In re the Welfare of G.E. , 116 Wash. App. 326 ( 2003 )

Quinn-Brintnall, J.

K.L. and C.E. appeal the orders that terminated their parental rights as to their children, T.E., N.E., and G.E. A commissioner of this court reviewed this matter under RAP 18.13 and a panel of judges decided subsequent motions to modify. The commissioner resolved all issues except one: Does the record establish that C.E. waived his right to be represented by counsel during the termination proceedings? It does not, and so we reverse.

FACTS

K.L. and C.E. are the mother and father of T.E., born January 24, 1999; N.E., born February 26, 1997; and G.E., born January 22, 1996. In March 1997, the Department of Social and Health Services (DSHS) filed dependency petitions claiming that G.E. and N.E. were dependent children. The superior court appointed Kendra Sprague¹ to represent C.E. K.L. and C.E. entered into agreed orders of dependency. The court found the children dependent in May 1997 and ordered the parents to complete drug and alcohol evaluations and to follow all recommendations. The court allowed G.E. and N.E. to remain in their parents’ custody.

Over the period of G.E.’s and N.E.’s dependency, K.L. and C.E. minimally complied with the court-ordered services. By November 1998, DSHS’s social worker and the children’s guardian ad litem recommended dismissing the dependencies. The record does not show why, but Amanda Vey had replaced Sprague as C.E.’s counsel by the end of the dependencies. In December 1998, the court dismissed the dependency orders as to G.E. and N.E.

T.E. was born the next month. Two months later, DSHS filed new dependency petitions regarding G.E. and N.E. and a dependency petition regarding T.E. The petitions claimed that K.L. had used methamphetamine during her pregnancy with T.E. and had not sought prenatal care.

Vey again represented C.E. as his appointed counsel. K.L. and C.E. did not contest the petitions. On July 19,1999, the superior court found G.E., N.E., and T.E. to be dependent children. The court ordered C.E. and K.L. to undergo assessments and to participate in services. The court allowed N.E. and G.E. to remain in their parents’ custody, subject to their compliance with the juvenile court’s orders and to their having negative urinalysis (UA) results. The court placed T.E. in foster care.

C.E.’s and K.L.’s custody of N.E. and G.E. lasted for approximately two months after the dependency hearing. Then, in September 1999, the court ordered DSHS to remove N.E. and G.E. from their parents’ custody and place them in foster care because C.E. and K.L. had failed to comply with ordered services and to provide UA samples.

By the March 2000 review hearing, Stephen Geringer had replaced Vey as C.E.’s appointed counsel. The record does not show why, though some of DSHS’s individual service and safety plans suggest that C.E. had fired Vey.

On June 29, 2000, a court commissioner granted Geringer’s motion to withdraw immediately as C.E.’s appointed counsel. The order on withdrawal did not state the reasons for Geringer’s withdrawal. The order on withdrawal stated, “Anew attorney will not be appointed by the court.” Ex. 175. C.E. did not retain an attorney. C.E. represented himself during the remaining review hearings in September 2000, December 2000, and March 2001.

DSHS filed termination petitions in November 2000 and the court scheduled a termination hearing for March 15, 2001. On that date, K.L. and C.E. asked for the first time that the court appoint counsel to represent them in the termination proceeding. DSHS did not object to K.L.’s request, but it did object to C.E.’s request because the court commissioner had ordered that the court would not appoint new counsel for C.E. The termination court responded, “We treat [the dependency and termination proceedings] as separate proceedings and that’s why I made inquiry as to whether there was specifically an [attorney appointment] issue addressed in the termination cases themselves.” Report of Proceedings (RP) (Mar. 15, 2001) at 5. The court appointed Jodi Backlund to represent C.E. and continued the termination hearing to May 31, 2001.

At the start of the May 31, 2001 hearing, Backlund moved to withdraw as C.E.’s counsel under RPC 1.15. The court asked C.E. whether he objected to Backlund’s withdrawal as his counsel but did not inform him that if Backlund withdrew he would be required to represent himself.

