In re the Termination of: E. R. D.

• Court: Court of Appeals of Washington
• Decided: January 19, 2017
• Docket: 33762-6
• Status: Unpublished

Opinion

FILED JANUARY 19, 2017 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In the Matter of the Parental Rights to ) ) No. 33762-6-111 E.R.D. ) ) ) UNPUBLISHED OPINION ) ) SIDDOWAY, J. -The mother of E.R.D. failed to appear at the time set for trial of a

petition to terminate her parental rights and an order of default was entered. She was

unable to provide the superior court with an address where notices of continued dates for

a trial could reach her and she took no action to determine what was happening in the

termination case. Three months after the trial was held and an order terminating her

parental rights was entered, she moved to vacate the order of default and the judgment.

Her motion was denied.

We find no abuse of discretion by the trial court and affirm.

FACTS AND PROCEDURAL BACKGROUND

The mother in this case adopted E.R.D. as a baby. E.R.D. came into the care of

the Department of Social and Health Services (DSHS) after it had received and

investigated four intakes alleging child abuse and neglect by the mother. In September

2012, after E.R.D. arrived at school wearing pajamas, with clothing in a bag and no I I ! No. 33762-6-111 In re Parental Rights to E.R.D. I

I shoes, and school personnel were left to get her dressed, feed her, and get her to her

I classroom, DSHS began dependency proceedings. On March 26, 2013, the juvenile court

entered an agreed order of dependency for then 8-year-old E.R.D., and she was placed in I I \ foster care.

! At the time, the mother's identified parenting deficiencies included untreated I substance abuse and untreated mental health issues. She was offered substance abuse

treatment, mental health services, parenting services, and random urinalysis. I Sixteen months later, in July 2014, DSHS commenced parental termination

proceedings. On August 21, 2014, after the mother's social worker, Maura Brown, had I 1 been unable to contact her despite multiple attempts, Ms. Brown traveled to a visitation

center where she knew the mother was scheduled for visitation with E.R.D. E.R.D. and I her mother were present. According to Ms. Brown, she served the mother in the hallway

with a notice and summons for the termination trial that was scheduled for October 23,

2014, verbally told her of the trial date, and told her that she needed to contact her

attorney.

The notice and summons served on the mother included the following language:

3.6 YOU ARE NOT REPRESENTED BY A LAWYER IN THIS TERMINATION PROCEEDING EVEN IF YOU WERE APPOINTED A LA WYER IN THE PRIOR DEPENDENCY CASE. YOU MUST REAPPLY FOR APPOINTMENT OF A LAWYER IN THIS CASE. IF YOU OR A LAWYER ON YOUR BEHALF DOES NOT APPEAR IN THIS CASE, YOU WILL BE

2 No. 33762-6-111 In re Parental Rights to E.R.D.

DEFAULTED AND TERMINATION OF YOUR PARENTAL RIGHTS GRANTED.

Clerk's Papers (CP) at 11.

The mother had been represented by lawyer Cathy Busha during the dependency

but according to Ms. Brown, the mother informed her when served "that she would hire

another attorney to represent her" and "was trying to procure other legal representation."

Report of Proceedings (RP) (July 30, 2015) at 7-8.

The mother did not appear for the October 23 hearing. Ms. Busha, however, was

present at court that day. It was only after the mother's case was called and the court

noted the mother's absence on the record that Ms. Busha addressed the court. She said:

MS. BUSHA: Your Honor, I've been representing [the mother]- the dependency for quite a long time. She has been in contact with me. I'm not sure why she's not here today. THE COURT: Oh. MS. BUSHA: However, I can appear-her behalf-and we can set dates for the termination. I know she does not want her parental rights terminated-. We had been working towards a guardianship and that fell through- THE COURT: Oh. MS. BUSHA: -(inaudible) with that. So I would ask that there not be a default today. !-(inaudible) I'm willing to represent her, and-maybe we can work on dates for the trial.

RP (Oct. 23, 2014) at 3-4.

Invited to respond, Jennifer Dixon, DSHS's lawyer told the court, "I don't think

there was an affirmative request for counsel or any indication that she has asked Ms.

Busha to represent her today." Id. at 4. Ms. Busha did not disagree. Ms. Dixon

3 No. 33762-6-111 In re Parental Rights to E.R.D.

continued that she would like the court to enter an order of default, knowing that would

"give Ms. Busha an opportunity to make a motion to set the default aside later if that

situation changes." Id. The court also heard from Nancy Graham, the guardian ad litem,

who said that E.R.D. was doing well in her foster home and was inquiring about whether

she would be adopted, and that she "hope[d] we can get this resolved." Id. at 5.

Ms. Dixon proposed to set the termination trial over to the next docket (November

13) and the court agreed, telling Ms. Busha that "hopefully that will-Ms. Busha, you'll

be able to--have contact with your client, and take whatever steps are necessary." Id.

For reasons that are unexplained, trial was initially set, instead, for January 21,

2015. The Notice of Trial Date reflects the superior court administrator's certification

that it was mailed or hand delivered to the parties, including the mother, on October 29,

2014. The record includes an envelope addressed to the mother at an Ellensburg

apartment address, bearing a stamp that states "RETURN TO SENDER[,] MOVED LEFT No

ADDRESS[,] UNABLE TO FORWARD." CP at 16. The mother would later submit a

declaration explaining that:

At the time of the dependency and termination trial, I was having a great deal of difficulty in my life and was homeless for some months. I was on a downhill spiral. I did not see some of my mail nor had a phone sometimes.

CP at 43-44.

An order of default was not entered until November 5, 2014.

4 No. 33762-6-111 In re Parental Rights to E.R.D.

On November 20, the trial date was reset to December 11, 2014. The proof of

service on the notice resetting hearing states that a copy of the document was served by

U.S. Mail on all parties or their counsel of record. Nothing in the record indicates that a

lawyer had appeared on behalf of the mother. Trial proceeded on December 11. The

mother did not appear, nor did anyone on her behalf.

Ms. Brown was questioned during the termination trial by Ms. Dixon and by the

guardian ad litem. Ms. Brown testified that during the dependency, she had provided the

mother with multiple substance abuse treatment referrals, a referral for a psychological

parenting capacity evaluation, and joint mental health sessions with E.R.D. She testified

that while the mother completed a chemical dependency program on January 28, 2013,

she then failed to complete the recommended intensive inpatient chemical dependency

treatment or co-occurring mental health treatment. She testified that the mother did not

provide consistent urine samples and in 2013 she had multiple positive UAs for both

methamphetamine and marijuana.

Ms. Brown testified that communication with the mother had been very difficult

and visitation between the mother and E.R.D. had been disruptive and erratic. She

testified that the mother was homeless and did not demonstrate any change in behavior

during the dependency. She expressed her opinion that it would take at least two years

for the mother to remedy her parenting deficiencies. She also expressed the view that

5 f I I I I I II No. 33762-6-111 In re Parental Rights to E.R.D. I I termination was in E.R.D.'s best interest and recommended terminating the parental I relationship and allowing E.R.D. to be adopted by her foster parents. Ij At the conclusion of the one day trial, the court announced its decision to

terminate the mother's parental rights. It entered amended findings of fact, conclusions

I of law, and an order of termination on December 18.

The mother had her last visit with E.R.D. that day, and Ms. Brown delivered to her

a copy of the order terminating her parental rights. I i Three months later, on March 18, 2015, the mother filed a motion to set aside the

default. Her declaration in support stated among other matters that she "was unaware of

the date of the termination trial court hearing," that she did "not honestly recall anyone

serving [her] with papers for the court date," and that "[a]fter learning of this news, [she]

was extremely devastated that there was a trial and [she] was not in attendance and that

[her] parental rights had been terminated." CP at 43. She said she had been clean and

sober since sometime in November 2014, had called the Office of Public Defense after

learning of the order of termination, and they had arranged for Ms. Busha to represent her

in moving to set aside the default.

DSHS opposed the motion, representing that

A substantial hardship would be suffered by the child if the order terminating the mother's parental rights was vacated. The child has a right to permanency, and at age 10 years old, is aware that her mother's parental rights have been terminated and that she is eligible to be adopted at this time. The most recent ISSP [Individual Service and Safety Plan] filed in

6 No. 33762-6-111 In re Parental Rights to E.R.D.

the dependency action explains that "[E.R.D.] is aware that she is eligible for adoption and has voiced excitement about having a permanent home."

CP at 51.

