In re the Dependency of E.P.

¶1 By statute derived from due process guaranties, indigent parents have the right to counsel in termination proceedings. RCW 13.34.090(2); In re Welfare of J.M., 130 Wn. App. 912, 921, 125 P.3d 245 (2005). That right, however, may be forfeited. In re Welfare of G.E., 116 Wn. App. 326, 334, 65 P.3d 1219 (2003). In the circumstances here, R.P. forfeited her right to counsel. We accordingly affirm the termination of her parental rights.

Kato, J.

¶2 While incarcerated, Ms. P. gave birth to E.P. on July 12, 2004. The Department of Social and Health Services (DSHS) filed a dependency action. On July 14, a shelter care hearing was held, where the court told Ms. P. to stay involved in the legal process and to give notification of address changes so she could be contacted. At her request, the court appointed counsel, Anthony Zinman, and advised her of the right to notice of all hearings as well as the right to present evidence. As of September 8, when a shelter care review was held, she was still represented by Mr. Zinman.

¶3 On September 15, E.P. was declared dependent. Some time before January 12, 2005, when a dependency review hearing was held, Mr. Zinman had apparently withdrawn as counsel for Ms. P. and N. Smith Hagopian, who also represented Ms. P.’s husband in the proceedings, had been appointed as her new lawyer. At the January 12 hearing, Mr. Hagopian asked to withdraw as counsel for both because of lack of contact. On January 4, 2005, he had mailed a notice of intent to withdraw as counsel for Ms. P. and her husband, effective January 14, 2005. Although initially allowing Mr. Hagopian to withdraw, the court reversed itself and kept him on as her counsel. The termination trial was set for March 30.

¶4 On February 23, counsel moved to postpone the termination hearing because Ms. P. had “resurfaced” even though he had lost contact with her over the past few weeks. Report of Proceedings (RP) (Feb. 23, 2005) at 5. It was his “sense ... that she will be very engaged just before the actual termination trial date, such that I will be asked by her to represent her interests at that hearing, in a zealous manner.” Id. The court denied the continuance. Mr. Hagopian then reiterated to the court he had lost contact with his client and asked to withdraw as counsel. The court also denied this request.

¶5 Ms. P. failed to appear for the March 30 termination trial. Counsel again sought to withdraw. In support, Mr. Hagopian advised the court that she had not communicated with him even though he had located her address and sent letters there, which were unreturned. He stated, “I have absolutely no idea what her position is relative to today, and am—thinking that my presence here would be a waste of time and potentially obstructionist. So I’m asking for opportunity and permission to withdraw.” RP (Mar. 30, 2005) at 14. Counsel was allowed to withdraw.

¶6 The court proceeded with the termination trial in Ms. P.’s absence and unrepresented by counsel. After taking testimony and reviewing the documentary evidence, the court terminated her parental rights. This appeal follows.

¶7 Ms. P. contends the court violated her due process right to counsel by allowing her lawyer to withdraw at the beginning of the termination trial. Parents have the statutory right to counsel in child dependency and termination of parental rights proceedings. RCW 13.34.090(2); G.E., 116 Wn. App. at 331-32. But the right may be waived. Id. at 334.

¶8 In reviewing whether a parent waived the statutory right to counsel under RCW 13.34.090, the court in G.E. was guided by the three ways a criminal defendant may waive the right. A parent may “(1) voluntarily relinquish the right, (2) waive it by conduct, or (3) forfeit it through ‘extremely dilatory conduct.’ ” 116 Wn. App. at 334 (quoting 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))).

¶9 The record does not show that Ms. P. voluntarily relinquished her right to counsel or waived it by conduct. The inquiry, then, is whether she forfeited the right. A parent can forfeit the right to counsel by extremely dilatory conduct. G.E., 116 Wn. App. at 334. Forfeiture can occur even if Ms. P. was not warned about the consequences of her actions. Bishop, 82 Wn. App. at 859.

