Opinion
NO. 91512-1
08-17-2015
IN RE the DEPENDENCY OF: P.H.V.S.
RULING DENYING REVIEW
¶1 Richard Smith and Heidi Gabhart are the father and mother of P.H.V.S., a girl born in March 2013. After a dependency fact-finding hearing, the King County Superior Court found the child dependent and entered an order of dependency and disposition. Each parent appealed. Division One of the Court of Appeals granted accelerated review and affirmed the superior court in a partially published opinion. In re Dependency of P.H.V.S. , 186 Wn. App. 167, 339 P.3d 225 (2014).
¶2 Each parent now moves for discretionary review by this court. To obtain this court's review, a parent must show that the Court of Appeals decision conflicts with a decision of this court or with another Court of Appeals decision, or that he or she is raising a significant constitutional question or an issue of substantial public interest. RAP 13.4(b) ; RAP 13.5A(a)(3), (b).
¶3 The motions for discretionary review raise issues related to participation in the fact-finding hearing after the superior court found each parent "not competent understandingly and intelligently, to comprehend the significance of the legal proceedings and their effect on [his or her] best interests." These findings followed motions by Mr. Smith's attorney and Ms. Gabhart's attorney to investigate their clients' competency. The court appointed an investigative guardian ad litem (GAL) for each parent. Both investigative GALs recommended appointment of a GAL to assist the parent in the dependency proceedings. The court appointed a GAL for each parent for this purpose.
¶4 After two continuances, a dependency fact-finding hearing was held on October 22, 23, 30, and 31, 2013. Several matters were addressed at the beginning of the hearing. The court was asked by the Department of Social and Health Services to clarify that only the parents' attorneys would be cross-examining witnesses and making objections and acting in the attorney role, and not the GALs. The court made this clarification. Ms. Gabhart's attorney additionally sought clarification that the GAL would not be examined about conversations with the attorney, and the court confirmed that no party intended to call the GAL as a witness. Ms. Gabhart's attorney moved to continue the hearing until Ms. Gabhart was found competent. The court denied the motion to continue. The parents' attorneys moved to exclude the father or mother from testifying, noting the department had listed each parent as a potential witness. The court granted the motions and ruled that neither Mr. Smith nor Ms. Gabhart could be called to testify because the court had found each parent not competent and had appointed a GAL for each parent.
¶5 Fifteen witnesses testified during the four-day hearing. The court heard testimony about the mother's long term mental health issues and lack of recent mental treatment, as well as her untreated medical or neurological problem that frequently caused her to nod off or pass out. The court also heard testimony regarding the father's behavior that signaled potential mental health concerns and his apparent inability to recognize the risks posed by the mother's behavior. The GAL for Mr. Smith was absent during the morning session of the third day of the hearing, having sent an e-mail message stating he did not plan to attend the morning session but wanted the court to proceed without him. During this session the parties completed cross-examination of the supervisor of the parents' visitation with P.H.V.S., completed the direct and cross examination of a Nevada child protective services worker who had removed a different child from Ms. Gabhart's care in 2008 due to mental health issues, and began the department's direct examination of the social worker who had met with Mr. Smith and Ms. Gabhart at least three times a month for the past six months.
¶6 The superior court found P.H.V.S. dependent pursuant to RCW 13.34.030(6)(c), and determined that she needed to remain in an out-of-home placement. The court based its decision on the mother's untreated mental health needs; the mother's untreated medical or neurological condition and physical health; the father's unknown mental health status; the father's inability to recognize signs of concern in the mother's behavior; the risk that the father would allow the mother to care for the child alone; and the risk that both parents together presented to the child because of their inability to consistently meet the child's needs and provide safe care during their supervised visits.
¶7 In the Court of Appeals, Mr. Smith sought reversal of the order of dependency on the grounds that the absence of his GAL during the morning session of the third day of the dependency fact-finding hearing violated RCW 4.08.060, the Guardian ad Litem Rules, and due process. P.H.V.S. , 186 Wn. App. at 174. The Court of Appeals concluded that the absence of Mr. Smith's GAL during this half-day session violated the statutory requirements and GALR 2(1), and that the superior court erred in proceeding without the presence of Mr. Smith's GAL. But the court concluded the absence of the GAL resulted in little or no risk of error, and there was no due process violation. Id. at 181. This conclusion was based on a review of the record that showed the visitation supervisor's testimony that morning concerning Mr. Smith's ability to parent P.H.V.S. repeated what she had testified to the day before; the Nevada social worker testified only about her involvement with Ms. Gabhart; and the social worker who testified that morning about Mr. Smith's inability to care for P.H.V.S. later repeated those same concerns when Mr. Smith's GAL was present. Id. at 182.
