FILED
May 24, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Welfare of )
) No. 33339-6-111
)
F.M.O., )
)
) OPINION PUBLISHED
) IN PART
KORSMO, J. - The trial court terminated a mother's relationship with her son,
citing four deficiencies that prevented her from parenting the child. Since the mother was
given notice of only three of those deficiencies, we remand for the trial court to
reconsider whether termination of the parent-child relationship is appropriate considering
only the three deficiencies which the mother knew were at issue in the trial.
FACTS
When S.O. gave birth to her son, F.M.O., both mother and child tested positive for
methamphetamine. The Department of Social and Health Services (DSHS) immediately
took custody of the child and started dependency proceedings. Her noted parental
deficiencies included substance abuse as well as mental health and domestic violence
histories.
No. 33339-6-III
In the Welfare of FMO
Two years later a termination petition was filed. The petition referenced several
services offered to S.O., but did not expressly identify her deficiencies as a parent. The
father relinquished his rights to the child, while the mother's case proceeded to trial. The
assistant attorney general (AAG) representing DSHS began his closing argument by
focusing on three identified parental deficiencies that S.O. had refused to address-her
mental health problems, drug dependency, and a history of domestic viol~nce with the
child's father. Report of Proceedings (RP) at 232. Noting that the mother was currently
incarcerated in the county jail, the AAG turned to the then-newly enacted statutory factor
ofRCW 13.34.180(l)(t) addressing whether the incarcerated parent was capable of
maintaining a meaningful role in the child's life. He argued that because S.O. had no
prior relationship with the child and had never parented him, the current incarceration did
not alter the status quo. RP at 236-37. The AAG summed up his argument by stating
that the mother was an unfit parent and had not shown improvement since the child's
birth, commenting that "her circumstances are even worse with her current
incarceration." RP at 239.
Defense counsel's closing argument focused on S.O.'s poverty and her desire to
parent her son. Counsel referenced incarceration several times in remarks, primarily in
the context of explaining why the mother was unable to see the child since young
children did not visit the Okanogan County Jail. At the conclusion of counsel's remarks,
the trial judge asked about the status of the pending criminal case and was told it had not
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In the Welfare of FMO
been scheduled for trial since counsel had asked for an evaluation of her client pursuant
to RCW 10.77. 1 The court took the termination case under advisement and scheduled a
hearing three weeks later to render its judgment.
The trial court read its remarks into the record before S.O. The court determined
that S.O. was currently unfit to parent and granted the petition. In the course of its
remarks the court noted that S.O. 's recurring incarceration hampered her ability to find
employment and maintain housing. Written findings were prepared by the AAG and
ultimately adopted by the court. Critical to this appeal is a portion of finding of fact
2.13.1:
[S.O's] primary current deficiencies that prevent the child from being safely
placed with her are untreated mental illness, untreated substance abuse
issues, a history of domestic violence in her relationships and periods of
incarceration that inhibit her ability to parent.
Clerk's Papers at 31.
Counsel filed a notice of appeal on behalf of her client. S.O. filed a five page
handwritten "appeal" at the same time. A panel of this court heard oral argument.
ANALYSIS
S.O. presents two issues in this appeal. First, she contends she was not properly
notified of the parental deficiencies that were at issue in the trial. Second, she contends
1
"My concern in the criminal case based on criminal standards, things being very
different here, I have filed a motion for an evaluation under 10-RCW 10.77." RP at
244-45.
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No. 33339-6-III
In the Welfare of FMO
her trial counsel rendered ineffective assistance by failing to ask for appointment of a
guardian ad-litem due to her perceived incompetency. We address the two issues in the
order stated.
Initially, we note the general standards governing review of a parental termination
decision. The process largely is controlled by statute. Washington courts apply a two-
step process when deciding whether to terminate a parent-child relationship. In re
Welfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). "The first step focuses on
the adequacy of the parents" and requires DSHS to prove, by clear, cogent, and
convincing evidence, the six termination factors set forth in RCW 13.34.180(1). Id.
Clear, cogent, and convincing evidence means "highly probable." In re Welfare of
MR.H., 145 Wn. App. 10, 24, 188 P .3d 510 (2008). Due process also requires the trial
court find by clear, cogent, and convincing evidence that the parent is currently unfit. In
re A.B., 168 Wn.2d at 918. Where a trial court finds all of the elements of the statute by
clear, cogent, and convincing evidence, it implicitly finds the parent is unfit by the same
standard. In re Dependency of K.N.J, 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). If
DSHS meets its burden as to the six termination factors, "the trial court must find by a
preponderance of the evidence that termination is in the best interests of the child." In re
MR.H., 145 Wn. App. at 24. (citing RCW 13.34.190(2)). Only if the first step is satisfied
may the court reach the second step. A.B., 168 Wn.2d at 911.
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Notice ofAlleged Parenting Deficiencies
In her briefing, S.O. argues that only parental deficiencies alleged in the
termination petition can be the basis for severing the parent-child relationship. We
conclude that due process does not require specific allegations in the termination petition.