THE COURT: Then, [C.E.], my inquiry to you right now is are you joining in the request that new counsel represent you?

[C.E.] Yes, I am.

RP (May 31, 2001) at 10.

The court conferred with Backlund off the record about her motion. Backlund disclosed only that the conflict regarded a future event. The court found that C.E. had made Backlund’s representation of him unreasonably difficult and granted Backlund’s motion. The court then directed C.E. to proceed pro se:

[A]s I understand the history of these cases, there’s been periods through the dependency and even in the termination case where [C.E.] has previously refused to request court appointed counsel up until the beginning of the trial back on March 15th. And during the dependency has had other counsel represent him and at least one of those counsel withdraw because of a conflict or potential conflict under the rules of professional conduct. So given that situation, and the finding of the Court on potential — or the rule for the potential violation regarding Ms. Backhand, [C.E.], I’m not going to appoint new counsel. I should also make note that the Court Commissioner has previously ruled that no new counsel would be appointed in the dependency proceedings. So I’m not going to appoint new counsel, you can represent yourself on the matter.

RP (May 31, 2001) at 12-13.

C.E. protested that he did not understand the nature of the proceedings and needed legal representation. The court again refused to appoint counsel because C.E. had declined opportunities during the dependency hearings to request counsel and because C.E. had already delayed the termination proceeding by seeking representation on the day of the previously scheduled hearing. The court did not continue the termination hearing.

At the conclusion of the termination hearing, the court found that DSHS had proven by clear, cogent, and convincing evidence all of the elements required by former RCW 13.34.180(1) (2000). The court further found that terminating K.L.’s and C.E.’s parental rights would be in the best interests of G.E., N.E., and T.E. We affirmed the termination of K.L.’s parental rights on May 21, 2002.

ANALYSIS

C.E. argues that the court erred when it refused to appoint him new counsel and when it required him to represent himself at the termination hearing. Parents have a statutory right to counsel in child dependency proceedings, including parental rights termination proceedings. RCW 13.34.090(2); In re Dependency of Grove, 127 Wn.2d 221, 232, 897 P.2d 1252 (1995).²

C.E.’s statutory right to counsel is set forth in RCW 13.34.090(2):

At all stages of a proceeding in which a child is alleged to be dependent, the child’s parent, guardian, or legal custodian has the right to be represented by counsel, and if indigent, to have counsel appointed for him or her by the court. Unless waived in court, counsel shall be provided to the child’s parent, guardian, or legal custodian, if such person (a) has appeared in the proceeding or requested the court to appoint counsel and (b) is financially unable to obtain counsel because of indigency.

Having determined that C.E. has a statutory right to representation in the termination proceeding, we turn now to whether he waived it. We first address the standard for determining waiver of the statutory right to counsel; we then address whether the record before us is sufficient to support waiver.

Standard of Review of Waiver of Statutory Right to Counsel

This state’s courts have yet to clearly state whether parents must make a knowing and intelligent waiver of their right to counsel equal to the standards found in criminal law cases. In re Welfare of Kevin L., 45 Wn. App. 489, 495, 726 P.2d 479 (1986) (McInturff, J., concurring).³ RCW 13.34.090(2) expressly requires appointment of counsel “[u]nless waived in court.” Thus, unlike federal constitutional law,⁴ Washington presumes that indigent parents in dependency and termination cases “shall be provided” counsel at public expense.

Moreover, it requires that counsel shall be provided to an indigent parent whenever “the child’s parent, guardian, or legal custodian ... (a) has appeared in the proceeding or requested the court to appoint counsel. .. .” RCW 13.34.090(2) (emphasis added). The parent’s appearance triggers the court’s duty to provide counsel; no request for appointment of counsel is required.