The mother's motion was continued a couple of times but was ultimately heard on

July 23. That day, Ms. Busha filed a declaration from the mother stating that she had

missed court in November and December 2014 "due to not being notified by [DSHS]."

CP at 60. Given the conflicting testimony of the social worker and the mother as to

whether the mother had been served, the court concluded that the factual dispute needed

to be resolved and notified the parties that "[d]ue to the fact that it is difficult to make

credibility determinations from a review of written declarations, the court will take brief

testimony from the social worker and the mother on this important issue within the next

week or so." CP at 64.

The hearing took place a week later, on July 30. Ms. Brown testified to having

served the mother on August 21, 2014, and to the conversation that took place between

them. She testified that when she arrived at the visitation center and encountered both

E.R.D. and her mother, Ms. Brown asked to speak with the mother privately in the

hallway, and served her with the papers at that time. DSHS offered, as an exhibit, a case

note Ms. Brown entered the next morning, which the court later described as

documenting that at 5: 15 PM on August 21, 2014, [Ms. Brown] had personally served [the mother] with a copy of the notice, summons and petition for termination of parent-child relationship and also verbally

7 No. 33762-6-111 In re Parental Rights to E.R.D.

advised her that the hearing on that petition was scheduled for October 23, 2014.

CP at 82.

The mother also testified. She recalled seeing Ms. Brown on August 21, but

testified that Ms. Brown handed her a sealed envelope that the mother opened later, after

leaving the visit, and that it only contained court papers relating to an upcoming

permanency plan hearing. According to the mother, when handed the envelope, she

asked Ms. Brown if she knew what was inside it and Ms. Brown answered no. RP (July

30, 2015) at 16. She testified that if the papers had related to a termination trial, rather

than permanency planning, she "would have been there." Id.

On cross-examination, DSHS offered an August 21, 2014 case note from the

visitation supervisor, Rylee McCauley, and asked the mother to read into the record the

portion of the case note that addressed what happened after Ms. Brown arrived. The

mother read the following from Ms. McCauley's case note:

Maura arrived at 4:57. [E.R.D.] opened up her coat. [E.R.D.] asked what her surprise was that Maura gave [her mother]. [Mother] said it wasn't a I ~ surprise, just papers. [Mother] asked if I knew what the papers were. I said no, and I shouldn't know. She said a whole other ... trial. I said we could II talk about it another time.

Id. at 18. II At the conclusion of the hearing, the trial court announced it would not vacate the I default, observing that the mother admitted receiving an envelope from Ms. Brown at the

l 1 1 l 8

I No. 33762-6-III In re Parental Rights to E.R.D.

time of the alleged service and, as to the envelope's contents, it "finds the social worker's

credibility greater than [the mother's] on that particular issue." Id. at 23.

On August 26, the mother filed a notice of appeal. Because no order denying the

motion to vacate had been entered, this court scheduled a hearing to determine

appealability. The parties thereafter secured a written order denying the motion, which

was entered by the trial court on October 7, 2015, and the appeal of that order was

allowed to proceed.

ANALYSIS

Only two of eight assigned errors are properly before us

The mother makes eight assignments of error on appeal. Most are to trial court

decisions made on and before December 18, 2014, as to which her appeal is not timely.

A party may appeal a decision terminating all of a person's parental rights with respect to

a child, RAP 2.2(a)(6), but with exceptions not applicable here, a notice of appeal must

be filed in the trial court within 30 days. RAP 5.2(b). Any appeal of the trial court's

December 18, 2014 judgment terminating the mother's parental rights, or any ruling that

prejudicially affected that judgment (such as the order of default) was required to be filed

by January 17, 2015. The mother did not file a notice of appeal in the trial court until

August 26, 2015.

A CR 60 motion to vacate a judgment is not one of the posttrial motions that

extends the time for filing an appeal under RAP 5.2(e ). "An appeal from the denial of a

9 I I I i No. 33762-6-111 In re Parental Rights to E.R.D.

CR 60(b) motion is not a substitute for an appeal and is limited to the propriety of the

I denial, not the impropriety of the underlying order." In re Dependency ofJMR., 160

I Wn. App. 929, 938-39 n.4 (2011); In re Parenting & Support of CT., 193 Wn. App. 427,

435,378 P.3d 183 (2016) ("When reviewing a trial court's denial of a motion to vacate, I we review only the trial court's decision ... we do not address arguments not made I before the trial court."); 2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES

I ' PRACTICE RAP 2.4 author's cmt. 6, at 195 (8th ed. 2014) (observing that a ruling on a

motion to vacate is appealable, but the appeal brings up only the question of whether the

trial court abused its discretion in denying the motion to vacate, not the merits of the

judgment itself).

The rules are clear and the case law is well settled. Moreover, the untimeliness of

appealing anything other than denial of the motion to vacate was essentially conceded by

the mother when a commissioner of this court reviewed appealability in the fall of 2015.

In a brief filed with this court, the mother argued that the trial court's order denying her

motion to vacate was appealable of right "pursuant to RAP 2.2(a)(10)." 1 Appellant's

Mem. on Appealability at 2-3. A commissioner of this court then determined that "the

mother may appeal as a matter of right the Oct. 7, 2015 Order." Comm'r's Ruling, In re

1 RAP 2.2(a)(l0) provides that among the only superior court decisions from which a party may appeal is "[a]n order granting or denying a motion to vacate a judgment."

10 No. 33762-6-111 In re Parental Rights to E.R.D.

Parental Rights to E.R.D., No. 33762-6-111, at 1 (Wash. Ct. App. Oct. 21, 2015). No

motion to modify that ruling was filed.

For these reasons, only two of the mother's assignments of error are properly

before the court: the error she assigns to the trial court's October 7, 2015 order denying

her motion to set aside default and order of termination, and her assignment of error to a

single finding within that order.

The only finding in the October 7, 2015 order to which the mother assigns error is

the following portion of finding 2.3:

The mother did not appear for the hearing on October 23, 2014[,] even though she had been properly served; therefore, she was in default.

Br. of Appellant at 2. She has not assigned error to the court's finding 2.1, that "[t]he

mother's testimony was not credible," or to any others. CP at 83. The court's remaining

findings are verities on appeal. RAP 10.3(g); In re Interest of Mahaney, 146 Wn.2d 878,

895, 51 P.3d 776 (2002).

Applicable law and standard of review

A motion for default may be made when a party against whom a judgment is

sought has failed to appear. CR 55(a)(l). A party who does not appear in the action

before the motion for default is made is not entitled to notice of the motion. CR 55(a)(3).

For this purpose, an action to permanently terminate parental rights is a new proceeding

and not an extension of the dependency action, so appearance in the dependency action

11 No. 33762-6-111 In re Parental Rights to E.R.D.

does not entitle a party to notice of a motion for default in the termination proceeding. In

re Welfare of S.I., 184 Wn. App. 531, 540, 337 P.3d 1114 (2014), review denied, 183

Wn.2d 1002 (2015).

A court may set aside a default order "[ f]or good cause shown and upon such

terms as [it] deems just." CR 55(c)(l). To establish good cause under CR 55, a party

may demonstrate excusable neglect and due diligence. S.J., 184 Wn. App. at 544

(quoting In re Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999). "A party

moving to vacate a default order is not required to demonstrate a meritorious defense to

establish good cause," but "if a party offers evidence of a meritorious defense, a trial

court more likely abuses its discretion should it fail to vacate a default order." Id.

"[A] parent's failure to respond to notices and summons of a proceeding to

terminate parental rights, in itself, does not preclude the State from obtaining a judgment

permanently terminating that parent's right to the custody and care of his or her child."

In re Dependency of C.R.B., 62 Wn. App. 608, 616, 814 P.2d 1197 (1991). "[A] child's

right to a stable home cannot be put on hold interminably because a parent is absent from

the courtroom and has failed to contact his or her attorney." Id.

We review denial of a motion to vacate an order of default for an abuse of

discretion. S.J., 184 Wn. App. at 543-44. A court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds.

12 No. 33762-6-111 In re Parental Rights to E.R.D.

Even where an order of default has been entered, before a judgment terminating

parental rights can be entered, the court must have a meaningful hearing on the merits of

the case in accordance with statutory requirements for termination. C.R.B., 62 Wn. App.

at 616. Statutory procedural requirements must be satisfied, and factual findings made

must be sufficiently specific to permit meaningful review. It is not enough for a

caseworker to provide testimony parroting the language of the statutory requirements.