Nonetheless, we do agree that the record does not reflect that S.O. knew she needed to
address the issue of her recurring incarceration as a parental deficiency.
Due process is a flexible concept that may vary with the interests that are at stake,
but at its heart are the concepts of notice and the ability to be heard. Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S. Ct. 652, 94 L. Ed. 865 (1950).
Due process is violated if a parent is held accountable for a parenting deficiency about
which she was never notified. In re Dependency ofA.MM, 182 Wn. App. 776, 790, 332
P.3d 500 (2014).
Seeking to expand A.MM, S.O argues the termination petition must be the source
of notice of all parental deficiencies. A.MM does not support her argument. There a
mother faced a dependency proceeding, and subsequently a termination proceeding, due
to her substance abuse problem. Id. at 783. A social worker testified during the
termination trial that the mother was deficient because she lacked understanding of her
children's developmental needs. Id. at 784. Defense counsel attacked the testimony,
pointing out that no efforts had been made to offer services to address this deficiency,
thus rendering the State's case inadequate. Id. However, the trial court determined that
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No. 33339-6-111
In the Welfare of FMO
both the substance abuse problem and the mother's ignorance of "her children's
developmental needs constituted a parental deficiency." Id. at 792.
On appeal, this court reversed the termination order because the mother was not
notified that her knowledge concerning child development would be considered as a basis
for terminating her parental rights. Id. at 790. Concluding that due process required
notice of the basis for a termination proceeding, the court looked to the record and could
discern no notice to the mother. Id. at 791-92. In the course of its record review, this
court commented that neither the dependency ~or the termination petitions discussed the
issue, and "there is no evidence in the record that [mother] was ever informed that she
could lose her parental rights if she did not adequately familiarize herself with her
children's developmental needs." Id. at 792.
Thus, while the A.MM court looked at the two petitions, that court did not limit
itself to those documents. Indeed, if the termination petition needed to contain the
allegation, as S.O. argues, then the A.MM court should not even have looked to the
dependency petition for notice. However, it did look to both the dependency case and the
entire termination case record before concluding the mother had not been given notice of
the new parental deficiency that arose during trial testimony. A.MM does not support
S.O. 's argument that the termination petition must include each parental deficiency that
DSHS is seeking to prove.
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No. 33339-6-III
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Nonetheless, due process requires that DSHS provide notice to a parent before
terminating the parent's legal relationship with the child. Typically that action takes
place during the dependency process where evaluations determine the needs of the
children, the parent's ability to meet those needs, and what services can be provided to
assist the parent in meeting the children's needs. Only when the dependency fails to help
the parent overcome the deficiencies does the case proceed to a termination hearing.
Often the adequacy of the services offered, or the parent's response to the services, is the
primary question during the termination hearing.
Both sides need to know what deficiencies are at issue since the State has to prove
the deficiencies to make its case while the parent has to know what allegations to defend
against. But in most instances the termination is the endgame in lengthy proceedings
where the parties have wrestled over the needed services during the previous years and
there is no question what deficiencies are truly at issue. In most instances they have
already been the subject of repeated evaluations and earlier court proceedings. 2 Thus, it
serves only form instead of substance to rigidly require notice be provided in the
termination petition itself. Accordingly, we decline S.O.'s request to mandate that
2
As noted by the mother's counsel in A.MM, the State's failure to offer services
related to the deficiency it is seeking to prove will lead to rejection of the claim. This
gives DSHS great incentive to notify a parent of the perceived deficiency and address it;
there is no benefit to raising a new deficiency late in the proceedings.
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No. 33339-6-111
In the Welfare of FMO
parental deficiencies be specified in the termination petition. 3 Although notice must be
provided, it need not necessarily be provided in the termination petition. 4
Our rejection of this argument does not resolve the issue on appeal. S.O. correctly
contends that she was never notified her recurring incarceration was itself a parenting
deficiency that she needed to defend against. This is probably because the State never
sought to use it as a deficiency. 5 The topic of incarceration first came up at trial during
the argument of the parties when the fact of her incarceration was used to address a
statutory factor and to explain the lack of visitation. It was the trial judge, in his prepared
remarks, that included incarceration in the list of proven deficiencies. Those remarks
were then incorporated into the written findings, leaving no doubt that the court
considered incarceration as a deficiency rather than as a mere evidentiary fact. This was
error.
3
Washington is a notice pleading state and does not require a petitioner do more
than state "a short and plain statement" of the party's entitlement to relief along with a
request for appropriate judgment. CR 8(a). There are methods of challenging an
inadequate pleading. E.g., CR 12(b)(6); CR 12(c). A party also can always ask that a
pleading be made more definite. CR 12(e). All of these suggest that no special pleading
rule is needed for a termination petition.
4
We can envision instances where a new deficiency might develop after a petition
is filed and occur at a time when the petition could no longer be amended. No purpose
would be served in precluding the trial court from considering a new issue bearing on
parental fitness, provided that timely notice was given to the parent.
5
Query what type of services would be necessary for DSHS to provide if it had
sought to address a "recurring incarceration" parental deficiency.