Because RCW 13.34.090 mandates appointment of counsel when the child’s indigent parent has appeared, we hold that a waiver of the right to counsel in dependency and termination proceedings must be expressed on the record and knowingly and voluntarily made. Because the statute presumes the appointment of counsel, this standard is similar to the waiver of counsel applicable in criminal proceedings. The due process right to counsel in criminal preadjudicatory proceedings differs slightly from the Sixth Amendment right to counsel. But because the statutory right to counsel at issue here requires appointment of counsel absent a waiver in court, the evidence of waiver required to be on the record is similar. When an indigent parent appears for a dependency or termination proceeding, a waiver of his statutory right to counsel at public expense must appear on the court record.

Waiver of Right to Counsel

This court has identified three ways a criminal defendant may waive his or her right to counsel. A defendant may (1) voluntarily relinquish the right, (2) waive it by conduct, or (3) forfeit it through “extremely dilatory conduct.” City of Tacoma v. Bishop, 82 Wn. App. 850, 858-59, 920 P.2d 214 (1996) (citing United States v. Goldberg, 67 F.3d 1092, 1099-1102 (3d Cir. 1995)). These guide our review of a parent’s waiver of the statutory right to counsel under RCW 13.34.090.

Relinquishment is “usually indicated by an affirmative, verbal request.” Bishop, 82 Wn. App. at 858. For the request to be valid, the court must ensure that the defendant “is aware of the risks of self-representation. .. .” Bishop, 82 Wn. App. at 858. Here, C.E. adamantly sought substitute counsel, and the court did not advise him of the risks of self-representation. Thus, he did not waive his right to counsel by relinquishment.

If a defendant engages in dilatory tactics or hinders a proceeding, a court may find that the defendant waived his right to counsel by conduct. Bishop, 82 Wn. App. at 859.

In In re Dependency of A.G., 93 Wn. App. 268, 278, 968 P.2d 424 (1998), the court acknowledged the mother’s right to counsel at the dependency and termination hearings, but the court found that an order allowing counsel to withdraw at the beginning of trial did not violate the mother’s due process rights because the mother’s inaction was the cause. She had made no efforts to appear, her whereabouts were unknown, she knew when and where the termination proceeding was being held, and she did not appear at the trial. The court allowed counsel to withdraw because he did not know where his client was or how his client wished to proceed. A.G., 93 Wn. App. at 277-78. The court reasoned that appointed counsel “could not effectively or ethically represent her.” A.G., 93 Wn. App. at 278.

Other jurisdictions have also addressed whether a parent waived his or her right to appointed counsel. See In re Interest of Angela R., 212 Cal. App. 3d 257, 260 Cal. Rptr. 612 (1989) (failure to appear was waiver); In re Interest of Bobby Jo S., 10 Conn. App. 36, 521 A.2d 219 (1987) (failure to appear was waiver); In re Marriage of Taylor v. Scott, 570 N.E.2d 1333 (Ind. Ct. App. 1991) (failure to inform father of his statutory right to counsel required reversal because father did not knowingly, intelligently, and voluntarily waive his right to counsel even though he had three attorneys throughout process); Keen v. Marion County Dep’t of Pub. Welfare, 523 N.E.2d 452 (Ind. Ct. App. 1988) (verbal and written advisements of right to counsel and mother’s actions indicated a knowing, intelligent, voluntary waiver of right to counsel; court declined to apply criminal law standard); In re Adoption of Olivia, 53 Mass. App. Ct. 670, 761 N.E.2d 536 (court properly denied father’s request for removal of appointed counsel and father waived his right to counsel when he elected to represent himself; father had burden to show by a preponderance of the evidence that his waiver was invalid), review denied, 436 Mass. 1102, 766 N.E.2d 511 (2002); In re Adoption of Holly, 432 Mass. 680, 738 N.E.2d 1115 (2000) (failure to appear was waiver); In re Cobb, 130 Mich. App. 598, 344 N.W.2d 12 (1983) (following valid waiver of right to counsel, mother’s request for counsel on day of trial entitled her to counsel because mother showed a legitimate reason for the change and that it would not result in an unwarranted disruption of the proceedings); K.D.G.L.B.P. v. Hinds County Dep’t of Human Servs., 771 So. 2d 907 (Miss. 2000) (failure to make timely request for counsel waives statutory right); In re Interest of B_M_ P_, 704 S.W.2d 237 (Mo. Ct. App. 1986) (request for counsel on day of trial too late to trigger statutory right to counsel); In re Interest of Baby Boy Myers, 58 Or. App. 622, 650 P.2d 113 (1982) (father sufficiently waived his right to counsel when he was informed of that right, was encouraged to obtain or allow the appointment of counsel, and his responses indicated that he understood those rights); In re Interest of KMM, 957 P.2d 296 (Wyo. 1998) (failure to file motion for appointed counsel was a waiver of father’s rights under the federal and state constitutions).