Under CR 60, the court may vacate an order or judgment when it results from

procedural irregularity or excusable neglect. CR 60(b )( 1). As with denial of a motion to

vacate an order of default, we review denial of a motion to vacate a judgment for abuse of

discretion. In re Welfare of MG., 148 Wn. App. 781,792,201 P.3d 354 (2009).

Bases for motion

The mother's motion to vacate the order of default and judgment did not identify

its legal basis or the grounds on which she relied. See CP at 40-45. Giving her the

benefit of the doubt, she arguably advanced three bases for relief in the trial court: that

she was not served with notice of the termination trial, that she appeared at the October

23 hearing through Cathy Busha, and excusable neglect. See id. 2 All three contentions

were addressed by the trial court. Its finding 2.3 includes a finding that she did not

2 Had she chosen to do so, the mother might have been able to advance arguments reflected in her assignments of error 3-8 in some form when she moved to vacate. We express no view on that score. But under even the most generous reading of her motion papers and oral argument, none of those errors were asserted below. We decline to consider them for the first time on appeal. See RAP 2.5(a).

13 No. 33762-6-111 In re Parental Rights to E.R.D.

appear for the hearing on October 23 and that she had been properly served. Finding 2.8

includes the trial court's finding that no evidence was presented that would authorize the

court to set aside the judgment pursuant to CR 60(b )( 1) (authorizing vacating on grounds

including inadvertence, surprise, and excusable neglect).

Our appellate review of a trial court's findings is limited to whether they are

supported by substantial evidence. In re Welfare of Ca.R., 191 Wn. App. 601, 608, 365

P .3d 186 (2015). Substantial evidence exists if, when viewing the evidence in the light

most favorable to the prevailing party, a rational trier of fact could find the fact more

likelythannottobetrue. Id. at608-09(quotinglnre WelfareofXT, 174 Wn.App.

733, 737, 300 P.3d 824 (2013). We do not reweigh evidence or reassess witness

credibility.

Proper service. Ms. Brown's testimony is sufficient, standing alone, to support

the trial court's finding that the mother was properly served. It is further supported by

her own and Ms. McCauley's contemporaneous documentation. The only contrary

testimony-the mother's-was found by the court not to be credible. Substantial

evidence supports the trial court's finding that the mother was properly served.

Appearance in the proceeding. The mother argues, conclusorily, that "Ms. Busha

appeared for [the mother]" on October 23, 2014. Br. of Appellant at 6. The only

evidence she cites are Ms. Busha's statements to the court on that occasion, including

Ms. Busha's statements that "I can appear-her behalf' and "I'm willing to represent

14 No. 33762-6-111 In re Parental Rights to E.R.D.

her." Id. (emphasis added) (citing RP (Oct. 23, 2014) at 3-4). But the crux of the

existence of an attorney-client relationship is whether the client believes or intends that

such a relation exists. State ex rel. Slusser v. Billet, 52 Wn. App. 561, 564, 762 P.2d 350

(1988) (citing In re McGlothen, 99 Wn.2d 515,522,663 P.2d 1330 (1983)). Ms. Busha's

"willingness" to appear on October 23, 2014, tells us nothing about the mother's belief or

intention.

Among the evidence that supports the trial court's finding that the mother did not

appear through Ms. Busha on October 23 is the following:

• Maura Brown's testimony on July 30, 2015, that when served, the mother told Ms. Brown she anticipated retaining different counsel;

• The notice and summons for the termination trial, stating, "YOU ARE NOT REPRESENTED BY A LA WYER IN THIS TERMINATION PROCEEDING EVEN IF YOU WERE APPOINTED A LA WYER IN THE PRIOR DEPENDENCY CASE. YOU MUST REAPPLY FOR APPOINTMENT OF A LA WYER IN THIS CASE." CP at 11;

• Ms. Dixon's earlier cited expression of doubt on October 23, 2014, that Ms. Busha represented the mother, which Ms. Busha did not contest;

• The fact that the trial court encouraged Ms. Busha to contact the mother about further representation but Ms. Busha did not then appear in the termination proceeding until contacted by the Office of Public Defense the following spring; and

• The fact that nowhere in Ms. Busha's materials filed with the trial court has she ever asserted or offered evidence that she was in fact representing the mother on October 23, 2014.

Our dissenting colleague identifies three statements made by the Department's

lawyer or the court during the October 23 hearing that he argues treated Ms. Busha as the

15 No. 33762-6-111 In re Parental Rights to E.R.D.

mother's lawyer; ergo, Ms. Busha was the mother's lawyer. First, he points out that the

Department's lawyer claimed the Department had served the termination petition

personally on the mother and "provided her counsel with a courtesy copy of the petition

as well as the notice and summons." RP (Oct. 23, 2014) at 3. The Department does not

say, nor do the clerk's papers reveal, what counsel was given a courtesy copy. As far as

we know, the Department provides courtesy copies of termination paperwork to lawyers

representing parents in a dependency, knowing that no one will be misled since the notice

and summons states that the lawyer will not represent the parent in the termination

proceeding unless reappointed for that purpose. See CP at 11.

Second, the dissent points to the fact that the Department's lawyer stated that Ms.

Busha could later make a motion to set aside a default. The lawyer's entire (and clear)

argument to the court was that Ms. Busha could not act for the mother that day because

she had not been appointed, but would have "an opportunity to make a motion to set the ·

default aside later if the situation changes." RP (Oct. 23, 2014) at 4 (emphasis added).

The statement is consistent with the fact that Ms. Busha did not represent the mother at

the time of the hearing.

Third, the dissent points to the trial court's comment, after a November 13 date

was proposed for continuing the hearing, that "hopefully that will-Ms. Busha, you'll be

able to-have contact with your client, and take whatever steps are necessary." RP (Oct.

23, 2014) at 5. It is manifest from the record of the October 23 hearing as a whole that

16 I No. 33762-6-111 I I In re Parental Rights to E.R.D.

i II the trial court did not view Ms. Busha as currently representing the mother. Reasonably

read, the trial court's statement simply reflected the fact that Ms. Busha was willing and I I had offered to take on the mother's representation and the trial court hoped that she ! would be in contact with the mother. I I I We do not reweigh evidence. The evidence that supports the trial court's finding I I that the mother did not appear through Ms. Busha is far more substantial than these three

pieces of evidence relied on by the dissent.

Excusable neglect. The mother's only other argument made in moving to vacate

the default and judgment was that she had been homeless during the period leading up to

the termination trial, did not always see her mail, lacked a phone, and was on a "downhill

spiral." CP at 43-44. The trial court found that no evidence was presented that would

support vacating the judgment on the basis of excusable neglect. We bear in mind the

trial court's finding in December 2014 that E.R.D. had not lived with her mother since

July 2012 and was benefitting physically, emotionally, and educationally from the

stability and nurturing she was receiving from the foster family that hoped to adopt her.

CP at 37. Particularly given E.R.D.'s needs, the mother's excuses-attributable to issues

for which she had been offered services for over 18 months-are not "excusable" neglect.

Cf Rosander v. Nightrunners Transp., Ltd., 147 Wn. App. 392, 407, 196 P.3d 711 (2008)

(even neglect of a case due to a diagnosed medical disability is not excusable neglect).

Her admission that she was in a nonfunctional downhill spiral into November 2014

17 II f i No. 33762-6-111

I In re Parental Rights to E.R.D.

I reveals that she probably could not have defended against termination at the December

I 2014 trial, reducing the likelihood that the trial court abused its discretion in denying the

motion to vacate. S.J., 184 Wn. App. at 544. 3 I The trial court's findings are supported by substantial evidence. We find no abuse

of discretion in its denial of the motion to vacate.

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.

d?~~ ,} doway,J. ~ 1

I CONCUR:

Pennell, J.

3 The mother's declaration and argument offered before the July 30, 2015 hearing maintained that she was clean and sober beginning in November 2014. But at the July 30 hearing she admitted that even after November 2014, she "had one relapse in treatment and [that] was dealt with." RP (July 30, 2015) at 15.

18 No. 33762-6-111

FEARING, C.J. - (dissenting) I conclude that the mother, Penelope Deaton,

appeared in the parental termination action through her attorney, Cathy Busha.

Therefore, the State needed to have given Ms. Busha notice before entering a default

order of termination. Failure to give notice renders the order void. I respectively dissent

and would reverse the trial court's refusal to vacate the default order.

FACTS

This appeal concerns the parental rights of Penelope Deaton to Esther Deaton.

