In the Matter of the Parental Rights to: A.G.G.

FILED
OCTOBER 6, 2020
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 Parental Rights to ) No. 36894-7-III
)
)
A.G.G. ) UNPUBLISHED OPINION
)
)

LAWRENCE-BERREY, J. — R.G., mother to A.G.G. (A.G.), appeals after the trial

court terminated her parental rights. She argues (1) the trial court abused its discretion by

not applying a presumption of incompetency following a previous finding of

incompetency, (2) the trial court violated her right to due process by failing to obtain an

expert opinion of competency, and (3) the State presented insufficient evidence that it

offered the services she needed to reunify with her child and it tailored these services to

her cognitive needs. We disagree with her arguments and affirm.

FACTS

In February 2015, when A.G. was 10 years old, the Department of Children,

Families and Youth removed her from R.G., her mother. The removal occurred after a

long history of reports of domestic violence in the home between R.G. and the father of
No. 36894-7-III
In re Parental Rights to A.G.G.

one of her other children, illegal drug use, unstable housing, and neglect of the minor

child. The Department also identified R.G.’s mental health condition as a source of

concern. A.G. has an adjustment disorder.

In May 2015, R.G. agreed to a dependency. The dependency court ordered R.G. to

engage in the following services: a psychological evaluation, mental health counseling, a

chemical dependency evaluation, random urinalysis testing, a domestic violence

assessment, and parenting education. Meanwhile, A.G. was placed out of the home. R.G.

completed a chemical dependency evaluation at Okanogan Behavioral Health Care in

January 2016. R.G. refused to submit to urinalysis testing and refused to participate in

domestic violence services and parenting education.

R.G. was diagnosed with posttraumatic stress disorder (PTSD). The trial court

ordered R.G. to attend cognitive behavioral therapy, which teaches coping skills and may

ultimately change problematic behaviors. R.G. quit attending after two sessions and

before therapy started.

In April 2016, the Department referred R.G. to Dr. Catherine MacLennan for a

psychological evaluation with a parenting component. Alicia Tonasket, the social worker

assigned by the Department to the case, attempted multiple times to schedule the

evaluation but R.G. did not cooperate. Ultimately, R.G. was evaluated in August 2016.

2
No. 36894-7-III
In re Parental Rights to A.G.G.

Testing revealed no intelligence concern that interfered with R.G.’s ability to learn and

function in services or understand the legal proceedings. However, R.G. refused to

answer many questions, talked about tangential issues, became irritable, quit before the

evaluation was concluded, and refused to complete the evaluation.

Dr. MacLennan diagnosed R.G. with PTSD, cognitive disorder not otherwise

specified, and traits of borderline personality disorder. The cognitive disorder was

unrelated to intelligence, but instead was possibly related to a traumatic brain injury,

which R.G. reported resulted from a car accident years earlier.

Dr. MacLennan determined that R.G. was unable to parent and believed this

inability was not likely to change due to R.G.’s unwillingness to engage in services, her

lack of empathy toward A.G., and her lack of insight into how her functioning negatively

affects A.G. Dr. MacLennan noted that a neuropsychological evaluation might clarify

what was causing R.G.’s cognitive problems, but doubted R.G. would appear for or

cooperate with the more intensive testing required for such an evaluation.

Both Ms. Tonasket and A.G.’s guardian ad litem (GAL) experienced R.G.’s odd

communication style. She sometimes responded to questions by rambling about unrelated

subjects or making bizarre claims without allowing the listener to speak or comment.

Nevertheless, both Ms. Tonasket and A.G.’s GAL believed R.G. understood things

3
No. 36894-7-III
In re Parental Rights to A.G.G.

because she was able to answer questions about the services she engaged in or that were

required, and understood what was happening vis-à-vis the termination proceedings.

