In re Parental Rights to M. I.-S.

• Court: Washington Court of Appeals
• Writing for the Court: SIDDOWAY, J.
• Decision Date: 08 November 2016
• Docket Number: c/w No. 33925-4-III,No. 33924-6-III,c/w No. 33926-2-III,33924-6-III
• Citation: In re Parental Rights to M. I.-S., c/w No. 33925-4-III, c/w No. 33926-2-III, No. 33924-6-III (Wash. App. Nov 08, 2016)
• Parties: In the Matter of the Parental Rights to M. I.-S., A.I.-S., C.S., minor children.

In the Matter of the Parental Rights to M. I.-S., A.I.-S., C.S., minor children.

No. 33924-6-III

c/w No. 33925-4-III

c/w No. 33926-2-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

November 8, 2016

UNPUBLISHED OPINION

SIDDOWAY, J. — After allowing two of K.I.'s attorneys to withdraw before a termination trial, the trial court refused to appoint K.I. another attorney. K.I. proceeded to trial pro se, at the end of which the trial court terminated her parental rights to her three children. K.I. appeals, arguing the trial court violated her right to counsel when it refused to appoint her an attorney at trial. Because K.I. did not waive or forfeit her right to counsel, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

K.I.'s¹ parental rights to three children are at issue in this appeal.² The Department of Social and Health Services (Department) received three referrals about the family between May 2010 and June 2012. The referrals generally reported that the parents were abusing prescription medication, marijuana, and methamphetamine, that thehome was dirty, and the children were being neglected. Following an investigation, the children were removed and found dependent on November 13, 2012.

Nearly two years later, on October 8, 2014, the Department filed for termination of K.I.'s and the father's parental rights as to all three children.³ Attorney Diana Anderson was initially appointed to represent K.I. in the termination proceedings. However, as part of reassignment of caseloads, on October 14, 2014, the trial court appointed Craig Matheson as counsel for K.I. The record does not reveal that K.I. had communication problems with Mr. Matheson.

Trial was initially scheduled to begin on March 11, 2015. However, at some point before the scheduled March 9 pretrial status hearing, counsel for K.I. filed a motion to continue the trial so K.I. could enter inpatient treatment. At the pretrial hearing, Mr. Matheson explained he no longer sought a continuance for K.I. to attend inpatient treatment, but rather, sought additional time to contact witnesses and deal with potential issues under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963. Ultimately, the trial court granted the motion to continue based on the illness of the attorney for the children's father.

On April 1, after the Honorable Carrie Runge was pre-assigned as the judge on the case, trial was set to begin August 3, 2015.

A month later, on May 4, the Department filed a motion for partial summary judgment because it determined the children did not qualify as "Indian Children" under ICWA. Clerk's Papers (CP) at 311. In June, a guardian ad litem (GAL) was appointed to represent the children's interests under ICWA. Also in June, Mr. Matheson decided not to renew his contract with the State and transferred the case back to Ms. Anderson, to be effective July 1. Due to the new GAL and attorney appointments, on June 17 the trial court rescheduled the start of trial for October 19, 2015.

On July 20, 2015, less than three weeks after being appointed, Ms. Anderson moved to withdraw as K.I.'s counsel at a hearing on the grandmother's motion to intervene. The basis for Ms. Anderson's motion was that K.I. had not remained in contact with her and had informed others that Ms. Anderson was not her attorney:

On July 8th, I received a telephone call from the social worker on this case who was attempting to set up a Shared Planning meeting at the request of [K.I]. She was calling to find out who [K.I.'s] attorney is, or would be, since [K.I.] had informed her that I was "fired." I immediately had my parent advocate, Cathy Metz, try to locate and/or contact [K.I.] to set up a meeting since I had not heard from her since I officially took over the case. Ms. Metz finally managed contact through text messaging and [K.I.] confirmed her intent to attend a meeting with me on Friday, July 10th at 10:30 [a.m.] I remained at the meeting location for at least 45 minutes and [K.I.] failed to show[.]

Today I received a phone call from [K.I.'s] mother, . . . [who] informed both myself and Ms[.] Metz (in separate phone calls) that she had talked with [K.I.] over the weekend and that [K.I.] unequivocally stated that I [Diana Anderson] am ["]no longer her attorney[.]"

I have had no other contact, directly or indirectly, with [K.I.] since my re-appointment effective July 1, 2015[.] I cannot represent a client thatrefuses to meet or otherwise communicate with me and apparently does not want me to represent her in any event.

CP at 1107-08 (tenth alteration in original).