Both names are fictitious. Esther Deaton was born on June 11, 2004. Penelope Deaton

adopted Esther, when Esther was a baby. Penelope's sister gave birth to Esther. The

pertinent facts of this appeal surround events during the termination proceeding rather

than Penelope Deaton's parenting history.

On March 26, 2013, the juvenile court entered an agreed order of dependency for

Esther Deaton, at which time Esther entered foster care. Penelope Deaton's identified

parenting deficiencies then included untreated substance abuse and untreated mental

health issues. I' . No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

PROCEDURE

On July 24, 2014, the State of Washington filed a petition for termination of the

parent-child relationship between Penelope and Esther Deaton. On August 11, 2014, the

State filed additional, but conflicting, pleadings. The State filed a note for trial setting,

which read, in relevant part:

PLEASE TAKE NOTE that this case will be brought on the trial setting docket for assignment for a trial date on the 27th day of October 2014, at 9:00 a.m. A list of your available trial dates must be filed with the court before the setting date.

Clerk's Papers (CP) at 7 (emphasis added). The State also filed a notice-first set

termination hearing, which declared, in pertinent part:

A first set termination hearing before the court will be heard at the Kittitas County Superior Court, Juvenile Department, located at 205 West 5th Avenue, Ellensburg, WA 98926, on the 23rd day of October, 2014, at the hour of 9:00 a.m.

CP at 9 (emphasis added). Finally, the State filed a notice and summons/order, which

stated:

STATE OF WASHINGTON TO: Name: [Penelope Deaton], mother

I. Notice of Hearing

1.1 You are notified that a petition, a copy of which is attached, was filed with this court alleging that the above-named child is dependent and a permanent termination of the parent-child relationship should occur. A termination petition, if granted, will result in permanent loss of your parental rights. Notice: If your child is placed in out-of-home care, you may be held

2 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

responsible for the support of the child. 1.2 The court has scheduled a fact-finding hearing on October 23, 2014, at 9:00 am, at Kittitas County Superior Court, Juvenile Department, located at 205 West 5th Avenue, Ellensburg, WA 98926. 1.3 The purpose of the fact finding hearing is to hear and consider evidence on the petition. You should be present at this hearing. 1.4 If you do not appear the court may enter an order in your absence permanently terminating your parental rights.

II. Summons/Order to Appear

2.1 You are summoned and required to appear at the hearing on the date, time, and place set forth above.

Notice: Violation of this Order or Summons is Subject to a Proceeding for Contempt of Court Pursuant to RCW 13.34.070.

III. Advice of Rights

3 .1 You have important legal rights, and you must take steps to protect your interest. 3.2 You have the right to a fact-finding hearing before a judge. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to the judge. You should attend this hearing. 3 .3 You have the right to be represented by a lawyer. If you cannot afford a lawyer you have the right to request that the court appoint a lawyer to represent you at public expense. If you qualify, a lawyer will be appointed by the court to represent you. 3 .4 Your lawyer can look at the social and legal files in your case, talk to the supervising agency or other agencies, tell you about the law, help you understand your rights and help you at hearings. 3.5 If you wish to have a lawyer appointed, contact Superior Court Clerk at 509-962-7531 and ask for the Dependency Unit Clerk or appear at the Kittitas County Superior Court Clerk's Office, Kittitas County Superior Court, Juvenile Department, located at 205 West 5th Avenue, Ellensburg, WA 98926. 3.6 YOU ARE NOT REPRESENTED BY A LA WYER IN THIS TERMINATION PROCEEDING EVEN IF YOU WERE APPOINTED A

3 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

LA WYER IN THE PRIOR DEPENDENCY CASE. YOU MUST REAPPLY FOR APPOINTMENT OF A LA WYER IN THIS CASE. IF YOU OR A LAWYER ON YOUR BEHALF DOES NOT APPEAR IN THIS CASE, YOU WILL BE DEF AUL TED AND TERMINATION OF YOUR PARENTAL RIGHTS GRANTED. You may call Ellensburg DCFS for more information about your child. The agency's name and telephone numbers are: Ellensburg DCFS Office, (509) 925-0440

CP at 10-11 (capitalization, underscoring, and boldface print in original). Observe that

the note for trial setting established a hearing date of October 27, 2014, for the purpose of

scheduling a later trial date. The notice-first set termination hearing and the notice and

summons/order established a termination trial of October 23, 2014.

In a return of service, Maura Brown, Penelope Deaton's social worker, averred

that she served Deaton, on August 21, 2014, at 5:15 p.m., with a petition for termination

of parent-child relationship and "a notice and summons/order, a copy of which is

attached." CP at 24. No copy of any document is attached to the return. Penelope

Deaton contends no one served her with paperwork for a termination hearing.

Penelope Deaton did not appear at the October 23, 2014 hearing. Cathy Busha,

Deaton's dependency attorney, was present. We do not know if Ms. Busha was present

in part to assist Penelope Deaton or if her presence was fortuitous. At the beginning of

the hearing, the State of Washington's counsel remarked:

MS. DIXON: ... The Department personally served Ms. [Deaton] with a copy of the petition and notice of filing on August 21st, and provided her counsel with a courtesy copy of the petition as well as the notice and summons.

4 I I! ' i

I I No. 33762-6-III ! In re the Welfare ofE.R.D. (dissent) I I ·, Report of Proceedings (RP) (Oct. 23, 2014) at 3 (emphasis added). The State's attorney i !: did not identify the counsel for Penelope Deaton to whom the State provided a copy of ! the petition, notice, and summons, but we do not know of any other attorney who ever

represented Deaton other than Cathy Busha.

During the October 23 hearing, the following colloquy occurred between Cathy

Busha and the court:

MS. BUSHA: Your Honor, I've been representing [P.D.]-the dependency for quite a long time. She has been in contact with me. I'm not sure why she's not here today. THE COURT: Oh. MS. BUSHA: However, I can appear-her behalf-and we can set dates for the termination. I know she does not want her parental rights terminated-. We had been working towards a guardianship and that fell through- THE COURT: Oh. MS. BUSHA:-(inaudible) with that. So I would ask that there not be a default today. !-(inaudible) I'm willing to represent her, and-maybe we can work on dates for the trial. THE COURT: Uh-huh. Okay.

RP (Oct. 23, 2014) at 3-4. We do not know if the trial court's remark of "okay" meant

that the court appointed Cathy Busha to represent Penelope Deaton. Later comments by

the trial court show that his comment was not approval of Ms. Busha' s request that the

court refrain from entering a default against Deaton.

During the October 23 hearing, the trial court next listened to the State's attorney:

MS. DIXON: Your Honor, I don't think there was an affirmative request for counsel or any indication that she has asked Ms. Busha to

5 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

represent her today. We are asking for the order of default given that we have a termination trial was already set for today I'm asking (inaudible) your Honor, in regards to Ms. [Deaton] so that would give Ms. Busha an opportunity to make a motion to set the default aside later if that situation changes. But today I'm asking that the court- THE COURT: I'll do that. All right.

RP (Oct. 23, 2014) at 4.

After hearing from Esther Deaton's guardian ad litem, the trial court next asked

the State's counsel:

THE COURT: ... And-do you have a date in mind, Ms. Dixon? MS. DIXON: Your Honor, ifwe can just set it over to the next docket- THE COURT: Okay. MS. DIXON:-11/13. THE COURT: Sounds good. And hopefully that will-Ms. Busha, you'll be able to---have contact with your client, and take whatever steps are necessary. Okay? MS. DIXON: Thank you, your Honor.

RP (Oct. 23, 2014) at 5 (emphasis added). Cathy Busha did not answer the court's

question of "okay?" The State took the position that Ms. Busha was not Penelope

Deaton's attorney, yet the State probably referred to Ms. Busha as Deaton's "counsel"

and the trial court referred to Deaton as Ms. Busha's "client."

The October 23 colloquy suggests that the court scheduled a trial for November

13. Nevertheless, on October 29, 2014, the superior court administrator sent a notice of

trial date, scheduling the trial on the termination petition to begin January 21, 2015. The

notice indicated that the administrator sent a copy to Penelope Deaton, but no copy to

6 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

Cathy Busha. The postal service returned to the court administrator the notice to Deaton

on the basis that Deaton had moved and left no forwarding address. On November 5,

2014, the trial court entered a written order adjudging Penelope Deaton to be in default.