In November 2016, at the request of R.G.’s then-attorney and with the agreement

of the Department, the trial court entered an order finding, “the mother cannot

comprehend the significance of these legal proceedings and their effect on her best

interests and should be appointed a guardian ad litem.” Clerk’s Papers at 278. R.G. was

not present for the hearing. The court ordered the GAL to prepare a report as to R.G.’s

continued need for a GAL.

The first termination trial was scheduled for December 2017. R.G. failed to

appear for trial. R.G.’s GAL filed a report at the start of trial, which noted he had been

unable to contact R.G. to determine whether she needed a GAL. R.G.’s new trial attorney

reported, “I don’t have competency concerns for [R.G.]. And I’ve met with her on

several occasions. That’s my position on that.” Report of Proceedings (RP) (Dec. 13,

2017) at 9. The trial court then dismissed the GAL from further proceedings with the

agreement of both parties. At the conclusion of trial, the court found that the Department

had met its burden under RCW 13.34.180 and terminated R.G.’s parental rights to A.G.

4
No. 36894-7-III
In re Parental Rights to A.G.G.

In January 2019, the Department agreed to set aside the termination order based on

concerns involving the GAL’s appointment and subsequent dismissal without a

competency hearing. Following this, the trial court scheduled a second termination trial.

On February 7, 2019, the trial court held a status/competency hearing. The court

considered documents, including psychologist Dr. MacLennan’s August 2016 evaluation

of R.G., and asked R.G. questions. During most of the hearing, R.G. was argumentative,

repeatedly wondered aloud where her child was, and seldom answered the court’s

questions. However, R.G. said she understood that the Department removed A.G.

because of domestic violence in the home and because the Department believed she was

not a competent mother. She explained the Department was seeking to terminate her

parental rights, disagreed she was an unfit mother, and wanted a trial so she could have

her witnesses testify. She also said she could help her attorney identify witnesses and

provide documents to prove her case.

R.G.’s new attorney also opposed appointment of a GAL. When asked by the

court if there was a need for a GAL, R.G.’s new attorney said there was no need for a

GAL and that R.G. “understands the process and the rules involved in this proceeding

probably better than any client I’ve ever had in a dependency case.” RP (Feb. 7, 2019) at

26.

5
No. 36894-7-III
In re Parental Rights to A.G.G.

The trial court, referring to chapter 4.08 RCW, noted that an adult is presumed

competent. It found there to be insufficient evidence to overcome the presumption of

competency and declined to appoint a GAL.

The trial court set the second termination trial for May 28, 2019. At the second

trial, A.G.’s GAL supported termination of parental rights. Dr. MacLennan testified that

R.G’s unwillingness to attend services was extremely unlikely to change and, even if she

was to completely engage in services, it would be years before she would be a fit parent.

After hearing the evidence, some of which is set forth above, the trial court terminated

R.G.’s parental rights to A.G.

R.G. timely appealed the termination order.

ANALYSIS

A. R.G.’S COMPETENCY

R.G. contends the trial court applied the wrong legal standard in finding her

competent and that it abused its discretion by not appointing a GAL. She argues the trial

court should have applied a presumption of incompetence due to her previously being

found incompetent.

6
No. 36894-7-III
In re Parental Rights to A.G.G.

1. Legal standard

R.G. contends the trial erred by not presuming her incompetent after it found her

incompetent in November 2016. R.G. cites Shelley v. Elfstrom, 13 Wn. App. 887, 538

P.2d 149 (1975). There, the Shelley court ruled that a party who had previously been

adjudicated incompetent was presumed incompetent unless the presumption was rebutted.

Id. at 889. This presumption arises because of collateral estoppel. See In re Higdon, 30

Wn.2d 546, 192 P.2d 744 (1948).

For collateral estoppel to apply, the issue must have actually been litigated and

necessarily determined. Energy Nw. v. Hartje, 148 Wn. App. 454, 465, 199 P.3d 1043

(2009). The November 2016 order appointing a GAL declared R.G. incompetent, but it

did not result from the issue of competency being litigated. Rather, R.G.’s attorney

requested the court to enter the order.

