at 15.

Category:

Termination of Parental Rights

Stage:

Hearing

Topic:

Evidence

Tags:

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burden of proof