On November 21, 2014, the State of Washington's counsel filed a notice resetting

the termination petition trial for December 11, 2014. We do not know why the State's

counsel sent the notice of trial, when the court administrator sent the earlier notice. The

State did not send a copy of the new trial setting to Penelope Deaton or Cathy Busha.

On December 11, 2014, the trial court conducted a termination trial. Penelope

Deaton and Cathy Busha were absent. We do not know how long the hearing lasted. The

transcript of testimony continues for sixteen pages.

At the conclusion of the trial, the court entered findings of fact, conclusions of

law, and an order of termination. On December 18, 2014, the trial court entered amended

findings of fact, conclusions of law, and order terminating the parent-child relationship.

Pertinent to this appeal the trial court found:

1.9 All services ordered under RCW 13.34.136 have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided to the parents in an express and understandable manner .... 1.10 The mother's parental deficiencies have not been corrected .... 1.11 There is little likelihood that conditions will be remedied so that the child can be returned to the mother in the near future .... 1.12 The mother is currently unfit to parent because she continues to view herself and [Esther Deaton] as "victims" of the Department and has failed to remediate parental deficiencies in order to provide [Esther Deaton]

7 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

with a safe and secure home environment. ... 1.13 Continuation of the parent-child relationship clearly diminishes the child's prospects for integration into a stable and permanent home .... 1.14 Based on the foregoing findings of fact, termination of parental rights is in [Esther Deaton's] best interests ....

CP at 27-30.

Penelope Deaton last visited with her daughter Esther on December 18, 2015.

According to Penelope, the visit ended early. Maura Brown then handed Penelope an

envelope and told Penelope that the court had terminated her parental rights. Penelope

declared that she would appeal the termination. Brown responded that the time had

expired for an appeal.

Penelope Deaton thereafter contacted the local Office of Public Defense in order

to secure an attorney to assist her in the termination case. The office assigned Cathy

Busha to represent Deaton.

On March 18, 2015, Penelope Deaton filed a motion to set aside the default

termination order. Cathy Busha signed the motion as counsel for Deaton. In support of

the motion, Ms. Busha signed a declaration, in which she averred that Penelope called her

and said she was unaware of the date of any termination trial. In support of her motion,

Penelope Deaton declared that she lacked knowledge of any termination trial court

hearing.

In support of her motion to vacate the default order, Penelope Deaton also swore:

I have made many changes in my life. At the time of the

8 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

dependency and termination trial, I was having a great deal of difficulty in my life and was homeless for some months. I was on a downhill spiral. I did not see some of my mail nor had a phone sometimes. I am now staying with a roommate who is my sober and support person. He has helped may [sic] people who have addiction problems. When I learned that my parental rights had been terminated and that there had been a court hearing, I contacted the Office of Public Defense and spoke with Amelia Watson. I could not afford an attorney and am considered indigent at this time. I asked if Ms. Busha could represent me again. The[y] indicated that they would call her. I then received a call from Ms. Busha's office in order to set up an appointment. I have been clean and sober since November, 2014. I am attending group sessions and drug treatment at ADDS. I have no excuses for my behavior and I am taking full responsibility for my actions. I do not blame anyone except myself. I wish to demonstrate to the court and DSHS [department of social and health services] that I am able to remain sober and do the right things for my daughter.

CP at 43-44. Deaton filed no memorandum oflaw in support of her motion to vacate.

On July 30, 2015, the trial court conducted a testimonial hearing in order to

resolve the dispute between Penelope Deaton and Maura Brown as to whether Brown

served Deaton, on August 21, 2014, with the termination petition and hearing notice.

During the hearing, Maura Brown testified that, on August 21, she went to the Caring

Hearts Visitation Facility to see Penelope Deaton. She went to the facility, because she

had tried to contact Deaton elsewhere with no success, and Brown knew that Deaton

would visit with her daughter at the facility on August 21. Brown lacked a current

address for Deaton. According to Brown, she served Deaton with a notice and summons

for a termination trial at the facility. She also told Deaton of the date for the trial and

encouraged Deaton to contact her attorney. According to Brown, Deaton acted cordially

9 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

and stated that she sought to "procure other legal representation." RP (July 30, 2015) at

8. The following morning, Maura Brown wrote a note in her case file confirming the

interaction with Deaton.

Penelope Deaton testified, during the evidentiary hearing, that, on August 21,

2014, Maura Brown handed her a sealed envelope. Deaton did not then open the

envelope because she did not want Esther to see court papers. Deaton opened the

envelope when she left the visitation facility and entered her car. The envelope contained

paperwork for a permanency planning hearing. Deaton added that she would have

attended any termination hearing and objected to termination of her parental rights.

After the completion of testimony on July 30, 2015, Cathy Busha, counsel for

Penelope Deaton argued, in part:

I was here when I saw-for the termination trial when I saw her name on the docket. I had not been appointed. At that point I did ask Your Honor for a continuance because I was surprised that she was not here, because I know her love for her daughter and I know she always has been in front of this court saying I want you to hear my side. It has been many, many times. So I would ask that this default be set aside. The court has authority to do that, so that Ms. [Deaton] can present her side of the story. I mean, this is termination of parental rights. This is big. So she is just asking for due process. She's asking for a trial, and I believe I think she has the right to do so, Your Honor.

RP (July 30, 2015) at 21-22.

At the conclusion of the July 30 evidentiary hearing, the trial court commented

that it found the testimony of Maura Brown credible and that it concluded Brown served

10 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

Penelope Deaton with termination proceedings pleadings. The trial court denied

Deaton's motion to vacate the default judgment. The court did not sign a written order

denying the motion until October 7, 2015.

On August 26, 2015, Penelope Deaton filed a notice of appeal of the order

regarding termination of the parent-child relationship entered on October 23, 2014, by

default. The notice of appeal noted that Deaton filed a motion to set aside the default, but

the trial court confirmed the default judgment. Because Deaton filed the notice of appeal

before entry of the written order denying the motion to vacate, this court directed the

parties to address whether Deaton could appeal. Our court commissioner ruled that:

This Court has determined that the mother may appeal as a matter of right the October 7, 2015 Order. See RAP 2.2(a)(l0). Accordingly, IT IS ORDERED, the matter is appealable as a matter of right.

Commissioner's Ruling, In re Termination of E.R.D., No. 33762-6-III, at 1 (Wash. Ct.

App. Oct. 21, 2015).

LAW AND ANALYSIS

On appeal, Penelope Deaton assigns error to the trial court's refusal to set aside

the default order and the default order itself. She contends that the trial court mistakenly

failed to appoint Cathy Busha as her counsel at the October 23, 2014 hearing, erroneously

agreed, on October 23, to enter a default when her counsel tried to appear on her behalf,

incorrectly signed an order of default on November 5, 2014, when the State failed to give

five days' notice to her counsel of the entry of the order, mistakenly refused to grant her

11 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

motion to vacate when the order of default was void, and wrongly refused to vacate the

default order on the basis that insufficient evidence supported the termination of her

parental rights. These arguments implicate a parent's right to appointed counsel during a

parental termination proceeding. The argument that Cathy Busha appeared on Deaton's

behalf overlaps with the contention that the trial court should have appointed Ms. Busha

as counsel. I agree with all but the last of Penelope Deaton' s assignments of error.

The State of Washington erects two procedural obstacles to this court reaching the

merits of Penelope Deaton's arguments. Normally an opinion would first address those

procedural arguments. Nevertheless, because the resolution of the merits dictates the

response to the State's appellate barriers, I address the merits first.

Issue 1: Did Cathy Busha appear on behalf ofPenelope Deaton at the October 23,

2014 hearing?

Answer 1: Yes.

Cathy Busha told the trial court, during the October 23 hearing, that she

represented Penelope Deaton in the dependency action, that she wished to appear on

Deaton's behalf, that Deaton did not wish her parental rights terminated, that the court

should set a date for trial, and that the trial court should not enter a default order. The

State responded that it was not aware that Deaton wished Ms. Busha to represent her at

the October 23 hearing. The trial court did not expressly rule that Cathy Busha had not or

could not appear on behalf of Penelope Deaton. Nevertheless, steps taken at the October

12 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

23 hearing and later suggest that the trial court did not consider Ms. Busha to have

appeared on behalf of Deaton. The State proceeded as if no appearance occurred.

The first sentence ofRCW 4.28.210 declares:

A defendant appears in an action when he or she answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his or her appearance.