At the hearing on the motion, the trial court asked K.I. whether she wanted Ms. Anderson to continue to represent her:

THE COURT: So, do you want Ms. Anderson as your attorney or are you wanting her to withdraw and you be appointed a new attorney?

THE RESPONDENT: I would like another attorney, please.

THE COURT: Okay. Well, you might think about that. If you want Ms. Anderson—you don't want Ms. Anderson to be your attorney; is that correct?

THE RESPONDENT: Correct.

THE COURT: And would you like her dismissed right now?

THE RESPONDENT: I don't think—yes.

THE COURT: All right. Well, I think you can be dismissed.

Report of Proceedings (RP) (July 21, 2015) at 6-7. After allowing Ms. Anderson to withdraw, the trial court proceeded with the hearing on the motion to intervene without appointing another attorney:

But we will proceed with the hearing today, and I am not going to assign you another attorney, at least not until I have some type of—you have been through how many attorneys? Ms. Anderson, Mr. Matheson, now Ms. Anderson again. I don't know why you're asking for another attorney.

Id. at 7. Ms. Anderson then clarified that though she had initially been appointed to represent K.I., the case had been transferred to Mr. Matheson as part of reassignment of caseloads. In response, the court stated:

Well, for purposes of today's hearing I won't assign an attorney. We'll see who your new attorney may or may not be when that paperwork's—the paperwork gets wrapped up.

Id. at 8. The court also advised K.I. that it would need a letter from her explaining why she needed a new attorney. At the end of the hearing, K.I. was arrested and taken to the Benton County jail on an outstanding warrant.

At the next hearing, which took place nine days later on July 30, 2015, the trial court noted K.I. had not submitted the letter explaining why she needed a new attorney, but allowed her to make an oral motion for an attorney. K.I. explained:

Yeah. Um, my—my last lawyer, I just feel like wasn't representing me. She told me that it was too late to get better, and that you know, that I needed to sign this open adoption agreement. And I was . . . in here last time, and I wasn't in no state of mind to—to sign something like that. And I had to get out and revoke it because I—when I got out, I thought no, what the heck; that's not right, you know.

And, um, so I just feel like I wasn't being represented to the fullest. And I feel like that because I had her before, um, you know, there's a lot of history and everything. And I don't feel like she would be representing me to the fullest.

RP (July 30, 2015) at 110. The trial court explained it was the attorney's duty to advise K.I. and that even if the attorney communicated difficult information it did not mean she was not fully representing K.I. Nevertheless, the court agreed to appoint another attorney. K.I. requested tribal counsel due to her Native American heritage, but the trial court declined:

Uh, at this, uh, late point, not having heard any of the substantive issues in this case, uh, we are here in state dependency court. This case has beenpending in state dependency court since 2014. So we'll follow our normal procedures, and I'll ask for the next counsel in the lineup. Um, you don't get to choose your lawyers. Certainly, if you wish to hire your own lawyer, you can do that and hire any lawyer that you wish. But we'll follow the standard procedures.

Id. at 111. Accordingly, the court appointed Attorney Adrienne Farabee to represent K.I. The court instructed K.I. to contact Ms. Farabee, but also advised her that she had the right to contact her tribe about obtaining tribal counsel. The order of appointment contained language about the necessity of contacting the appointed attorney immediately.⁴

On August 31, 2015, at a hearing on several motions, Ms. Farabee moved to withdraw as K.I.'s counsel and provided K.I. a copy of the motion to withdraw. Ms. Farabee explained the basis for her withdrawal was lack of contact with K.I.:

I currently represent mother. I have not had any contact with her since I was appointed.

My office received a phone call from her, I think shortly after I was appointed, from the jail. She indicated that she would call once she got out to give us her updated contact information.

We did not receive a call. We received her phone number from the Department. I tried to call the number multiple times and was informed that she had given that phone to someone else. So I have not had any contact with her.

Based upon that, I am asking to be withdraw[n] from all three cases.

RP (Aug. 31, 2015) at 4. The trial court granted Ms. Farabee's motion to withdraw. K.I. was not present at the hearing.

Six weeks later, at the October 16, 2015 readiness hearing, K.I. explained the difficulty she was having retaining counsel:

I did contact the tribe and I'm just waiting back on them right now. They—they—I can't remember the person's name—but I got a hold of the—Chief Two Feathers. He's part of the [American Indian Movement], which my great uncle was in, Leonard Pelter, and I just been—they're supposed to send me something stating whether or not they wanted to come and support—or, like—because I—at this point I don't have an attorney right now, either.

I've been trying to look for one to hire and it's all too close to trial and nobody was really, you know, wanting to—like they say, you know,

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