In re Welfare of GE

• Court: Washington Court of Appeals
• Writing for the Court: QUINN-BRINTNALL, J.
• Citation: In re Welfare of GE, 65 P.3d 1219, 116 Wash. App. 326 (Wash. App. 2003)
• Decision Date: 01 April 2003
• Docket Number: No. 27839-1-II, No. 27842-1-II, No. 27849-9-II.
• Parties: In re the WELFARE OF G.E., T.E., and N.E., Minor Children.

65 P.3d 1219

116 Wash. App. 326

In re the WELFARE OF G.E., T.E., and N.E., Minor Children.

Nos. 27839-1-II, 27842-1-II, 27849-9-II.

Court of Appeals of Washington, Division 2.

April 1, 2003.

Natalee Ruth Fillinger, Olympia, WA, for Respondent.

Peter B. Tiller, Attorney at Law, Centralia, WA, for Appellant.

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, "A new attorney will not be appointed by the court." Exhibit 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) (3/15/01) at 5. The court appointed Jodi Backland 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 (5/31/01) at 10.

The court conferred with Backlund off the record about her motion. Backlund only disclosed 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. Backlund, [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 (5/31/01) 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 Wash.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 Wash.App. 489, 495, 726 P.2d 479 (1986) (McInturff, J., specially concurring).³ RCW 13.34.090(2) expressly requires appointment of counsel "unless 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 parents' 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 pre-adjudicatory 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 TO RIGHT TO COUNS...