The record is silent as to how C.E.’s conduct led Backlund to withdraw. Even assuming that C.E.’s conduct caused Backlund to withdraw, and that this conduct was a dilatory tactic or an attempt to hinder the termination proceeding, the record does not show that the court warned C.E. of the consequences of not reforming his conduct. See Bishop, 82 Wn. App. at 859.

The trial court noted “that the Court Commissioner has previously ruled that no new counsel would be appointed in the dependency proceedings.” RP (May 31, 2001) at 12. But there is no record that, in making this ruling, the court commissioner warned C.E. of the consequences of his actions or of the dangers of self-representation. Further, the court properly ruled at the outset that the dependency proceeding and the termination proceeding were separate proceedings. But the trial court failed to indicate what circumstances warranted a change in its earlier decision to disregard the commissioner’s earlier ruling refusing to appoint counsel. The record does not establish that the court made C.E. aware of the risks and disadvantages of self-representation. Moreover, the record does establish that before discussing the matter with attorney Backlund, the trial court indicated that a new attorney would be appointed:

THE COURT: Then, [C.E.], my inquiry to you right now is are you joining in the request that new counsel represent you?

[C.E.] Yes, I am.

RP (May 31, 2001) at 10. C.E. did not waive his right to counsel by conduct.

In limited circumstances, a defendant may forfeit his right to counsel, irrespective of his knowledge of the consequences of his conduct and his intent to have professional representation. “ ‘[F] orfeiture’ lies at the opposite end of the spectrum” from relinquishment because a defendant does not need to make the waiver knowingly. Bishop, 82 Wn. App. at 858-59. Consequently, a defendant’s conduct resulting in forfeiture must be more severe than conduct sufficient to warrant waiver by conduct. A defendant’s conduct must be “extremely dilatory” to result in forfeiture. Bishop, 82 Wn. App. at 859. For example, “a defendant who is abusive toward his attorney may forfeit his right to counsel.” United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995).

The record does not set out C.E.’s conduct during the dependency or before the termination hearing. Thus, we cannot determine whether it was “extremely dilatory.” While the dependency orders and review hearing orders reveal that two prior attorneys (Vey and Geringer) represented C.E. at these proceedings, there is no clear indication in the record why these attorneys withdrew from representation. Nor does the record indicate why the court commissioner refused to appoint counsel to represent C.E. at the final three review hearings. The record does reveal that C.E. did not ask the court to appoint counsel until the original date of the termination hearing. Consequently, the hearing was delayed 90 days. But, on this record, this behavior alone does not establish forfeiture. See State v. Johnson, 33 Wn. App. 15, 23-25, 651 P.2d 247 (1982) (record illustrates continuing pattern of dilatory conduct), review denied, 99 Wn.2d 1001 (1983).