Moreover, the finding was always subject to being withdrawn at R.G.’s request.

R.G. did not agree to the finding of incompetency. In fact, R.G. was absent from court

when her attorney, without her consent, asked the trial court to find R.G. incompetent. It

is evident from the record that R.G. did not wish to be declared incompetent and that she

wished to keep control of her own case. An attorney may not waive a substantive right

without the client’s consent. In re Welfare of H.Q., 182 Wn. App. 541, 553-54, 330 P.3d

7
No. 36894-7-III
In re Parental Rights to A.G.G.

195 (2014). Because the finding of incompetency was never litigated and was always

susceptible to being withdrawn at R.G.’s request, the trial court did not err in presuming

R.G. competent.

2. Determination of competency

This court reviews a trial court’s determination of competency for abuse of

discretion. State v. Lawrence, 166 Wn. App. 378, 385, 271 P.3d 280 (2012). We find

abuse of discretion if the trial court’s decision is based on untenable grounds or was

decided for untenable reasons. Id. This includes where the trial court applies an incorrect

legal standard. Id. at 386.

Generally, litigants are presumed competent and able to make decisions about their

case. Tai Vinh Vo v. Le Ngoc Pham, 81 Wn. App. 781, 784-85, 916 P.2d 462 (1996).

Despite this, the trial court has a duty to protect the interests of a party who appears to be

incompetent. Id. at 785. A trial court must hold a competency hearing and appoint a

GAL if it decides a litigant is incompetent. In re Marriage of Blakely, 111 Wn. App. 351,

353, 44 P.3d 924 (2002).

Citing Vo, R.G. argues the trial court applied the wrong legal standard because it

did not look to whether she could “understandingly and intelligently” understand the

8
No. 36894-7-III
In re Parental Rights to A.G.G.

proceedings as well as “the effect and relationship of such proceedings in terms of [her]

best interests.” 81 Wn. App. at 784-85. We disagree.

During the hearing, R.G. usually failed to directly answer the court’s questions.

But on those rare occasions when R.G. focused on a question, she showed she understood

the proceedings, the roles of those involved, and why the Department was seeking to

terminate her rights to A.G. Further, R.G.’s attorney affirmatively told the court a GAL

was not needed and that R.G. understood the proceedings probably better than any client

she ever had. Trial courts typically give considerable weight to a party’s attorney in

determining competency. City of Seattle v. Gordon, 39 Wn. App. 437, 442, 693 P.2d 741

(1985). We conclude the trial court did not abuse its discretion in finding R.G. competent

and not appointing a GAL.

B. DUE PROCESS RIGHTS

R.G. contends the trial court violated her due process rights by not obtaining an

expert to testify about her competency before making a finding that she was competent.

This claim of error was not raised at trial.

In general, this court reviews only claims of error that were raised at trial.

RAP 2.5(a). An exception to this rule allows review of claims of manifest error affecting

a constitutional right. RAP 2.5(a)(3).

9
No. 36894-7-III
In re Parental Rights to A.G.G.

An error is manifest if there is actual prejudice—meaning a plausible showing by

the appellant that the asserted error had practical and identifiable consequences at trial.

State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015). To determine whether this

standard is met, “the appellate court must place itself in the shoes of the trial court to

ascertain whether, given what the trial court knew at that time, the court could have

corrected the error.” State v. O’Hara, 167 Wn.2d 91, 100, 217 P.3d 756 (2009). “If the

trial court could not have foreseen the potential error or the record on appeal does not

contain sufficient facts to review the claim, the alleged error is not manifest.” State v.

Davis, 175 Wn.2d 287, 344, 290 P.3d 43 (2012).

R.G. does not meet the manifest error standard because, as explained below, the

trial court had no reason to appoint an expert to determine R.G.’s competency.

