In re V.R.R.

• Court: Washington Court of Appeals
• Writing for the Court: Schindler
• Citation: In re V.R.R., 141 P.3d 85, 134 Wn. App. 573 (Wash. App. 2006)
• Decision Date: 14 August 2006
• Docket Number: No. 55954-1-I.
• Parties: In re the Dependency of V.R.R. and M.V.H.R., Amos Ramsey, Appellant, v. Department of Social and Health Services, Respondent.

141 P.3d 85

134 Wn. App. 573

In re the Dependency of V.R.R. and M.V.H.R., Amos Ramsey, Appellant, v. Department of Social and Health Services, Respondent.

No. 55954-1-I.

Court of Appeals of Washington, Division 1.

August 14, 2006.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Wendy K. Bohlke, Matthew Daheim, Bellingham, WA, for Respondent.

SCHINDLER, A.C.J.

¶ 1 The Department of Social and Health Services (DSHS) filed a petition to terminate Amos Ramsey's parental rights to his two minor children, V.R.R. and M.V.H.R. An attorney was appointed to represent Ramsey in the termination proceedings the day before the trial. DSHS agreed to a continuance, but when Ramsey did not appear on the day of trial, DSHS opposed the request for a continuance. The trial court ruled Ramsey failed to timely request appointment of counsel and denied the attorney's motion to continue. Based on the testimony of the DSHS social worker and the court records, the trial court terminated Ramsey's parental rights to his two children. Ramsey contends the court's decision to deny the motion to continue violated his due process right to effective assistance of counsel and is not supported by the record. We agree and reverse and remand for a new trial.

FACTS

¶ 2 Amos Ramsey and Sarah Heath are the parents of V.R.R. and M.V.H.R.¹ V.R.R. was born on December 25, 1998, and M.V.H.R. was born on April 25, 2001. On June 19, 2002, DSHS filed a dependency petition for V.R.R. and M.V.H.R. The petition alleged no parent was capable of adequately caring for the children and there was a danger of substantial harm to the children. In the petition, DSHS describes in detail concerns regarding the father's mental health and the mother's mental health, as well as allegations concerning the father's use of alcohol and cocaine, the mother's use of methamphetamine, and domestic violence between the mother and father.

¶ 3 James Nelson was appointed to represent Ramsey in the dependency proceedings. Neither Ramsey nor Heath contested the allegations in the dependency petition. On October 10, 2002, an agreed order of dependency was entered, placing the children with relatives. The dependency disposition order required Ramsey and Heath to each obtain mental health and substance abuse evaluations participate in recommended treatment programs, and attend parenting classes. The order also required Ramsey and Heath to maintain a clean and sober lifestyle, and obtain a suitable and stable residence.

¶ 4 A number of dependency review hearings were held between November 2002 and July 2004. Nelson attended the review hearings on Ramsey's behalf. Ramsey also attended several hearings. By July 2004, Ramsey had completed a substance abuse evaluation and a psychosexual evaluation but did not follow the treatment recommendations. Ramsey also did not follow the mental health recommendations, did not participate in parenting classes, did not visit his children, and did not have a suitable and stable residence.

¶ 5 On July 9, 2004, DSHS filed a "Petition for Termination of Parent-Child Relationship" (Petition to Terminate). In the Petition to Terminate, DSHS alleged Ramsey and Heath failed to successfully complete court-ordered services. DSHS also alleged Ramsey missed inpatient treatment appointments, psychosexual evaluation appointments, and visits with the children. In addition, the petition alleged Ramsey did not maintain a clear and sober lifestyle or a stable residence. DSHS sought termination of the parental rights of Ramsey and Heath because the nature and extent of the parental deficiencies made it unlikely the circumstances would change in the near future.

¶ 6 After unsuccessfully attempting to personally serve Ramsey, DSHS served him by certified mail at his last known address in Everett, with the "Notice & Summons/Order to Appear for Termination of Parent-Child Relationship" (Notice to Appear) and the Petition to Terminate. The Declaration of Service states that the Notice to Appear and the Petition to Terminate were mailed to Ramsey at his address in Everett on July 20. The receipt attached to the Declaration of Service indicates the Notice to Appear and the Petition to Terminate were received on August 3.

¶ 7 The Notice to Appear informed Ramsey that DSHS filed a petition to terminate his parental rights, that Ramsey must take steps to protect his rights, and that Ramsey must appear at an August 12, 2004, termination hearing.

YOU ARE NOTIFIED that a Petition for Termination of Parental Rights has been filed against you. You have important legal rights and you must take steps to protect your interests. This petition can result in permanent loss of your parental rights.

