Welfare of Hall, In re

• Decision Date: 16 June 1983
• Docket Number: No. 49036-8,49036-8
• Citation: 99 Wn.2d 842,664 P.2d 1245
• Parties: In re the WELFARE OF Adrian T. HALL, a minor.
• Court: Washington Supreme Court

Page 842

99 Wn.2d 842

664 P.2d 1245

In re the WELFARE OF Adrian T. HALL, a minor.

No. 49036-8.

Supreme Court of Washington En Banc.

June 16, 1983.

Mary Opgenorth, Tacoma, for appellant.

Ken Eikenberry, Atty. Gen., Bryon L. Brown, Asst. Atty. Gen., Olympia, for respondent.

Luvern V. Rieke, Harry F. Reinert, University of Washington School of Law, Seattle, amici curiae.

UTTER, Justice.

This case presents the issue of whether and under what conditions appointed counsel in a child deprivation proceeding may withdraw from a frivolous appeal. We hold that, absent the client's consent, such withdrawal is never permitted and deny counsel's motion to withdraw in the present case. We also raise and consider two substantive issues sua sponte and, while not finding them frivolous, conclude there was no error in the present case.

The State instituted this action pursuant to RCW 13.34.180 to terminate the parent-child relationship of appellant, Clayton Hall, and his wife, Debra Hall, ¹ with their son, Adrian. At the time of the hearing, January 19, 1981, Adrian had been a dependent child for slightly more than 2 years and was living with foster parents in Pierce County. Mr. Hall was living at a work release facility in Bellingham, from which he was to be released in 8 months. Mr. Hall has never lived with Adrian, who is 4, and they have had only short visits.

Mr. Hall conceded that he and Adrian do not have a warm relationship and that it would take some time to develop one, but testified that he desired to make a sincere effort. Witnesses testified that Mr. Hall is an active, intelligent man capable of forming normal loving relationships. His probation officer testified that he was a "model resident" and was making "excellent progress" at work release where he was attending college full time and working half time. On the other hand, caseworkers testified that Mr. Hall lacked parenting skills. While they felt he could develop such skills, they were concerned that he had not followed their suggestions that he take courses or read books about parenting. All Mr. Hall had done was take one child psychology course, though there was no evidence that he had access to any further courses or any child development books. The caseworkers did not refer Mr. Hall to any specific books, courses, or counseling.

The caseworkers did arrange visitations between Mr. Hall and Adrian. In general, the visits which Mr. Hall made went well; however, he missed several appointments and was late for others due to transportation and work scheduling problems.

The caseworkers emphasized that it was very important to settle Adrian into a permanent home before he became much older. One caseworker also testified that it would be very difficult to place Adrian in an adoptive home once he became older and that she had no indication that either of his parents would be able to provide a home in the near future. Another caseworker believed that it would be quite difficult for Mr. Hall to alter his active and busy life to care for Adrian.

The trial court concluded that the State had carried its burden of proof (see RCW 13.34.190) and ordered termination of the parent-child relationship of Mr. Hall and Adrian. Mr. Hall then filed this appeal.

After reviewing the case Mr. Hall's attorney filed a brief citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and seeking to withdraw on the ground that the appeal was frivolous. Counsel made no attempt to mail a copy of her brief to Mr. Hall, however, and two attempts at service by the Court of Appeals failed because it did not have Mr. Hall's correct address. The case was certified to this court and after oral argument we requested additional briefing on one potentially meritorious issue. We were also able to finally serve Mr. Hall.

I

We deny counsel's motion to withdraw, for two reasons. First, the conditions for withdrawal of counsel enunciated in Anders are not satisfied here. Second, we deem it inadvisable to apply Anders to appeals in child deprivation proceedings and hold that appointed counsel may never withdraw from such an appeal, absent client consent.

Anders requires that four conditions be satisfied before withdrawal of appointed counsel in a criminal appeal will be permitted. First, counsel must submit a brief referring to anything in the record that might arguably support an appeal. Anders, at 744, 87 S.Ct. at 1400. Second, a copy of counsel's brief must be provided to the client. Anders, at 744, 87 S.Ct. at 1400. Third, the client must be given an opportunity to raise any points he or she chooses. Anders, at 744, 87 S.Ct. at 1400. Finally, the appellate court itself must examine the record and confirm counsel's contention that the appeal is truly frivolous. Anders, at 744, 87 S.Ct. at 1400. If any one of these conditions is not met, counsel's motion to withdraw must be denied. Anders, at 744, 87 S.Ct. at 1400.