The statute's list of actions constituting an appearance is not exclusive and informal acts

can constitute appearance. City ofDes Moines v. Personal Property Identified as

$81,231 in US. Currency, 87 Wn. App. 689,696,943 P.2d 669 (1997). Because default

judgments are disfavored, the concept of "appearance" is to be construed broadly when a

party moves to vacate a default order. Colacurcio v. Burger, 110 Wn. App. 488, 494-95,

41 P.3d 506 (2002); City ofDes Moines v. Personal Property Identified as $81,231 in

United States Currency, 87 Wn. App. at 696.

Because of the nature of a parental termination proceeding, a court should abhor a

default and construe an appearance broadly to the extreme. A parent holds a fundamental

liberty interest, protected by the Fourteenth Amendment to the United States

Constitution, in the care, custody and control of a child. Santosky v. Kramer, 455 U.S.

745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Pierce v. Society of Sisters, 268 U.S.

510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390,

399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). Courts undertake a grave responsibility when

they deprive parents of the care, custody and control of their natural children. In re

13 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

Welfare of Sego, 82 Wn.2d 736,738,513 P.2d 831 (1973). Therefore, terminating

parental rights is one of the severest of state actions and implicates fundamental interests.

In re Welfare ofJM, 130 Wn. App. 912, 921, 125 P.3d 245 (2005). The child also has an

interest in preventing the erroneous termination of its relationship with her natural

parents. Santosky v. Kramer, 455 U.S. at 765.

A party may appear through an attorney. Dlouhy v. Dlouhy, 55 Wn.2d 718, 721-

22, 349 P.2d 1073 (1960). Typically, the appearance is by an attorney. The State

commented, at the October 23 hearing, that Cathy Busha lacked authority to appear on

behalf of Penelope Deaton. Nevertheless, an attorney who appears in court is presumed

to be authorized to represent the client, and the attorney need not provide proof of

authorization. Parkway Bank & Trust Co. v. Korzen, 2013 IL 130380, 2 N.E.3d 1052,

1074, 377 Ill. Dec 771; Shields v. QHG of Springdale, Inc., 2009 Ark. 88, 302 S.W.3d

598, 602; Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So. 2d 45, 54 (Ala. 2003); Streit v.

Covington & Crowe, 82 Cal. App. 4th 441,446, 98 Cal. Rptr. 2d 193 (2000); Gray v.

First National Bank of Chicago, 388 Ill. 124, 129, 57 N.E.2d 363 (1944). This court has

twice held that an attorney, who lacked authority to represent a client because he was not

licensed in Washington State or held a conflict of interest, did not negate an appearance

on behalf of the client by the attorney. Servatron, Inc. v. Intelligent Wireless Products,

Inc., 186 Wn. App. 666, 676, 346 P .3d 831 (2015); Sacotte Construction, Inc. v. National

Fire & Marine Insurance Co., 143 Wn. App. 410, 416, 177 P.3d 1147 (2008).

14 No. 33762-6-111 In re the Welfare of E.R.D. ( dissent)

The attorney appointed to represent a parent in a dependency action is generally

appointed to represent the parent in a parental termination proceeding. In re Welfare of

S.I., 184 Wn. App. 531, 559, 337 P.3d 1114 (2014), review denied, 183 Wn.2d 1002, 349

P.3d 857 (2015) (Fearing, J. dissenting). For this reason alone, Cathy Busha should have

been allowed to appear on behalf of Penelope Deaton.

One might emphasize that Cathy Busha, on October 23, 2014, did not employ the

words "I am appearing on behalf of Penelope Deaton," but instead remarked that she

"can appear." By emphasizing the language used, one might argue there was no

appearance, only an expression of an ability to appear. Such a conclusion, however,

promotes form over substance. Ms. Busha specifically expressed a desire to appear and

stated that Deaton wished to oppose the termination. Again, Ms. Busha was Deaton's

counsel in the dependency action.

At the hearing on the motion to vacate the default order, Maura Brown testified

that Penelope Deaton told her, on August 21, 2014, that she would hire an attorney, other

than Cathy Busha. Nevertheless, this testimony was not known by the trial court during

the October 23 hearing. When Deaton learned of the default order, she went to the Office

of Public Defense since she was indigent and could not hire an attorney on her own. Ms.

Busha thereafter represented her. Had Deaton sought an attorney on October 23, she

likely would have requested and received Cathy Busha.

The State equates this case to Welfare of S.I., in which this court found the lack of

15 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

an appearance. Nevertheless, SJ is both factually and legally distinct. Unlike the

mother in SJ, Penelope Deaton appeared, through Cathy Busha, at the initial termination

hearing. In addition, Deaton is not arguing, as did S.I.'s mother, that her many

appearances during the dependency constitute an appearance.

In re Dependency ofC.R.B., 62 Wn. App. 608, 814 P.2d 1197 (1991) controls this

appeal. In C.R.B., the State petitioned to take C.R.B. from his mother on August 28,

1989, when he was three days old. On January 31, 1990, the State filed a petition for

termination of parental rights. Concurrently the State filed a "Certification in Support of

Notice by Publication." C.R.B., 62 Wn. App. at 611. The trial court set the termination

hearing for May 9, 1990. The mother failed to appear at that hearing. Nevertheless, her

attorney Virginia Marshall appeared on her behalf and informed the court that she had not

had contact with the mother since February of 1990, at which time the mother expressed

an interest in having the child returned to her care and her willingness to participate in

court-ordered services. The court held that, since the mother communicated her intention

of contesting the termination to her attorney only two months earlier, and her attorney

contested the action at the hearing, the mother "appeared" under CR 55(a)(l).

Comments by the State and by the trial court, during the October 23 hearing,

conflict with the State's position that Cathy Busha could not appear for Penelope Deaton

and conflict with any trial court ruling that Ms. Busha could not appear. The State's

counsel stated that the State had delivered a copy of the termination petition to Deaton's

16 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

counsel. The only person ever identified as Deaton's counsel in the course of the

dependency and termination actions was Cathy Busha. The State should not be free to

represent to the court that Ms. Busha serves as Deaton's counsel and then deny the

existence of an attorney-client relationship between the two. During the October 23

hearing, the State's attorney also mentioned that "Ms. Busha [could] ... make a motion

to set the default aside later if that situation changes." RP (Oct. 23, 2014) at 4. This

comment presupposes that Cathy Busha is counsel for Penelope Deaton.

When scheduling a hearing date, the trial court commented: "And hopefully that

will-Ms. Busha, you'll be able to-have contact with your client, and take whatever

steps are necessary." RP (Oct. 23, 2014) at 5 (emphasis added). This comment reflects

that the trial court, in addition to the State, considered Ms. Busha to be Penelope

Deaton's counsel. Thus, Ms. Busha should have been able to appear for Deaton.

Being a party's lawsuit attorney is similar to being pregnant. One is either

pregnant or not pregnant. One is either a party's lawsuit attorney or not the party's

attorney. The trial court and the State should not have considered Penelope Deaton the

client of Cathy Busha for some purposes, but not for the purpose of Ms. Busha entering

an appearance on behalf of Deaton.

This writer dissented in In re Welfare of S.I., 184 Wn. App. 531 (2014) and wrote

that an appearance in a dependency action should constitute an appearance in the related

termination proceeding. For this reason alone, the trial court in this appeal should have

17 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

concluded that Penelope Deaton' s appearance in her dependency action also constituted

an appearance in the termination proceeding.

Issue 2: Whether the trial court should have appointed Cathy Bus ha as counsel for

Penelope Deaton, during the October 23, 2014 hearing, when Busha requested to appear

and represent Deaton?

Answer 2: Yes.

Penelope Deaton contends she was denied her statutory and constitutional right to

legal counsel. She argues that Cathy Busha's appearance on her behalf triggered her

right under RCW 13.34.090(2) to counsel in the termination action. The State responds

that Deaton did not have the right to counsel because she failed to ask for counsel before

the October 23 hearing. I agree with Penelope Deaton.

