O
Cox, J. — Mary Spehar appeals the termination of her parental rights to
her son, M.B.S. The trial court did not abuse its discretion by denying her motion
to appoint M.B.S. independent counsel. The court did not prematurely consider
M.B.S.'s best interests in determining Spehar's fitness as a parent. And there
was sufficient evidence to prove that continuation of the parent-child relationship
diminished this child's prospects for early integration into a stable and permanent
home. We affirm.
Mary Spehar gave birth to M.B.S. in April 2006 and cared for him on her
own. Since then, M.B.S. has struggled with behavioral problems, including
aggressive and uncontrolled outbursts, directed at himself and others. No. 74002-4-1/2
Therapists have diagnosed him with attention deficit hyperactivity disorder,
oppositional defiant disorder, and autism spectrum disorder.
Concerned about her son, Spehar took him to a therapist in 2011 who
spoke with her about parenting techniques and medication. The therapist saw
M.B.S. intermittingly for two years, during which time M.B.S. exhibited some
improvement.
But Spehar has issues of her own. Authorities reported seeing her
threaten and yell at her son, and she seemed unable to maintain a hygienic and
orderly home. She exhibited signs of paranoia and what would later be
diagnosed as attention deficit hyperactivity disorder, bipolar disorder, obsessive-
compulsive disorder, and polysubstance abuse.
The State removed M.B.S. from his mother's care on June 20, 2013. It
commenced dependency proceedings less than a week later. The court granted
the State's dependency petition and placed M.B.S. with his grandmother, Carolyn
Spehar.
M.B.S.'s father relinquished his parental rights in September 2014.
The dependency order permitted Spehar to visit M.B.S. and attend his
medical appointments. It also required that Spehar complete certain services,
including mental health, family, and substance abuse counseling.
Spehar's compliance with these services was inconsistent. She
participated in two substance abuse evaluations but did not participate in
subsequent state-offered outpatient treatment for substance abuse. Instead, she No. 74002-4-1/3
had "multiple relapses into substance use."1 She also failed to participate in
mental health treatment, ensure that her medical prescriptions remained current,
or maintain sufficient contact with family support workers. Her contact and
visitation with M.B.S. were erratic.
One of her psychologists, Dr. Jason Prinster, initially predicted that M.B.S.
could return to his mother's care in the near future. After Spehar's repeated
failures to comply with court-ordered rehabilitative services, Dr. Prinster updated
his opinion, advising that the prospect of reunion was "guarded to poor."2 He
based this conclusion on the "mother's lack of consistent participation, if any, in
his treatment recommendations."3
Spehar's designated mental health counselor, Dr. David Hall, noted that
Spehar had proved unable to demonstrate either the "regular involvement in
[M.B.S.'s] life or the emotional calmness" necessary to handle M.B.S.'s
behavioral issues.4
Carolyn Spehar suffered a stroke in November that made her unable to
care for M.B.S. alone. M.B.S. was briefly placed with her close friend, but the
friend proved unable to deal with M.B.S.'s behavioral issues.
The State then placed M.B.S. at the Ruth Dykeman Children's Center
(RDCC) in Burien. M.B.S.'s behavioral problems worsened at the RDCC,
1 Clerk's Papers at 275.
2 ]d at 274.
3ld, 4 Id. at 400. No. 74002-4-1/4
inspired by the bad example of his peers. While he improved for a time, he later
regressed again after his mother, grandmother, and social worker visited for his
birthday.
M.B.S. did not enjoy living at the RDCC and wanted to leave. A therapist
from the RDCC later testified that M.B.S. told her that he could not be
"disconnected from [his] family anymore" and that he did not "pull [his] hair when
[he was] at home."5 M.B.S. also told staff that his grandmother's presence
calmed him and that he wanted to live with her.
The State then sought to terminate Spehar's parental rights. Over the
course of a five day trial, various witnesses, including Spehar, testified.
On the second day of trial, M.B.S.'s guardian ad litem testified that she
was not required to report to the court what M.B.S. wanted. She said she was
unsure about his wishes but had heard from others that he wanted to be with his
mother or grandmother.