According to the Notice to Appear, the purpose of the preliminary termination hearing on August 12 was to address and resolve undisputed facts. The Notice to Appear also stated that if Ramsey did not appear on August 12, the court could enter an order permanently terminating his parental rights. The address and phone number for the Office of Assigned Counsel is provided in the Notice to Appear and advised Ramsey that:

You have the right to have a lawyer represent you at the hearing . . . If you cannot afford a lawyer, the court will appoint one to represent you. To get a court appointed lawyer you must contact the Office of Assigned Counsel.

¶ 8 Ramsey, Heath, Heath's attorney, the guardian ad litem (GAL), the DSHS caseworker, and the DSHS attorney attended the August 12 hearing. At the conclusion of the hearing, the court commissioner entered an "Order on Preliminary Termination Hearing." The Order verifies proof of service for the Petition to Terminate and finds a termination trial is necessary. The court clerk minutes for the August 12 hearing also state, "[f]ather needs to obtain counsel."

¶ 9 On October 25, a "Notice of Non-Jury Trial Date" was sent to Ramsey at the same address previously used to mail the Notice to Appear and the Petition to Terminate. The Notice of Non-Jury Trial Date states that a two-day trial on the termination of parental rights to V.R.R. and M.V.H.R. was scheduled to begin at 9:30 a.m. on Tuesday, January 25, 2005.

¶ 10 On December 27, DSHS filed a "Notice of Intent to Admit Documents" (Notice to Admit) for the termination trial. The three-page Notice to Admit identifies a number of documents related to Ramsey, including a January 18, 1996, psychiatric evaluation October 2002 progress notes from Compass Health; a March 27, 2003, report from Community Mental Health Services; a November 26, 2003, mental health evaluation from Scott Zankman, M.A.; 2002 documents from Northwest Treatment and Skagit Recovery Center; June 9, 2003, and May 9, 2004, toxicology reports; and criminal history from the Washington State Patrol.

¶ 11 Ramsey attended the dependency review hearing scheduled for the Thursday before the January 25 termination trial. At the hearing, DSHS gave Ramsey a bus ticket from Everett to the Skagit County courthouse for the termination trial scheduled the following Monday.

¶ 12 James Nelson was appointed to represent Ramsey in the termination proceedings the day before the trial. Nelson immediately contacted the DSHS attorney about the necessity of a continuance to prepare and DSHS agreed to a continuance of the termination trial.

¶ 13 Ramsey missed the bus and was not present at the termination trial on January 25, 2005. Nelson explained that he was unprepared and not able to effectively represent Ramsey without a continuance. Nelson also told the court he anticipated DSHS would present testimony from either a psychologist or psychiatrist, and Ramsey needed the opportunity to obtain an independent evaluation. Because Ramsey was not present, DSHS changed its position and opposed continuing the trial. According to DSHS, its previous agreement to continue the trial was based on the understanding that Ramsey would be present "to have negotiations, see where we are." DSHS asked the court to enter an order of default against Ramsey. The GAL opposed a continuance because Nelson represented the father in the dependency proceedings, the dependency had been pending for at least three years, and the children needed resolution.

¶ 14 The trial court denied Nelson's request to continue the termination trial because Ramsey was not present and Ramsey did not timely obtain appointment of counsel.² The court also denied DSHS's request for an order of default.

¶ 15 The only witness who testified at the trial was the DSHS social worker assigned to the case for the past ten months. The DSHS attorney asked the social worker leading questions to establish the statutory elements for termination under RCW 13.34.180(1) and introduced dependency review orders as an exhibit.³ Nelson reiterated his objection to proceeding with the trial and his inability to effectively participate or represent Ramsey. Nelson did not cross examine the social worker or otherwise participate in the trial.

¶ 16 On February 3, 2005, the court entered findings of fact, conclusions of law, and an order permanently terminating Ramsey's parental rights to his two children, V.R.R. and M.V.H.R. Ramsey appeals.⁴

ANALYSIS

Forfeiture of Right to Counsel

¶ 17 Ramsey contends the trial court's decision to deny his attorney's request to continue the termination trial violated his right to effective assistance of counsel. DSHS concedes Ramsey has the right to effective assistance of counsel but claims he forfeited that right by not timely seeking appointment of counsel and failing to appear at trial.

¶ 18 We review a trial court's decision to deny a continuance for manifest abuse of discretion. City of Tacoma v. Bishop, 82 Wash.App. 850, 861, 920 P.2d 214 (1996). A trial court abuses its discretion when it exercises that discretion based on untenable grounds or reasons. State ex rel Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). In deciding a motion to continue, ...