Terminating parental rights is one of the severest of state actions and implicates

fundamental interests. ML.B. v. S.L.J., 519 U.S. 102,116,117 S. Ct. 555,136 L. Ed. 2d

4 73 ( 1996). When the state moves irrevocably to sever the parent-child bond, the rights

of parents to protection from unwarranted usurpation by the state are guaranteed by the

Fourteenth Amendment. ML.B. v. S.L.J., 519 U.S. at 116. When the government seeks

to terminate parental rights, the state must ensure that judicial proceedings are

fundamentally fair. Lassiter v. Department of Social Services of Durham County, 452

U.S. 18, 33-34, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). In Washington, fundamental

fairness requires that the state appoint counsel for indigent parents. In re Welfare ofJ.M,

18 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

130 Wn. App. at 921 (2005)

In Washington, the constitutional right to counsel attaches to indigent parents in

termination proceedings by way ofRCW 13.34.090(2). In re Dependency of Grove, 127

Wn.2d 221,232, 897 P.2d 1252 (1995). This right derives from the due process

guaranties of article I, section 3 of the Washington Constitution as well as the Fourteenth

Amendment. In re Welfare ofLuscier, 84 Wn.2d 135, 138, 524 P.2d 906 (1974). RCW

13.34.090 declares, in part:

(2) At all stages of a proceeding in which a child is alleged to be dependent, the child's parent, guardian, or legal custodian has the right to be represented by counsel, and if indigent, to have counsel appointed for him or her by the court. Unless waived in court, counsel shall be provided to the child's parent, guardian, or legal custodian, if such person (a) has appeared in the proceeding or requested the court to appoint counsel and (b) is financially unable to obtain counsel because of indigency.

(Emphasis added.)

The State argues that Penelope Deaton never appeared nor requested counsel be

appointed. I have already discussed that Deaton appeared. Deaton appeared through

Cathy Busha and thus satisfied the first prong of RCW 13.34.090.

Turning to the second prong, RCW 10.101.020 controls the determination of

indigence. The statute states, in part:

A determination of indigency shall be made for all persons wishing the appointment of counsel in criminal, juvenile, involuntary commitment, and dependency cases.

RCW 10.101.020(1 ). This determination must occur at either the initial contact or the

19 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

earliest possible time allowed by the circumstances. RCW 10.101.020(3).

If a determination of eligibility cannot be made before the time when the first services are to be rendered, the court shall appoint an attorney on a provisional basis.

RCW 10.101.020(4).

We have no evidence about Penelope Deaton's financial ability to obtain counsel

other than knowledge that Deaton received appointed counsel in the dependency action.

Deaton argues that, because counsel had been appointed before, counsel would be

appointed again. Such may have occurred. Regardless, because Deaton appeared, albeit

through Cathy Busha, the trial court was required to appoint provisional counsel pursuant

to RCW 10.101.020(4). Therefore, the trial court denied Deaton's constitutional and

statutory right to counsel.

The State suggests that Cathy Busha would face an ethical dilemma, if appointed

on October 23 to represent Penelope Deaton, because Ms. Busha did not know what

position Deaton wished to take regarding the termination petition. The record shows

otherwise. Deaton had told Ms. Busha that Deaton wished to fight the termination.

The State relies on In re the Dependency ofA.G., 93 Wn. App. 268,968 P.2d 424

(1998) and In re the Welfare of Parzino, 22 Wn. App. 88, 587 P.2d 201 (1978) for

support of the argument that Cathy Busha would have faced an ethical challenge if

appointed at the October 23 hearing. Nevertheless, in A.G., the ethical dilemma arose at

the termination hearing on the merits, not the initial hearing. The mother had not told the

20 No. 33762-6-III In re the Welfare of E.R.D. ( dissent)

attorney she wished to resist the termination petition. The court allowed the attorney to

represent the mother until the termination trial, despite a lack of communication between

attorney and client. Welfare ofParzino holds the same dissimilarities as Dependency of

A.G.

The State's analysis of an ethical dilemma would render the appointment of a

defense attorney for an indigent accused difficult, if not impossible. The trial court

appoints the attorney before the client tells the attorney whether the client wishes to resist

the criminal charges. The client usually discloses his wishes only after the attorney later

meets with the client and discusses the case. Similarly, the trial court should have

appointed Cathy Busha as the attorney for Penelope Deaton. Ms. Busha could then have

attempted to communicate with Deaton and confirmed Deaton's desires. If Deaton failed

to communicate with Ms. Busha, Ms. Busha could have withdrawn at a later date.

Issue 3: Whether the trial court should have vacated the default order that

terminated Penelope Deaton 's parental rights?

Answer 3: Yes.

The deprivation of counsel throughout the termination petition process resulted in

Penelope Deaton defaulting and her parental rights being terminated without any defense.

The trial court eventually signed a default order and conducted a termination trial without

notice to Deaton's counsel, Cathy Busha, who had sought to appear on Deaton's behalf.

Because of the lack of notice, the default order should have been vacated on Deaton's

21 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

motion.

Under CR 55(a)(3), if a party has "appeared" before a motion for default has been

filed, that party is entitled to notice of the motion before the trial court may enter a valid

default order. Smith v. Arnold, 127 Wn. App. 98, 103, 110 P.3d 257 (2005).

Consequently, if a defendant has appeared but not given proper notice prior to entry of

the order of default, the defendant is entitled to vacation of the default judgment as a

matter of right. Tiffin v. Hendricks, 44 Wn.2d 837,847,271 P.2d 683 (1954);

Professional Marine Co. v. Those Certain Underwriters at Lloyd's, 118 Wn. App. 694,

708, 77 P.3d 658 (2003); Colacurcio v. Burger, 110 Wn. App. at 497 (2002); In re

Marriage ofDaley, 77 Wn. App. 29, 31, 888 P.2d 1194 (1994); Shreve v. Chamberlin, 66

Wn. App. 728,731,832 P.2d 1355 (1992). Ifthe default order is void, the court need not

decide whether the motion to vacate is brought within a reasonable time, and whether the

defendant has a defense to the claim. Colacurcio v. Burger, 110 Wn. App. at 497; Leen

v. Demopolis, 62 Wn. App. 473, 477-78, 815 P.2d 269 (1991). The court has a

nondiscretionary duty to vacate a void judgment, and judgment must be vacated

regardless of the lapse of time. In re Dependency ofA.G., 93 Wn. App. at 276 (1998);

Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323, 877 P.2d 724 (1994).

Default judgments are disfavored because it is the policy of the law that

controversies be determined on the merits rather than by default. Griggs v. Averbeck

Realty, Inc., 92 Wn.2d 576,581, 599 P.2d 1289 (1979); Dlouhy v. Dlouhy, 55 Wn.2d at

22 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

721 ( 1960); Colacurcio, 110 Wn. App. at 494. The fundamental guiding principle

should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.

Griggs, 92 Wn.2d at 582 (quoting Widiucus v. Sw. Elec. Coop., Inc., 26 Ill. App. 2d 102,

109, 167 N.E.2d 799 (1960)).

The majority comments that we review the trial court's decision for abuse of

discretion. Consistent with this comment, under many, if not most, circumstances, the

decision whether to vacate a default judgment is within the trial court's sound discretion.

Little v. King, 160 Wn.2d 696, 709, 161 P.3d 345 (2007); Griggs v. Averbeck Realty, 92

Wn.2d at 582; Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978). Nevertheless,

a court has a nondiscretionary duty to vacate a void judgment. Allstate Ins. Co. v. Khani,

75 Wn. App. at 323 (1994); Leen v. Demopolis, 62 Wn. App. at 478 (1991); In re

Marriage of Markowski, 50 Wn. App. 633,635, 749 P.2d 754 (1988).

During the October 23, 2014, hearing, Cathy Busha heard the trial court schedule a

termination trial for November 13, 2014. Still Ms. Busha, according to the court, had no

right to appear at the hearing, so such notice held no impact. Just as important, the State,

without notice to Ms. Busha, changed the trial date. Because of a lack of notice to

Penelope Deaton and her counsel, the trial court held no discretion but to vacate the

default order of termination of parental rights.

23 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

The State emphasizes that, during the October 23 hearing, the trial court

commented to Cathy Busha that, before any later hearing, she "will-Ms. Busha, you'll

be able to--have contact with your client, and take whatever steps are necessary. Okay?"

RP (Oct. 23, 2014) at 5 (emphasis added). The State may suggest that the trial court's

comment cures any defects in later entering a default order of termination. Nevertheless,

the trial court did not directly instruct Busha to attempt to locate Penelope Deaton. Cathy

Busha did not answer the court's question. Despite the trial court's referring to Penelope

Deaton as Ms. Busha's client, the trial court had refused to let Ms. Busha appear for

Deaton. We have no evidence that Ms. Busha sought to locate Deaton, and Ms. Busha

would hold no reason to seek the location since no attorney-client relationship had been

established.