Shortly thereafter, Spehar moved orally to stay proceedings and appoint
M.B.S. an attorney. The court declined to appoint counsel at that time but invited
Spehar to submit further written argument and authority on the issue. Spehar did
so. The court again denied the motion.
The court terminated the parent child relationship. Its rulings are set forth
in its findings of facts, conclusions of law, and order.
Spehar appeals.
5 Report of Proceedings Vol. 1 (August 26, 2015) at 75. No. 74002-4-1/5
MOTION TO APPOINT COUNSEL
Spehar argues that the trial court improperly concluded that the
Fourteenth Amendment of the United States Constitution did not require the
appointment of counsel for M.B.S. We hold that the court did not abuse its
discretion in denying the motion to appoint counsel for M.B.S.
We review for abuse of discretion the trial court's decision whether to
appoint counsel for M.B.S. RCW 13.34.100(7)(a) provides that the trial court
"may appoint" counsel under such circumstance. The legislature employed the
word "may" to place this decision within the trial court's sound discretion.6 The
trial court abuses its discretion when its "'decision is manifestly unreasonable or
based upon untenable grounds.'"7
A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.181 Spehar's contrary argument that we should review de novo the trial court's
decision is unpersuasive. She cites a dissent in Gourlev v. Gourlev, stating that
de novo review was appropriate where a court's discretionary choice required
consideration of constitutional due process.9 That is not a position that the
6 In re Dependency of M.S.R.. 174Wn.2d 1, 11-12,271 P.3d 234 (2012).
7 Maver v. City of Seattle, 102 Wn. App. 66, 79, 10 P.3d 408 (2000).
8 In re the Marriage of Lawrence, 105 Wn. App. 683, 686 n. 1, 20 P.3d 972 (2001).
9 158 Wn.2d 460, 479, 145 P.3d 1185 (2006) (Sanders, J., dissenting). No. 74002-4-1/6
majority adopted in that case. Likewise, we have found no other Washington
case that departs from the abuse of discretion standard of review that is
generally applicable to discretionary rulings.
Spehar later cites a Wyoming case that declared de novo the appropriate
standard of review without meaningful analysis.10 Thus, that case does not
persuade us to depart from the abuse of discretion standard.
In considering whether to appoint counsel for a child in a termination
hearing, the trial court must conduct a three-part balancing test.11 The United
States Supreme Court developed that test in Mathews v. Eldridqe as the
appropriate framework for measuring the necessary protections of procedural
due process.12 That test requires that the court weigh three factors: (1) the
private interests at stake in a given proceeding; (2) the government's interest;
and (3) the risk that the extant procedures will lead to erroneous deprivations of a
private right.13
The Washington supreme court recently applied the Mathews test to
resolve whether the Fourteenth Amendment protects the right of children to
counsel in termination hearings in In re Dependency of M.S.R.14
10 Dep't of Family Servs. v. Currier, 295 P.3d 837, 839-40 (Wyo. 2013).
11 M.S.R.. 174 Wn.2d at 14-15.
12 424 U.S. 319, 96 S. Ct. 893, 47 L Ed. 2d 18 (1976).
13 Id at 335.
14174Wn.2d 1,271 P.3d 234 (2012).
6 No. 74002-4-1/7
As to the first factor, the relevant private interests, the court concluded that
children have a serious liberty interest at stake in proceedings to terminate
parental rights.15 As to the second factor, the State's interest, the court
recognized the State's "urgent interest in the welfare of the child" and in obtaining
"an accurate and just decision."16
Turning to the last factor, the risk of erroneous deprivation, the court
explained that the proper focus for consideration is the relevant "child's individual
and likely unique circumstances."17 In looking to those circumstances, the court
held that "whether there is a constitutionally significant risk of an erroneous
deprivation of rights may also turn on whether there is someone in the case who
is able to represent the child's interests or whose interests align with the
child's."18
In answering that question, the court recognized that "the existing
statutory scheme for termination proceedings" provides numerous procedural
safeguards.19 These include "a full evidentiary trial before a superior court judge
with discovery, motions practice, heightened burden of proof, and appellate
review."20 Additionally, the trial court must appoint a guardian ad litem for each
