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In re Dependency of J.E.R.C.

Court of Appeals of Washington, Division 1

December 18, 2017

In the Matter of the Dependency of J.E.R.C.

          Appelwick, J.

         The father of J.E.R.C. sought discretionary review in this court of a shelter care order denying the child's placement with the father. A week later, the trial court placed J.E.R.C. with the father. Because the issue is now moot, we grant the father's appointed appellate counsel's motion to withdraw, deny the motion for discretionary review, and deny the motion to extend time.


         On March 24, 2017, the State, pursuant to RCW 13.34.030, initiated dependency proceedings for J.E.R.C, then an almost three year old child. At the first shelter care hearing, the trial court found that J.E.R.C. should remain in shelter care, out of the home. On April 10, 2017, at the interim shelter care hearing, the court denied the father's request to place J.E.R.C. with him. On April 11, 2017, the father sought discretionary review in this court of the shelter care hearing order entered on April 7, 2017. The trial court found the father indigent and entitled to appointed counsel pursuant to RAP 15.2. Then, on April 17, 2017, the trial court placed J.E.R.C. with his father at an interim review hearing.

          The father's appointed appellate counsel moved to withdraw from representing the father on discretionary review under RAP 18.3 and CR 71. He asserted that the request for discretionary review was moot given that the child was placed with the father. He also moved to extend time to allow the father to file a pro se motion for discretionary review, if this court granted counsel's withdrawal.


         The father's appointed appellate counsel moves to withdraw from representing his client on the motion for discretionary review. He states that there is no legitimate basis under RAP 2.3(b) to seek review. He asserts that proceeding with the review would violate his ethical obligations under RPC 3.1, which prohibits counsel from bringing a proceeding unless there is a basis in law and fact for doing so that is nonfrivolous. He asks this court to distinguish this context from In re Welfare of Hall, 99 Wn.2d 842, 843, 664 P.2d 1245 (1983), where the Supreme Court held that appointed counsel may never withdraw in child deprivation proceedings absent client consent.

         If counsel can find no basis for a good faith argument on review, counsel should file a motion in the appellate court to withdraw as counsel for the indigent as provided in RAP18.3(a). RAP 15.2(i). In this court, the father's appointed counsel filed a motion to withdraw as counsel for the father pursuant to RAP 18.3(b). Under RAP 18.3(a)(1), courts use a good cause standard to determine when appellate counsel can withdraw.[1] See State v. Rafay, 167 Wn.2d 644, 653, 222 P.3d 86 (2009) (finding that courts should use a good cause standard in determining when appellate counsel can withdraw and the defendant can proceed pro se). Courts have discretion to determine whether there is good cause. See Id. at 654.

         I. Right to Counsel

         Before we address whether appointed counsel may withdraw, we recognize that indigent parents in dependency and termination proceedings have a statutory right to appointed counsel throughout the proceeding. Citizen v. Clark County Bd. of Comm'rs, 127 Wn.App. 846, 851, 113 P.3d 501 (2005) The Washington dependency statute provides,

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.

RCW 13.34.090(2). In Grove, our Supreme Court held that the right to appointed counsel continues on appeal, including on motions for discretionary review of interlocutory trial court orders. In re Dependency of Grove, 127 Wn.2d 221, 236, 897 P.2d 1252 (1995). The trial court determines if any party seeking appellate review is indigent and therefore unable to pay for the expenses of review for dependency and termination cases under chapter 13.34 RCW. RAP 15.2(b)(1)(b). Further, appointed counsel may never withdraw on appeal in a child deprivation proceeding. Hall, 99 Wn.2d at 847. There, the court reasoned that the Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) procedures that counsel must follow to withdraw in a criminal appeal did not apply to appointed counsel in child deprivation proceedings. Id. at 846. First, it found that the federal constitutional right to counsel in criminal cases, of concern in Anders, differed from the primarily state statutory right to counsel in child deprivation proceedings. Id. Second, it emphasized that a criminal defendant, who must be at least competent to stand trial, will have the opportunity as well as the ability to present his or her own argument to the appellate court. Id. at 846-47. The court distinguished this from the respondents in child deprivation proceedings, who do not have to be found competent, and therefore may be unable to raise potentially meritorious issues. Id. at 847. The court relied on its concern for incompetent parents when it held that courts may never permit counsel on appeal to withdraw in a termination case. Id.

         II. Dependency Proceedings and Termination Proceedings

         Hall prohibits appellate counsel's withdrawal in a termination case, which is distinct from a dependency proceeding. HaH, 99 Wn.2d at 847; see In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (holding that a dependency proceeding and a termination proceeding have different objectives, statutory requirements, and safeguards); compare RCW 13.34.110 and RCW 13.34.130 with RCW 13.34.180 and RCW 13.34.190. First, the primary purpose of a dependency is to allow courts to order remedial measures to preserve and mend family ties, and to alleviate the problems that prompted the State's initial intervention. In re Dependency of T.L.G., 126 Wn.App. 181, 203, 108 P.3d 156 (2005). Termination of parental rights, on the other hand, is any action resulting ...

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