The State writes that "[i]t [the trial court] declined to sign the [default] order on

October 23, 2014." Resp't's Br. at 12. From this, the State implies that the trial court

wanted to give more time for someone to locate Penelope Deaton before entering a

default order. The record does not support the assertion that the trial court "declined" to

sign any default order on October 23. To the contrary, the State, during the hearing,

asked for an order of default, and the trial court responded: "I'll do that." RP (Oct. 23,

2014) at 4. The State, on October 23, never suggested any delay in presentation of an

order of default in order to accommodate Deaton. Instead, the State added that Deaton

could seek to vacate the default order at a later date. For all we know, the delay in

24 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

signing the default order until November 5 was the result of a delay in paperwork.

The State also writes that:

Additionally, the trial court held two substantive hearings on the mother's motion to vacate: one on July 23, 2015 to address the mother's motion, and another one on July 30, 2015 to specifically determine whether she had been properly served with a copy of the termination petition and notice and summons. See RP (Jul. 23, 2015) at 7-13; see RP (Jul. 30, 2015) at 2-23. The mother was afforded notice and a meaningful hearing, both on the merits of the termination petition and on the mother's motion to vacate; her due process rights were not violated.

Resp't's Br. at 35-36. This passage conveys the false impression that the trial court again

reviewed the merits of the termination petition, with Penelope Deaton present and with

Deaton granted the opportunity to challenge the evidence against her, on July 23 and 30.

Although Deaton's counsel mentioned that Deaton had changed her behavior, the court

did not conduct any hearing on the merits. The judge only addressed whether the default

order should be vacated.

I do not base my dissent on confusion in the pleadings served on Penelope Deaton.

I comment, however, that the note for trial setting served on Deaton established a hearing

date of October 27, 2014, for the purpose of scheduling a later trial date. The notice-first

set termination hearing and the notice and summons/order established a termination trial

of October 23, 2014. The reader of the pleadings would face confusion as to the date to

appear in court.

Issue 4: Whether this appeals court may review the propriety of the entry of the

25 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

default order?

Answer 4: Yes, but whether the court can review the default order is immaterial.

Penelope Deaton also appealed the denial of her motion to vacate and this denial must

be reversed.

As previously noted, the State constructs several obstacles to this court reaching

the merits of Penelope Deaton's argument that her constitutional rights were denied when

the court entered an order of default. First, the State argues that the only order this

appellate court may review is the order denying the motion to vacate the default

judgment. According to the State, Deaton failed to timely appeal the earlier default

order, and, thus, this court may not review the order of default. I disagree.

The State relies on Bjurstrom v. Campbell, 27 Wn. App. 449,618 P.2d 533

( 1980), in which this court held that an appeal from denial of a motion to vacate a default

judgment is limited to the propriety of the denial not the impropriety of the underlying

judgment. This court's majority cites other decisions for the same rule. In re Parenting

& Support ofC.T., 193 Wn. App. 427,435,378 P.3d 183 (2016); In re Dependency of

JMR., 160 Wn. App. 929, 938-39 n.4, 249 P.3d 193, review granted in part, 172 Wn.2d

1017, 262 P .3d 64 (2011 ). This rule has no application in our appeal because Penelope

Deaton did not limit her appeal to the order denying her motion to vacate. In all three

earlier decisions, the appellant only appealed the order denying the motion to vacate. The

decisions do not preclude the appellant from appealing both an order denying a motion to

26 No. 33762-6-III In re the Welfare ofE.R.D. (dissent)

vacate and a previous order entered by the trial court. No rule or decision precludes an

appellant from appealing other orders in addition to an order denying a motion to vacate a

default order. Any such rule would be unfair and could preclude this court from

addressing an error in the trial court.

Penelope Deaton's notice of appeal expressly challenges the entry of the default

order in October 2014. In her motion for accelerated review, she assigns error to the

failure of the trial court to appoint her counsel, the failure of the State to provide her

counsel five days' notice before entering a default, and the entry of the default order. In

her notice of appeal, she also impliedly sought review of the order denying her motion to

vacate when she mentioned the later order in her appeal notice. She assigns error, in her

motion, to the trial court's failure to vacate the default order.

The majority impliedly concludes that Penelope Deaton may not challenge the

November 2014 termination order by default because our court commissioner's ruling on

appealability included the language "the mother may appeal as a matter of right the

October 7, 2015 Order [denying vacation of default]." Majority at 10-11. Nevertheless,

the court commissioner did not rule that Deaton could not challenge any other order, or

that a challenge to the order denying the motion to vacate did not include a challenge to

the default order. The court commissioner's ruling came in the context of determining l appealability of the case as a whole, not in the context of what decisions Deaton could

appeal.

27 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

Penelope Deaton timely appealed the order of default entered on October 23,

2014. A party need not file a notice of appeal within thirty days of every appealable

order or judgment but may instead await the final decision in the case. Fox v. Sunmaster

Products, Inc., 115 Wn.2d 498, 505, 798 P.2d 808 (1990). If a timely notice of appeal is

filed from a final decision, the appellate court will review prior orders and judgments,

even those which were immediately appealable, if they prejudicially affect the final

judgment. Fox v. Sunmaster Products, Inc., 115 Wn.2d at 505. It makes no sense to

mandate an immediate appeal from the earlier decision because to do so would only

encourage multiple appeals. Franz v. Lance, 119 Wn.2d 780, 781, 836 P.2d 832 (1992).

Penelope Deaton's timely appeal of the denial of the motion to vacate the default order of

termination rendered timely her appeal of the default order.

In the end, the dispute over whether Penelope Deaton may appeal the entry of the

default order lacks any relevance. The State does not contend that Deaton may not

appeal the denial of Deaton's motion to vacate the default order. Ample grounds exist to

hold that the trial court erred when denying the motion to vacate.

Issue 5: Whether Penelope Deaton may raise on appeal the arguments that Cathy

Busha appeared on her behalf and the State denied her constitutional right to an

attorney, when Deaton did not raise those contentions during the litigation of her motion

to vacate the default order?

Answer 5: Yes, because the arguments entail lack ofjurisdiction and manifest

28 No. 33762-6-111 In re the Welfare ofE.R.D. (dissent)

constitutional error.

The State may complain that Penelope Deaton did not raise below, during her

motion to vacate, her argument that she had made an appearance and that the trial court

should have appointed her counsel when Cathy Busha spoke on her behalf. The record is

not clear as to whether Deaton raised the contention below. Her major argument was that

she had not been served with process. She filed no brief in support of her motion.

Nevertheless, her counsel, during the motion to vacate hearing, remarked that, during the

October 23, 2014 hearing, she sought a continuance of any attempt to enter a default and

Deaton, by her motion to vacate, sought due process.

Regardless, of whether Penelope Deaton raised her salient arguments at the time

of the motion to vacate, we should still entertain the arguments. As shown previously, I the arguments concern well established rules that, as a matter of due process, she is

entitled to appointment of counsel and the default judgment should not have been entered

without notice to Deaton through counsel. Thus, her contentions, if new, constitute

manifest constitutional error and defeat the trial court's jurisdiction.

RAP 2.5(a) reads:

The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: ( 1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.

RAP 2.5(a) allows an appellant to raise for the first time "manifest error affecting a

29 No. 33762-6-III In re the Welfare of E.R.D. (dissent)

constitutional right" and "lack of trial court jurisdiction." Constitutional errors are

treated specially under RAP 2.5(a) because they often result in serious injustice to the

accused and may adversely affect public perceptions of the fairness and integrity of

judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).

Whether a party received notice of a default hearing is a question of due process

which is of constitutional magnitude. In re C.R.B., 62 Wn. App. at 614-15 (1991).

Under CR 55(a)(3) and CR 55(f)(l), a trial court acts without authority when it purports

to enter a default judgment without notice against a party who has previously appeared.

Shreve v. Chamberlin, 66 Wn. App. at 731 (1992). A trial court's lack of jurisdiction

may be raised for the first time on appeal. In re Estate ofAlsup, 181 Wn. App. 856, 868,

327 P.3d 1266 (2014).

The majority relies on the rule that the reviewing court will not entertain an

argument in support of a motion to vacate a default judgment that was not raised before

the trial court. Majority at 13 n.2. This rule does not apply, however, to a claim for first

time on appeal that the trial court lacked jurisdiction or to issues affecting fundamental

constitutional rights. State v. Santos, 104 Wn.2d 142, 145-46, 702 P.2d 1179 (1985).

~ (J Fearing,~\

t