15 Id at 17-18. 16 ]d at 18 (internal citation omitted). 17 Id at 22.
18]dat18. 19 jd
20 Id. No. 74002-4-1/8
child who must advocate for the child's best interests and inform the court of any
"views or positions expressed by the child on issues pending before the court."21
Yet the supreme court recognized that in certain circumstances,
appointment of a guardian ad litem might be insufficient. In doing so, it took
account of the argument posed by M.S.R.'s parent, Nyakat Luak, that a guardian
ad litem's duty to convey the child's "expressed desires" did not equate to
representation of those desires.22 Luak also argued that a well-intentioned
guardian might seek to block a child's testimony based on the "misguided view
that participation will be harmful" to the child.23 She argued that an attorney, by
contrast, would advocate for the child's desires and could maintain confidential
communications with the child to allow for the child's open disclosure of his
"deepest secrets and concerns."24
The court recognized the force of Luak's argument but declined to find a
universal right to counsel under such circumstance. Instead, it explained that
"[i]ndeed, each child's circumstances will be different."25 Weighing the three
Mathews factors, the court concluded that the Fourteenth Amendment required
21 jd at 20 (citing RCW 13.34.105(1 )(b), (f)). 22 Id at 19.
23 Id
24 Id
25 Id at 21.
8 No. 74002-4-1/9
appointment of counsel for a child on a case-by-case basis, determined by "each
child's individual and likely unique circumstances."26
Here, Spehar argues there was a large risk of error in the evidentiary
hearing that appointment of counsel would have mitigated. We disagree.
The Mathews test asks the court to balance the private and State interests
at stake against the risk of erroneous decisions absent further procedural
safeguards.27 That test controls our analysis in this case.
The parties do not dispute the gravity of the respective private and State
interests. Thus, their argument focuses upon the risk of erroneous decision in
the absence of the additional procedure of providing independent counsel for
M.B.S.
Here, the trial court determined that appointment of counsel would not
meaningfully add to already extensive safeguards. It based this conclusion on
four reasons. First, the case did not present any complex legal issues. Second,
there was not much an attorney could have assisted with in such a case. Third,
the guardian ad litem adequately accounted for M.B.S.'s actual interests. Fourth,
the motion was untimely.
Spehar does not contest the trial court's first reason. We see no basis to
do so.
Regarding the second reason, the trial court concluded that the particular
circumstances of this case presented little need for M.B.S. to have independent
26 jd at 22. 27 424 U.S. at 335. No. 74002-4-1/10
counsel. Spehar argues an attorney for M.B.S. "could have presented evidence,
cross-examined witnesses, and provided argument to the court on how it should
resolve matters."28 She also argues such an attorney could have advocated for
guardianship with Carolyn. We are not persuaded that the presence of counsel
would have changed the course of the proceedings in this case.
Spehar's attorney skillfully advocated against the termination of parental
rights. In cross-examination, he challenged the guardian ad litem on the
performance of her duties, raising the issue present in this appeal. He provided legal argument to the court that appointment of independent counsel for M.B.S. was appropriate. In both instances, he argued for interests aligned with M.B.S.'s
own interests.
Additionally, the possibility of a petition for guardianship would not bear upon the outcome in this case because such an interim guardianship would fail to provide permanence for M.B.S., as discussed more fully below. In light ofthese facts, the presence of additional counsel for M.B.S. would not have materially
altered these proceedings.
Spehar also disputes the trial court's third reason for declining to appoint M.B.S. counsel: that the guardian ad litem adequately represented M.B.S.'s
actual interests. We disagree with her challenge.
This court has recognized that the trial court is in the best "position to
make an objective judgment" whether representation is adequate.29 Even if the
28 Appellant's Opening Brief at 35. 29 Marauardt v. Fein, 25 Wn. App. 651, 657, 612 P.2d 378 (1980).
10 No. 74002-4-1/11
guardian ad litem performs her duty imperfectly, the appellate court will not
reverse unless that imperfection altered the trial court's determination.30
Here, the guardian ad litem incorrectly believed that she was not required
to report M.B.S.'s actual wishes to the court. The guardian ad litem never
actually spoke to M.B.S. about the matter. Further, although the guardian ad
litem and certain witnesses testified to M.B.S.'s interests, no one in this litigation
advocated for those interests.