Dr. MacLennan’s psychological evaluation of R.G. revealed she had the ability to

function in services and understand legal proceedings. Both R.G.’s social worker and

A.G.’s GAL reported R.G. understood the termination proceedings and what she was

required to do. R.G.’s own attorney advised the trial court there was no basis for a GAL

and that R.G. understood the proceedings probably better than any client she ever had.

All this confirms the trial court’s finding that R.G. was competent. Based on what the

10
No. 36894-7-III
In re Parental Rights to A.G.G.

trial court knew at the time, it had no reason to appoint an expert to determine R.G.’s

competence.

C. SUFFICIENCY OF THE EVIDENCE

R.G. contends the trial court’s decision was not based on substantial evidence. She

argues the Department did not offer her a meaningful opportunity to undergo a

neuropsychological examination and failed to tailor its services offered to her. We

disagree.

An order terminating parental rights must be supported by clear, cogent, and

convincing evidence. In re Parental Rights to K.M.M., 186 Wn.2d 466, 478, 379 P.3d 75

(2016). To satisfy this standard, a trial court must determine that the ultimate fact at issue

is shown to be “‘highly probable.’” Id. at 478 (internal quotation marks omitted)

(quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). This court

reviews the trial court’s decision on the basis of substantial evidence and will not judge

the credibility of the witnesses in our review. Id. at 477.

Among the facts that must be shown during a termination hearing, the State must

show, “[t]hat the services ordered under RCW 13.34.136 have been expressly and

understandably offered or provided and all necessary services, reasonably available,

capable of correcting the parental deficiencies within the foreseeable future have been

11
No. 36894-7-III
In re Parental Rights to A.G.G.

expressly and understandably offered or provided.” RCW 13.34.180(1)(d). Where the

record establishes any offered services would be futile, the trial court may find the

Department offered all reasonable services. In re Parental Rights to B.P., 186 Wn.2d

292, 297, 376 P.3d 350 (2016). This “derives from cases in which the State made

repeated offers of services but eventually gave up after the parent refused to accept any of

those offers.” Id. at 316 n.5.

R.G. argues the Department did not offer or provide her with a neuropsychological

examination. She correctly notes the Department did, in fact, offer an evaluation, but

contends by the time it was offered, she no longer was in contact with her psychologist

and could not have taken advantage of it. However, substantial evidence shows that R.G.

had been offered a number of services before this and refused to attend many of them. In

fact, R.G. refused for a long time to have a psychological evaluation, left before the

evaluation concluded, and refused to complete it. Because R.G. was unwilling to take

advantage of or complete these services, the Department was not required to provide

additional services. K.M.M., 186 Wn.2d at 485-86. The evidence that R.G. refused a

number of services along with Dr. MacLennan’s testimony that she was not likely to

change was sufficient to support the trial court’s finding that further offers of services

would be futile.

12
No. 36894-7-III
In re Parental Rights to A.G.G.

R.G. also argues that the Department failed to tailor its services around her

cognitive needs. Services offered must be tailored to meet an individual parent’s needs.

In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). As part of this

requirement, the Department must ensure providers are informed of the parent’s needs.

In re Parental Rights to I.M.-M., 196 Wn. App. 914, 922, 385 P.3d 268 (2016). R.G.

contends that, as in I.M.-M., the therapist who worked with her was uninformed of her

cognitive issues that interfered with the services she was given.

However, R.G. fails to show how services would have been improved where she

refused to engage in many of the services offered. In I.M.-M., the parent was consistently

engaging with the services being offered. Id. at 919-20. The parent was not showing

improvement and there was evidence this was because the therapist was not informed of

the parent’s particular issues. Id.

Unlike I.M.-M., R.G. did not engage in services and there is no reason to believe

she would have done so. She does not make a showing there was any negative effect

stemming from the Department not informing one of her therapists of her cognitive

issues.

13
No. 36894-7-III
In re Parental Rights to A.G. G.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Lawrence-Berrey, J.

WE CONCUR:

14