v. Spehar
| Decision Date | 12 December 2016 |
| Docket Number | No. 74002-4-I,74002-4-I |
| Court | Washington Court of Appeals |
| Parties | In re the Dependency of: M.B.S. (DOB: 04/07/06), Minor Child, STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. MARY SPEHAR, Appellant. |
UNPUBLISHED
Cox, J. — Mary Spehar appeals the termination of her parental rights to her son, M.B.S. The trial court did not abuse its discretion by denying her motion to appoint M.B.S. independent counsel. The court did not prematurely consider M.B.S.'s best interests in determining Spehar's fitness as a parent. And there was sufficient evidence to prove that continuation of the parent-child relationship diminished this child's prospects for early integration into a stable and permanent home. We affirm.
Mary Spehar gave birth to M.B.S. in April 2006 and cared for him on her own. Since then, M.B.S. has struggled with behavioral problems, including aggressive and uncontrolled outbursts, directed at himself and others. Therapists have diagnosed him with attention deficit hyperactivity disorder, oppositional defiant disorder, and autism spectrum disorder.
Concerned about her son, Spehar took him to a therapist in 2011 who spoke with her about parenting techniques and medication. The therapist saw M.B.S. intermittingly for two years, during which time M.B.S. exhibited some improvement.
But Spehar has issues of her own. Authorities reported seeing her threaten and yell at her son, and she seemed unable to maintain a hygienic and orderly home. She exhibited signs of paranoia and what would later be diagnosed as attention deficit hyperactivity disorder, bipolar disorder, obsessive-compulsive disorder, and polysubstance abuse.
The State removed M.B.S. from his mother's care on June 20, 2013. It commenced dependency proceedings less than a week later. The court granted the State's dependency petition and placed M.B.S. with his grandmother, Carolyn Spehar.
M.B.S.'s father relinquished his parental rights in September 2014.
The dependency order permitted Spehar to visit M.B.S. and attend his medical appointments. It also required that Spehar complete certain services, including mental health, family, and substance abuse counseling.
Spehar's compliance with these services was inconsistent. She participated in two substance abuse evaluations but did not participate in subsequent state-offered outpatient treatment for substance abuse. Instead, shehad "multiple relapses into substance use."1 She also failed to participate in mental health treatment, ensure that her medical prescriptions remained current, or maintain sufficient contact with family support workers. Her contact and visitation with M.B.S. were erratic.
One of her psychologists, Dr. Jason Prinster, initially predicted that M.B.S. could return to his mother's care in the near future. After Spehar's repeated failures to comply with court-ordered rehabilitative services, Dr. Prinster updated his opinion, advising that the prospect of reunion was "guarded to poor."2 He based this conclusion on the "mother's lack of consistent participation, if any, in his treatment recommendations."3
Spehar's designated mental health counselor, Dr. David Hall, noted that Spehar had proved unable to demonstrate either the "regular involvement in [M.B.S.'s] life or the emotional calmness" necessary to handle M.B.S.'s behavioral issues.4
Carolyn Spehar suffered a stroke in November that made her unable to care for M.B.S. alone. M.B.S. was briefly placed with her close friend, but the friend proved unable to deal with M.B.S.'s behavioral issues.
The State then placed M.B.S. at the Ruth Dykeman Children's Center (RDCC) in Burien. M.B.S.'s behavioral problems worsened at the RDCC,inspired by the bad example of his peers. While he improved for a time, he later regressed again after his mother, grandmother, and social worker visited for his birthday.
M.B.S. did not enjoy living at the RDCC and wanted to leave. A therapist from the RDCC later testified that M.B.S. told her that he could not be "disconnected from [his] family anymore" and that he did not "pull [his] hair when [he was] at home."5 M.B.S. also told staff that his grandmother's presence calmed him and that he wanted to live with her.
The State then sought to terminate Spehar's parental rights. Over the course of a five day trial, various witnesses, including Spehar, testified.