But the trial court determined that the breach was harmless because the
guardian ad litem ultimately reported M.B.S.'s actual and expressed wishes.
Spehar fails to indicate how this belated report prevented the court from
considering those wishes. This record shows that the trial court considered
M.B.S.'s wish to live with his grandmother and recognized that Carolyn was
willing to serve as his guardian.
Spehar argues that the balance of these three factors, the private interest,
state interest, and risk of erroneous determination, supports the appointment of
counsel for M.B.S. We disagree.
The first two factors of the Mathews test weigh against each other equally.
The interests of both M.B.S. and the State are stark and similar. They focus on
M.B.S.'s welfare and seek an accurate and just resolution.
The third factor, the risk of erroneous determination based on the
particular circumstances of this case, tips the balance in the State's favor. The
issues in this case were not legally complex. Spehar fails to identify persuasively
30 In re Welfare of T.B., 150 Wn. App. 599, 615-16, 209 P.3d 497 (2009).
11 No. 74002-4-1/12
how an attorney might have swayed the court's decision on Spehar's parental
fitness. And while the guardian ad litem misunderstood her duty to convey
M.B.S.'s actual wishes to the court, this error was harmless. Thus, we conclude
that the trial court did not abuse its discretion in declining to appoint M.B.S.
independent counsel.
Because we find the trial court's denial of the motion to appoint counsel a
proper exercise of discretion, we need not reach the fourth reason, that the
motion was untimely.
CURRENT UNFITNESS AND BEST INTEREST
We turn to the merits of the trial court's decision to terminate parental
rights. As a preliminary matter, Spehar contends that the lower court misapplied the two-step scheme for this determination, prescribed by RCW 13.34.180, by
prematurely addressing M.B.S.'s best interest at the first step. We disagree. RCW 13.34.180 provides a two-step process to terminate parental rights.
First, the court must determine whether the parent is unfit to maintain her rights.31 This determination relies on six statutory factors, each of which the State must
prove by clear, cogent, and convincing evidence.32
31 RCW 13.34.180(1). 32 In re Dependency of K.N.J., 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011).
12 No. 74002-4-1/13
The determination of a parent's fitness to parent her child concerns the
determination of a fundamental right.33 Thus, we consider de novo whether a
trial court conducted that determination properly.34
Only after the trial court finds that the natural parents are unfit to maintain
their rights does the court continue to the second step of analysis, focusing on
the child's best interests.35
In In re Welfare of A.B., the supreme court set aside a termination of
parental rights based on a "premature" consideration of the child's best
interests.36 In that case, the trial court considered the termination of Rogelio
Salas's parental rights.37 It terminated those rights and found that A.B.'s best
interests would be better served by placement with his mother's cousin.38
"Nowhere in its opinion did the court state that [the father] was then unfit to
parent."39
Thus, the supreme court determined that the trial court had "obviously
focus[ed] on A.B.'s best interests, as opposed to [the father's] current
unfitness."40 The supreme court concluded that the trial court erred and that its
33 In re Welfare of A.G.. 160 Wn. App. 841, 843-44, 248 P.3d 611 (2011).
34 id 35 In re Welfare of A.B., 168 Wn.2d 908, 925-26, 232 P.3d 1104 (2010).
36 168 Wn.2d 908, 925-26, 232 P.3d 1104 (2010).
37 id 38 id at 916. 39 id at 917.
40 Id at 926.
13 No. 74002-4-1/14
findings could not support the termination of Salas's parental rights.41
Accordingly, the court set aside the termination of Salas's parental rights based
on the trial court's "premature" consideration of A.B.'s best interest.42
Here, Spehar contends that three of the trial court's findings are defective
for the same reason—because they incorporate premature consideration of
M.B.S.'s best interest. In finding of fact 2.25, the court found that the current
"status quo" posed by the uncertainty of M.B.S.'s placement potential was not in
the child's best interests. In findings of fact 2.24 and 2.26, the court found that
terminating the parent-child relationship and initiating the placement process
would further M.B.S.'s best interests by enabling his placement with adoptive
parents competent to handle his behavioral issues.