¶10 In In re Dependency of A.G., 93 Wn. App. 268, 968 P.2d 424 (1998), the trial court allowed the mother’s counsel to withdraw at the beginning of the termination hearing and the mother’s parental rights were terminated in her absence. The A.G. court held that, because of her inaction, the mother’s due process rights were not violated. She made no effort to appear for hearings, including the termination trial, and her whereabouts were unknown. She had not been in contact with her lawyer or DSHS’s Division of Child and Family Services for many months before it filed the termination action. Due to the mother’s own inaction, the court noted the lawyer “could not effectively or ethically represent her through the termination trial.” Id. at 278.

¶11 Here, Ms. P. appeared at the shelter care hearing on July 14, 2004. She did not appear for shelter care review on August 11, but was apparently present for the review on September 8. She did not appear for the dependency review hearing on January 12,2005. On February 23, her lawyer sought a continuance of the termination trial date because Ms. P. had “resurfaced” and, even though he had lost contact with her over the past several weeks, his “sense” was that she would ask him to represent her in a zealous manner. RP (Feb. 23, 2005) at 5. But the record belies his belief and reflects Ms. P. did not communicate with him. Indeed, Mr. Hagopian represented to the court prior to the start of the termination trial that he had no idea what the mother’s position was relative to termination of her parental rights. As in A.G., because of her inaction, Ms. P.’s lawyer could not effectively or ethically represent her in the termination trial.

¶12 “[A] child’s right to a stable home cannot be put on hold interminably because a parent is absent from the courtroom and has failed to contact his or her attorney.” In re Dependency of C.R.B., 62 Wn. App. 608, 616, 814 P.2d 1197 (1991). Under the circumstances here, Ms. P.’s failure to act was extremely dilatory and sufficient to justify forfeiture of her right to counsel. See A.G., 93 Wn. App. at 278-80.

¶13 Ms. P. nevertheless contends the court should have appointed another lawyer for her after Mr. Hagopian withdrew. But she forfeited her right to counsel, so the court was not required to appoint a third lawyer.

¶14 She also claims the court erred by denying her motion for a continuance of the termination trial. Such decisions are within the court’s discretion and will not be disturbed absent abuse of that discretion. In re Schuoler, 106 Wn.2d 500, 723 P.2d 1103 (1986). On February 23, 2005, Ms. P.’s lawyer sought the continuance because he needed more time for the hearing than he originally thought the court had set aside. Advised to the contrary, her lawyer then argued that Ms. P. still needed the continuance so she could be more ready “in terms of services that she’s engaged in, before March 30th.” RP (Feb. 23, 2005) at 6. DSHS advised the court that she had not been engaged in services even though she said she was going to get involved. Id. at 7. Finding insufficient grounds to grant the continuance, the court denied her motion. The record reflects the court relied on tenable reasons for denying the continuance, so it did not abuse its discretion.

f 15 Ms. P. contends the court erred by holding the termination trial in her absence because the one-sided nature of the hearing made the risk of error unconscionably high. Moreover, she claims the court’s findings and conclusions do not support termination of her parental rights because she was not present and could not present evidence. Notice and an opportunity to be heard are the essential requisites of procedural due process. A.G., 93 Wn. App. at 278 (citing Burman v. State, 50 Wn. App. 433, 440, 749 P.2d 708, review denied, 110 Wn.2d 1029 (1988)). Among the elements the court analyzes in determining whether a procedure adequately protects due process rights is the risk of error. A.G., 93 Wn. App. at 278. In termination proceedings, the risk of error in a default proceeding that does not reach the merits of a case is a significant burden on the competing interests of the parent, the child, and the State. C.R.B., 62 Wn. App. 608.

¶16 Here, however, there was a meaningful hearing. The court took testimony, reviewed the documentary evidence, and made detailed findings on the substantive issues required to be proved by the State under RCW 13.34.180 and RCW 13.34.190. The record reflects the court considered the case on its merits and held the State to the requisite burden of proof on all issues. The risk of error was not unconscionably high. Ms. R had notice and chose not to appear. Her lawyer could not effectively represent her because he had no communication with her and no idea what her position was. The court’s findings are supported by the evidence and they in turn support its conclusions.

¶17 Affirmed.

Sweeney, C.J., concurs.