On the second day of trial, M.B.S.'s guardian ad litem testified that she was not required to report to the court what M.B.S. wanted. She said she was unsure about his wishes but had heard from others that he wanted to be with his mother or grandmother.
Shortly thereafter, Spehar moved orally to stay proceedings and appoint M.B.S. an attorney. The court declined to appoint counsel at that time but invited Spehar to submit further written argument and authority on the issue. Spehar did so. The court again denied the motion.
The court terminated the parent child relationship. Its rulings are set forth in its findings of facts, conclusions of law, and order.
Spehar appeals.
MOTION TO APPOINT COUNSEL
Spehar argues that the trial court improperly concluded that the Fourteenth Amendment of the United States Constitution did not require the appointment of counsel for M.B.S. We hold that the court did not abuse its discretion in denying the motion to appoint counsel for M.B.S.
We review for abuse of discretion the trial court's decision whether to appoint counsel for M.B.S. RCW 13.34.100(7)(a) provides that the trial court "may appoint" counsel under such circumstance. The legislature employed the word "may" to place this decision within the trial court's sound discretion.6 The trial court abuses its discretion when its "'decision is manifestly unreasonable or based upon untenable grounds.'"7
A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.8
Spehar's contrary argument that we should review de novo the trial court's decision is unpersuasive. She cites a dissent in Gourley v. Gourley, stating that de novo review was appropriate where a court's discretionary choice required consideration of constitutional due process.9 That is not a position that themajority adopted in that case. Likewise, we have found no other Washington case that departs from the abuse of discretion standard of review that is generally applicable to discretionary rulings.
Spehar later cites a Wyoming case that declared de novo the appropriate standard of review without meaningful analysis.10 Thus, that case does not persuade us to depart from the abuse of discretion standard.
In considering whether to appoint counsel for a child in a termination hearing, the trial court must conduct a three-part balancing test.11 The United States Supreme Court developed that test in Mathews v. Eldridge as the appropriate framework for measuring the necessary protections of procedural due process.12 That test requires that the court weigh three factors: (1) the private interests at stake in a given proceeding; (2) the government's interest; and (3) the risk that the extant procedures will lead to erroneous deprivations of a private right.13
The Washington supreme court recently applied the Mathews test to resolve whether the Fourteenth Amendment protects the right of children to counsel in termination hearings in In re Dependency of M.S.R.14
As to the first factor, the relevant private interests, the court concluded that children have a serious liberty interest at stake in proceedings to terminate parental rights.15 As to the second factor, the State's interest, the court recognized the State's "urgent interest in the welfare of the child" and in obtaining "an accurate and just decision."16
Turning to the last factor, the risk of erroneous deprivation, the court explained that the proper focus for consideration is the relevant "child's individual and likely unique circumstances."17 In looking to those circumstances, the court held that "whether there is a constitutionally significant risk of an erroneous deprivation of rights may also turn on whether there is someone in the case who is able to represent the child's interests or whose interests align with the child's."18
In answering that question, the court recognized that "the existing statutory scheme for termination proceedings" provides numerous procedural safeguards.19 These include "a full evidentiary trial before a superior court judge with discovery, motions practice, heightened burden of proof, and appellate review."20 Additionally, the trial court must appoint a guardian ad litem for eachchild who must advocate for the child's best interests and inform the court of any "views or positions expressed by the child on issues pending before the court."21
Yet the supreme court recognized that in certain circumstances, appointment of a guardian ad litem might be insufficient. In doing so, it took account of the argument posed by M.S.R.'s parent, Nyakat Luak, that a guardian ad litem's duty to convey the child's "expressed desires" did not equate to representation of those desires.22 Luak also argued that a well-intentioned guardian might seek to block a child's testimony based on the "misguided view that participation will be harmful" to the child.23 She argued that an attorney, by contrast, would advocate for the child's desires and could maintain confidential communications with the child to allow for the child's open disclosure of his "deepest secrets and concerns."24
The court recognized the force of Luak's argument but declined to find a universal right to counsel under such circumstance. Instead, it explained that "[i]ndeed, each child's circumstances will be different."25 Weighing the...
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