We see no basis in A.B. to approach the findings of fact in this case in
such piecemeal fashion, concluding some to be premature and not others. Here,
unlike in A.B., the trial court made numerous findings of fact that went directly
and solely to Spehar's fitness to parent. Thus, even ifwe concluded the findings
Spehar identifies were defective as argued, we would still conclude the trial
court's decision rested upon substantial evidence.
SUFFICIENCY OF EVIDENCE
Spehar also argues that the court lacked substantial evidence to find that
the State satisfied RCW 13.34.180(1 )(f). We disagree.
41 Id at 927.
42 Id.
14 No. 74002-4-1/15
As noted above, the trial court must find this element met by clear, cogent,
and compelling evidence.43 We review de novo whether it did so.44 But we will
affirm the trial court if its conclusion is supported by substantial evidence.45
Evidence is substantial if "any rational trier of fact, viewing the evidence in the
light most favorable to the [prevailing party below] could find" the necessary
elements met by clear, cogent, and compelling evidence.46
Under RCW 13.34.180(1 )(f), the petition for termination of parental rights
must show that the "continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and permanent
home."
Division Two of this court explained that the State can prove this factor in
one of two ways.47 First, the State can prove that prospects exist for a
permanent home but that the legal parent-child relationship prevents that
placement.48 Second, the State can show that the parent-child relationship has a
"damaging and destabilizing effect on the child" that would impair the child's
integration into a permanent and stable placement.49
43 K.N.J., 171 Wn.2d at 576-77.
44 /Va, 160 Wn. App. at 843-44. 45 State v. Cardenas-Flores. 194 Wn. App. 496, 510, 374 P.3d 1217 (2016).
46 id 47 In re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013).
48 id 49 id
15 No. 74002-4-1/16
Regarding the first alternative, Spehar argues that the court never found
that actual placement prospects existed. The State does not rebut this argument
by explaining that any alternative placements existed. Thus, the State must
satisfy the second alternative—that the parent-child relationship had a damaging
and destabilizing effect on M.B.S.—in order to prevail. The State meets this
burden.
The State argues that it provided substantial evidence to the trial court that
Spehar's relationship with M.B.S. has had a "damaging and destabilizing effect
on the child" that would impair the child's integration into a permanent and stable
placement. We agree.
The trial court found Spehar "incapable of providing for [M.B.S.J's
emotional, physical, mental, and developmental needs."50 Spehar had, in the court's estimation, "little insight into how her parental deficiencies and numerous
failures to participate in rehabilitation impacted [M.B.S.]"51 Drs. Prinster and Hall
provided the same assessment in their testimony, based upon Spehar's failure to
participate in court ordered services.
Although Spehar shared a strong bond with her son and was nurturing
and attentive to his needs, she often fell into crippling bouts of depression,
anxiety, and addiction. M.B.S.'s service providers testified that M.B.S. could not
safely return to Spehar until she demonstrated the willingness to engage in court-
ordered services.
50 Clerk's Papers at 278.
51 Id.
16 No. 74002-4-1/17
The State also argues that Spehar's visits may have exacerbated her
son's own anxiety and behavioral issues. We conclude that substantial evidence
supports this argument.
The State also argues the parent-child relationship created uncertainty for
M.B.S. that caused him destabilizing anxiety. The supreme court has previously
held that the child's "feelings of insecurity and instability" are relevant to the trial
court's determination of parental fitness.52
Here, the trial court found that the uncertainty of the "child's next
placement" inhibited M.B.S.'s emotional and psychological welfare. This
realization played an appropriate role in the trial court's determination that the
parental relationship had a damaging and destabilizing effect on M.B.S.
Spehar argues that the court paid insufficient credence to her plan to
share parenting responsibilities with M.B.S.'s grandmother, Carolyn. Carolyn
was willing to serve as a permanent guardian for M.B.S. but, due to her recent
stroke, would need Spehar's assistance.