Similarly, the record does not indicate whether C.E. engaged in conduct that prompted his counsel to move to withdraw on May 31. Although the court ruled that C.E. had rendered Backlund’s representation unreasonably difficult, the court did not elaborate further on the reasons for Backlund’s motion to withdraw. Without more information in the record, this court is unable to determine that C.E.’s conduct rose to a level justifying forfeiture of his right to counsel. See RCW 13.34.090(2) (unless waived in court, counsel shall be provided to the child’s indigent parent if such person has appeared in the proceeding); Bishop, 82 Wn. App. at 860 (although defendant appeared three times without an attorney after arraignment, having failed to contact the Department of Assigned Counsel to obtain counsel, defendant’s inaction held not to constitute forfeiture of right to counsel).

The record does not support a determination that C.E. waived his right to counsel in the termination proceeding through relinquishment, conduct, or forfeiture. Therefore RCW 13.34.090(2) required the court to appoint new counsel after granting Backlund’s motion to withdraw. In light of the violation of C.E.’s statutory right to appointed counsel, we do not address the possibility of a parallel constitutional right. Wash. State Coalition for the Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 932, 949 P.2d 1291 (1997) (the court will not decide an issue on constitutional grounds when that issue can be resolved on statutory or nonconstitutional grounds).

We reverse the orders terminating C.E.’s parental rights as to G.E., N.E., and T.E. We remand to the superior court for the appointment of new counsel and for a new termination hearing.

Morgan, J., concurs.

1 Because several counsel were involved in this matter, we refer to C.E.’s appointed counsel by name for purposes of clarity.

2 In Washington, parents may also have a constitutional right to appointed counsel in proceedings that may lead to termination of their parental rights. In In re Welfare of Luscier, 84 Wn.2d 135, 524 P.2d 906 (1974), our Supreme Court considered the parent’s right to counsel in a permanent child deprivation proceeding and stated that “the parent’s right to counsel in this matter is mandated by the constitutional guaranties of due process under the fourteenth amendment to the United States Constitution and article [I], section 3 of the Washington Constitution.” 84 Wn.2d at 138. See also In re Welfare ofMyricks, 85 Wn.2d 252, 255, 533 P.2d 841 (1975). But seven years later, in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), the United States Supreme Court declared that the federal constitution provided an indigent parent with an absolute right to counsel only when faced with the deprivation of liberty, and employed a presumption against the right of a parent to appointed counsel in a parental termination proceeding. The Court adopted the standard from Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), instructing the trial court to decide whether due process calls for the appointment of counsel using the Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), factors on a case-by-case basis, subject to appellate review.

In 1995, after Lassiter, our Supreme Court addressed whether the legislative mandate that counsel be available at “all stages of a proceeding” included an appeal. In a footnote, the court observed:

The right to counsel examined here is grounded in statute. RCW 13.34 (dependency cases); RCW 71.09 (sexually violent predator act). We, therefore, find it unnecessary to engage in an analysis of any parallel constitutional right. Whether litigants involved in these kinds of actions also would have a constitutional right to counsel is not before us. We note, however, that this court has determined that an indigent parent in a dependency action has a constitutional right to counsel at trial at public expense. In re Myricks, 85 Wn.2d 252, 255, 533 P.2d 841 (1975); but see Lassiter v. Department of Social Servs., 452 U.S. 18, 31, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981)....

Grove, 127 Wn.2d at 229 n.6 (emphasis added).

The Alaska Supreme Court, interpreting article one, section seven of the Alaska Constitution, a provision identical to article one, section three of the Washington Constitution, held that its state constitution provided a right to effective assistance of counsel in termination proceedings. V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (no person shall be deprived of life, liberty, or property without due process of law).

3 Although the court did not address the question of waiver of counsel, Judge McInturff raised the issue stating, “should either party seek further review, I would urge that the Supreme Court address [the knowing and intelligent waiver of the right to an attorney].” Kevin L., 45 Wn. App. at 494 (McInturff, J., concurring). Neither party sought further review.

4 See note 2, supra.