These conditions do not appear to have been met in the present case. First, Mr. Hall was not properly served with a copy of counsel's brief. Such service, we emphasize, is primarily counsel's responsibility. While the appellate court should attempt to serve the client as well, counsel has the ultimate responsibility for assuring that an indigent client is made aware of events or showing good cause for failure to do so. The form of counsel's brief was also inadequate. Counsel seeking to withdraw should not merely set out the facts and then argue why they do not constitute meritorious grounds for an appeal, as counsel has done here, but should also outline arguments which might be made from the facts. Cf. State v. Allen, 75 Wash.2d 17, 17-18, 448 P.2d 332 (1968) (attorneys seeking to withdraw "have filed briefs and have, in the highest tradition of the profession, argued those assignments of error which they believed their clients would want to have presented and which, in their judgment, contained some arguable merit"). Argument as to why the appeal is frivolous, if included, should be set out in a clearly separate section of the brief.

In any event, we do not believe Anders is applicable to appointed counsel in child deprivation proceedings. The right of concern in Anders was the federal constitutional right to counsel in criminal cases. In contrast, the right involved in the present case is the right to counsel in child deprivation proceedings which, except in limited circumstances, finds its basis solely in state law. See In re Luscier, 84 Wash.2d 135, 138, 524 P.2d 906 (1974); RCW 13.34.090; compare Lassiter v. Department of Social Servs., 452 U.S. 18, 31, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640 (1981) (right to counsel in child deprivation proceedings guaranteed by federal constitution only in limited circumstances). Moreover, a criminal defendant, who must be at least competent to stand trial, will have not only the opportunity but at least some modicum of ability to present his or her own argument to the appellate court. In contrast, the respondent in a child deprivation proceeding may be entirely incompetent and entirely unable to raise potentially meritorious issues. In such circumstances, withdrawal of counsel should not be permitted.

We therefore hold that, absent client consent, withdrawal of counsel on appeal in a child deprivation proceeding will never be permitted. While our central concern is those clients who are incompetent, we believe that case-by-case competency hearings would be too cumbersome a process and find a blanket prohibition on withdrawal the preferable approach. While this may require counsel to argue some frivolous appeals, we believe this is a small price to pay for assuring that the rights of all parents are fully protected. We also note that pursuing such an appeal would not constitute unethical conduct. While CPR DR7-102(A) does generally prohibit an attorney from arguing a frivolous claim, CPR DR2-110(A) prohibits an attorney from withdrawing from a case without the court's permission where court rules require such permission. Where an appellate court refuses to allow appointed counsel to withdraw, arguing even a frivolous appeal does not violate CPR DR7-102(A).

II

Having denied counsel's motion to withdraw, we now consider two substantive issues which we believe are not entirely frivolous. To assure adequate representation of Mr. Hall, we have requested and received additional briefing in an adversary posture by counsel for both Mr. Hall and the State. Cf. Anders, 386 U.S. at 744, 87 S.Ct. at 1400 (court which denies motion of appellate counsel to withdraw "must, prior to decision, afford the indigent the assistance of counsel to argue the appeal").

A

One factor emphasized by the trial court was the effect continuance of the parent-child relationship would have on Adrian's adoptability. It expressly found that "continuation of the relationship [between Mr. Hall and Adrian] diminishes the prospects for integration of the child into a stable home via adoption, which [Adrian] is found to need." Clerk's Papers, at 6. Presumably the trial court relied upon this finding.

There is some split of authority in the Court of Appeals on the issue of whether a court may consider adoptability in deciding whether to terminate a parent-child relationship. In In re Akers, 22 Wash.App. 749, 592 P.2d 647 (1979), the court broadly stated : "Consideration of adoptability [i.e., the probability of adoption?] of deprived children should not be considered by a trial judge in a deprivation hearing." Akers, at 757, 592 P.2d 647. In In re Tarango, 23 Wash.App. 126, 595 P.2d 552 (1979), on the other hand, the court held that a court could consider the need for placement with adoptive parents. Tarango, at 130-31, 595 P.2d 552. See also In re Clark, 26 Wash.App. 832, 838, 611 P.2d 1343 (1980).

Whether the trial court considered the need for adoption, as permitted by Tarango, or the probability of adoption, as prohibited by Akers, or...