We previously concluded that the impact of similar possible guardianship
arrangement was irrelevant to the RCW 13.34.180(1 )(f) analysis in In re the
Dependency of A.V.D.53 A.V.D. had lived her entire life with her grandparents.54
Her father, Mark VanDam, visited often, maintaining a regular and loving
52 Matter of Dependency of Esqate, 99 Wn.2d 210, 214, 660 P.2d 758 (1983).
53 62 Wn. App. 562, 570, 815 P.2d 277 (1991). 54 Id at 567.
17 No. 74002-4-1/18
relationship with his daughter.55 Given this situation, VanDam argued that a
guardianship with the grandparents would give A.V.D. the permanency and
stability contemplated by RCW 13.34.180, without depriving her of a father.56 We disagreed, concluding that guardianship was an inherently temporary option,
allowing the parent later to seek a modification.57 Thus, we affirmed the
termination of VanDam's rights.58
These same concerns apply in this case. Here, M.B.S. lived with his
grandmother until she suffered a stroke. The trial court recognized her
willingness to serve as guardian to M.B.S. with Spehar's assistance. M.B.S. and Spehar previously lived with his grandmother for two years, and Spehar argues
that M.B.S. should live with her now.
The State's action in this matter and the trial court's determination rested
in large part on the unpredictable inconsistency of Spehar's conduct. The trial court recognized the deep and nurturing love Spehar holds for her son. Yet
anxiety, depression, and addiction often made her unable to properly parent M.B.S. While she may now support granting her mother custody as M.B.S.'s guardian, she may come to change her mind. Based on that possibility, clear, cogent, and compelling evidence supports the trial court's conclusion in regards to RCW 13.24.180(1 )(f).
55 id 56 id at 570. 57 id 58 Id. at 574-75.
18 No. 74002-4-1/19
CONSTITUTIONAL CHALLENGE
Spehar argues that article I, section 3 of the Washington Constitution
requires the universal appointment of counsel to represent each child in every
termination proceeding. This is an express challenge to the constitutionality of
RCW 13.24.100(7)(a) that grants discretion to trial courts to appoint counsel on a
case-by-case basis. Assuming, without deciding, that this statute is
unconstitutional, its application to this case was harmless beyond a reasonable
doubt. Accordingly, we reject this claim.
We review de novo a statute's constitutionality.59 We presume that a
statute is constitutional and one who challenges the statute bears the burden to
show beyond a reasonable doubt that it is not constitutional.60 In considering this
issue, we also look to "the fundamental principle that if a case can be decided on
nonconstitutional grounds, an appellate court should refrain from deciding
constitutional issues."61
The supreme court concluded that the statutory predecessor to RCW
13.34.100(7) satisfied the federal constitution.62 It did not reach the question of
whether it complied with the due process clause of the Washington constitution.
The parties in that case had not provided the appropriate State v. Gunwall
59M.S.R. 174Wn.2dat13.
60 Amunrud v. Bd. of Appeals. 158 Wn.2d 208, 215, 143 P.3d 571 (2006). 61 Isla Verde Int'l Holdings, Inc. v. City of Camas. 146 Wn.2d 740, 752, 49 P.3d 867 (2002).
62M.S.R. 174Wn.2dat23.
19 No. 74002-4-1/20
analysis, thus depriving the court of the opportunity to consider that issue.63 In
Gunwall, the court provided the appropriate test for considering whether the
Washington constitution provides different protections than its federal
counterpart.64
Here, the parties have briefed the Gunwall analysis. But as discussed
above, the trial court's decision to not appoint counsel for M.B.S. was harmless
beyond a reasonable doubt even if it was constitutionally erroneous. Even if an
attorney had been appointed to advocate for M.B.S.'s wish to live with his
grandmother, the evidence would still support termination.
Accordingly, even if the Washington Constitution guaranteed M.B.S. the
right to counsel, a question we need not decide, the failure to appoint such
counsel was harmless beyond a reasonable doubt.
We affirm the order terminating Spehar's parental rights.
£vxkJ>
WE CONCUR:
ip-e^jVv-^vJv
63 106 Wn.2d 54, 720 P.2d 808 (1986).
64 id at 58-59.