¶8 In seeking this court's review, Mr. Smith argues that he was entitled to have a GAL appear in court on his behalf and that "[i]t is inherently prejudicial to deprive an incapacitated person of this important protection." He contends the Court of Appeals decision affirming the dependency order decision on the basis the absence of the GAL posed little risk of error and did not violate due process conflicts with In re Welfare of Dill , 60 Wn.2d 148, 372 P.2d 541 (1962). But Dill held that RCW 4.08.060 is not satisfied by appointment of an attorney to represent a person under legal disability, and that such a person can appear in court only by a GAL or by a regularly appointed guardian. Id. at 150. And the Court of Appeals decision applied the principles of Dill in concluding the court erred in proceeding without the presence of Mr. Smith's GAL. Id. at 180-81. Thus, the decision of the Court of Appeals is not in conflict with Dill and review is not warranted under RAP 13.4(b)(1).
¶9 Dill did not address the analysis that is appropriate when a GAL is appointed and is absent for a portion of the proceeding but is present during the remainder of the proceeding. In determining whether these circumstances violated due process in the context of this dependency proceeding, the Court of Appeals considered the factors and employed the balancing test set forth in Mathews v. Eldridge , 424 U.S. 319, 334–35, 96 S. Ct. 893, 47 L.Ed. 2d 18 (1976). Both this court and the United States Supreme Court have determined the nature of the process due in proceedings affecting parental rights by balancing the factors specified in Mathews . See Santosky v. Kramer , 455 U.S. 745, 754, 102 S. Ct. 1388, 1395, 71 L.Ed. 2d 599 (1982) (procedures in parental termination proceeding must meet the requisites of due process as specified in Mathews ), In re Key , 119 Wn.2d 600, 610-11, 836 P.2d 200, 206 (1992) (review of dependency order applies same three factors considered in Parham v. J.R. , 442 U.S. 584, 599–600, 99 S. Ct. 2493, 2502–03, 61 L.Ed. 2d 101 (1979), which in turn applied Mathews test). See also In re Dependency of M.S.R. , 174 Wn.2d 1, 15, 271 P.3d 234, 242 (2012) (applying the Mathews factors in addressing due process right to counsel of children who are subjects of dependency or termination-of-parental rights proceedings). Mr. Smith has not demonstrated that this decision raises a significant constitutional question that warrants review under RAP 13.4(b)(3).
¶10 Ms. Gabhart contends the superior court failed to ensure she "was afforded her right to be heard as an incompetent litigant." She argues the Court of Appeals decision affirming the dependency order conflicts with this court's decision in Graham v. Graham , 40 Wn.2d 64, 65-67, 240 P.2d 564 (1952). But she makes no contention that the superior court did not follow the procedures or substantive standards for appointment of a guardian ad litem as set forth in Graham , and does not challenge the competency determination. Rather she points to the superior court's clarification that her GAL could not make objections or cross-examine witnesses, and to the court's ruling that she could not be called to testify. And she contends her attorney was not able to adequately communicate with her GAL.
¶11 Ms. Gabhart demonstrates no basis for this court's review. The superior court appropriately distinguished the role of the GAL, with authority conferred by the order of appointment, from the role of counsel for Ms. Gabhart. She cites no authority for her apparent proposition that a GAL for a represented party must have the ability to directly participate in the conduct of the legal proceeding. As to the court's ruling that she could not testify, nowhere in the record is there any indication that Ms. Gabhart wanted to testify. Nor does she now contend that she wished to do so. And she presents no argument regarding the Court of Appeals observation that under RCW 5.60.050 a witness who is not competent to testify has no right to testify. Even assuming Ms. Gabhart had a right to testify, an issue I need not decide, it would not be the role of the superior court to question the decision of Ms. Gabhart's attorney to seek a ruling that Ms. Gabhart could not testify. Cf. State v. Thomas , 128 Wn.2d 553, 557, 910 P.2d 475, 478 (1996) (noting potential negative consequences that could result from a colloquy between the trial court and criminal defendant regarding whether the defendant would testify, and holding the trial court does not have a duty to inform a defendant of his constitutional right to testify in his own behalf). The record does not support review of this issue under any of the criteria of RAP 13.4(b). As to her claim that "the record reflects no indication that Ms. Gabhart's counsel and the GAL had an opportunity to communicate during trial," one would not expect the record to contain communications the attorney and the GAL intended to be confidential. And as the department points out, there are several record references that suggest they did communicate during the trial. The extent of the communication between Ms. Gabhart's attorney and her GAL does not present an issue of constitutional significance or public interest that warrants further review by this court. Accordingly, she does not show review is warranted under any of the criteria of RAP 13.4(b).
¶12 The motions for discretionary review are denied.