Opinion
No. 59633-1-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-5-01898-3, Joan E. DuBuque, J., entered February 27, 2007.
Affirmed by unpublished per curiam opinion.
Dante Lewis appeals an order terminating his parental relationship with his daughter, J.S.L. He argues that the trial court deprived him of due process by denying his motion for a continuance when his counsel was unprepared for trial. The record, however, shows that Lewis received effective assistance of counsel, and he has not shown that denial of the continuance prejudiced him or that the outcome of the trial would have been different if it had been continued. We affirm.
FACTS
Lewis has an extensive criminal history, and was in prison when J.S.L. was born to Lewis and Kelley Kimm on October 29, 2002. Both parents have histories of substance abuse. In December 2002, Kimm asked Douglas and Margo Engberg to help her care for J.S.L. The Engbergs have been J.S.L.'s primary caregivers ever since. In April 2003, with Kimm's agreement, the Engbergs became J.S.L.'s legal guardians.
In June 2003, Lewis was released from prison. While he was out of custody, he resided with Kimm but did not pay rent or help financially with J.S.L.'s care. He saw J.S.L. only sporadically and did not nurture or care for her. He smoked marijuana nearly every day, even when J.S.L. was present.
Lewis frequently abused Kimm, both physically and mentally. On one occasion, for example, he yelled at Kimm while she was driving because her father would not buy them a new car. Kimm pulled over, took J.S.L., and got out of the car. Lewis grabbed J.S.L., threw her onto the front seat of the car, and drove away.
A month later, in August 2004, Lewis and Kimm argued again. Lewis ordered Kimm to call the Engbergs and ask them to bring J.S.L. over. Kimm called them, but they sensed something was wrong and called the police. Before the police arrived, Lewis hit Kimm, and when he heard the police coming, tried to smother her with a pillow. He was charged with and convicted of felony violation of a no-contact order, and returned to prison.
In July 2006, the Engbergs filed a petition to terminate Lewis's parental rights and adopt J.S.L. Trial was set for October 30, 2006. The court ordered the Office of Public Defense to appoint counsel for Lewis.
Kimm already had agreed to relinquish her parental rights.
After two appointments failed because of conflicts, counsel appeared for Lewis on October 6, 2006. Counsel requested a continuance in order to prepare for trial. The court granted the motion and continued trial until December 4, 2006.
On November 8, 2006, counsel filed a second motion for a continuance in order to review discovery and schedule interviews. The court again granted the motion and continued trial to January 22, 2007.
On January 9, 2007, Lewis's counsel filed a motion to withdraw, indicating that in November 2006, Lewis wrote and told her he no longer wanted to contest the matter, but refused to voluntarily relinquish his parental rights or sign a declaration indicating he no longer wanted counsel to represent him. Counsel said she had left "literally dozens of messages" for Lewis in the previous six weeks, but neither Lewis nor his counselor at the prison returned her calls. Clerk's Papers at 82.
Recognizing the important rights involved in a termination proceeding, the court arranged to telephone Lewis at 9 a.m. on the day of trial so he could be heard on the motion. When the court called, however, Lewis did not make himself available. The court proceeded with argument on the motion to withdraw. Counsel reiterated that throughout November and December, Lewis told her he did not want to contest the termination and did not want counsel to represent him, but refused to sign any documents to that effect. She said she quit working on the case in mid-November, and wrote Lewis explaining "what the process is, what's going to happen, what his choices are." Report of Proceedings (RP) (Jan. 23, 2007) at 11. The court granted counsel's motion to withdraw and excused her.
Immediately thereafter, the bailiff announced that Lewis was on the telephone. The court summarized counsel's remarks. Lewis agreed they were accurate, but told the court he had mixed emotions. The court informed Lewis that counsel had been allowed to withdraw and that trial was proceeding. The Engbergs' counsel called Lewis as the first witness. Lewis answered the petitioners' questions, and expressed resentment that the Engbergs had testified against him in his last trial, said that he had never done anything to harm J.S.L., and argued that the court should not hold his criminal record against him.
Discussion followed as to exhibits relating to Lewis's criminal history. At that point, Lewis's former counsel, who had never left the courtroom, asked to rescind her withdrawal and represent Lewis. After more discussion, the court allowed this. Counsel immediately asked for another continuance, saying she was not certain she could provide effective assistance, but the court refused to continue the trial because Lewis was responsible for counsel's lack of preparation:
The reason counsel did not prepare is because Mr. Lewis said I'm no longer interested in contesting it. It is not ineffective assistance of counsel that is occurring. It is the client's failing to cooperate with his counsel in order for counsel to be best prepared to the best of her ability.
RP (Jan. 23, 2007) at 36. Counsel remained and represented Lewis. Trial did not finish that day, and resumed six days later, by which time Lewis was able to contact his mother, who testified on his behalf. After both sides rested, the court granted the petition for adoption and terminated Lewis's parental rights.
ANALYSIS
Lewis argues that when the court denied his third motion for a continuance, it violated his right to due process by depriving him of his right to effective assistance of counsel. We review a decision to deny a continuance for manifest abuse of discretion. In re Dependency of V.R.R., 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A court considers various factors when it decides a motion to continue, including diligence, due process, the need for an orderly procedure, the possible effect on the trial, and whether the court previously granted continuances. V.R.R., 134 Wn. App. at 581.
To show that the denial of a continuance violated the right to due process, an appellant must show either that he was prejudiced by the denial or that the outcome would have been different if the continuance had been granted. Id.
Lewis argues he was prejudiced because his counsel was not prepared for trial and therefore could not effectively represent him. Lewis does not say how his attorney was ineffective, however, and the record does not support his assertion. Lewis's counsel made as strong a case for him as anyone could considering his criminal history and poor conduct (much of which he admitted). She knew who the witnesses were and what they were likely to say at trial. She had received and reviewed the discovery, which consisted of Lewis's criminal history and the guardian ad litem's report. She made appropriate objections and elicited favorable testimony on cross-examination, reinforcing Lewis's position and undermining the petitioners' case. Lewis does not establish ineffective assistance of counsel. His due process argument therefore fails.
Rather, Lewis focuses his argument upon his assertion that he did not waive or forfeit his right to counsel. See, e.g., City of Tacoma v. Bishop, 82 Wn. App. 850, 920 P.2d 214 (1996); In re Welfare of G.E., 116 Wn. App. 326, 65 P.3d 1219 (2003). But the appellants in those cases were forced to represent themselves. Lewis's counsel was present and effective. The waiver and forfeiture cases are inapt.
CONCLUSION
The trial court did not err. The order terminating Lewis's parental rights is affirmed.