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No. 33339-6-III
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A.MM also is clear on the remedy here. In the absence of evidence in the record
that the other deficiencies proven at trial, without regard to the invalid factor, justified
termination of the parental rights, remand to the trial court is in order. 182 Wn. App. at
792. As there, we "remand with instructions for the trial court to consider whether
termination is appropriate on the basis of the parental deficiencies of which [the mother]
was given adequate notice." Id. at 792-93. The trial court is required to strike the finding
regarding the recurring incarceration. Id. at 793.
A majority of the panel having determined that only the forgoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Competency ofS. 0.
S.O. also argues that her counsel provided ineffective service by failing to seek
appointment of a guardian ad litem once the attorney questioned her competency. The
record does not allow resolution of this claim.
When a parent is mentally incompetent, the superior court must appoint a guardian
ad litem to protect the parent's interests. RCW 4.08.060; In re Welfare of Dill, 60 Wn.2d
148, 150, 372 P .2d 541 (1962). A trial court is free to appoint a guardian ad litem on its
own motion. Graham v. Graham, 40 Wn.2d 64, 67, 240 P.2d 564 (1952). When an
attorney knows about the parent's incapacity, it is "incumbent" to request appointment of
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No. 33339-6-III
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a guardian ad litem. Dill, 60 Wn.2d at 150. Given trial counsel's request for an
evaluation under RCW 10.77 in the criminal case, S.O. contends counsel also was
required to act in the termination case. Her argument assumes too much.
Both parties also assume this ineffective assistance claim is governed by the
standards, applicable to the Sixth Amendment to the United States Constitution, found in
Stricklandv. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674
( 1984 ). Although we have suggested that Strickland is applicable to counsel appointed in
termination cases, no case has squarely so held. E.g., In re Dependency of S.MH., 128
Wn. App. 45, 61, 115 P.3d 990 (2005). Since the parties have presented no other
standard, we will apply Strickland in this case without deciding whether it is applicable at
all to termination actions.
Appellate courts must be highly deferential to trial counsel's decisions.
Strickland, 466 U.S. at 689-91. A strategic or tactical decision is not a basis for finding
error. Id. Under Strickland, courts apply a two-prong test: whether or not (1) counsel's
performance failed to meet a standard of reasonableness and (2) actual prejudice resulted
from counsel's failures. Id. at 690-92. When a claim can be disposed of on one ground, a
reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wn. App.
266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Although Washington courts can review a constitutional claim raised for the first
time on appeal under RAP 2.5(a), there still must be a sufficient factual basis supporting
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No. 33339-6-III
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the claim in order for review to be undertaken. State v. McFarland, 127 Wn.2d 322, 333,
899 P.2d 1251 (1995). That is S.O.'s problem here-there is scant evidence that S.O.
was incompetent to stand trial in the termination case. Everyone is presumed competent;
incompetency must be established by clear and convincing evidence. Binder v. Binder,
50 Wn.2d 142, 148-49, 309 P.2d 1050 (1957).
S.O. has no such evidence. All she has is her counsel's reference to the fact that
she sought an evaluation in the criminal case under RCW 10.77. That chapter of the
criminal procedure code governs both insanity and incompetency to stand trial. See, e.g.,
RCW 10.77.030; .050; .060(l)(a). The chapter also applies to evaluations conducted for
a diminished capacity defense. State v. Nuss, 52 Wn. App. 735, 738-40, 763 P.2d 1249
(1988), review denied, 112 Wn.2d 1010 (1989). The reference to "RCW 10.77" does not
necessarily support the argument that counsel believed her client to be incompetent in
that case. 6
Moreover, the ultimate question in a competency case is whether the party
understands the nature of the proceedings. State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d
1069 (1985) (competency is ability of criminal defendant to understand the proceedings
and assist in his own defense); Graham, 40 Wn.2d at 66-67 (guardian ad litem should be
6
Since we reject S.O.'s argument, we do not address the State's contention that
counsel made a tactical decision not to pursue incapacity in the termination case since it
would tend to undercut S.O.'s desire to parent her child.
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No. 33339-6-III
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appointed in civil case when party cannot comprehend the significance of legal
proceedings in terms of the best interests of the party). We believe it is entirely possible
for a person to be competent in a civil case and not competent in a criminal case-or vice
versa. Nothing indicates that S.O. did not understand the nature of the termination case.
She testified in that action and was present throughout the trial and the verdict. She even
penned a five page personal "appeal" challenging the action. In short, this record does
not suggest that S.O. was incompetent to stand trial.
The record does not support the contention that counsel knew 7 her client was
incompetent and performed ineffectively by failing to seek a guardian ad litem in the
termination case.
We remand to the trial court for further proceedings.
WE CONCUR:
Fearing,~J.
7
We note that an attorney who alleges a client is incompetent without first
confirming the fact can be subject to attorney discipline. In re Disciplinary Proceedings
Against Eugster, 166 Wn.2d 293, 322, 209 P.3d 435 (2009). Counsel cannot proceed
"entirely upon his own subjective judgment." Id.
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