               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 IN THE MATTER OF THE DEPENDENCY                      )          No. 78440-4-I
 OF:                                                             (Consolidated with
                                                      )          No. 78441-2-I)
 L.D.L.N, dob 6/11/2010, and L.T.N.-M.,               )
 dob 7/28/2006,                                                  DIVISION ONE

                   Minor Children,                    )          UNPUBLISHED OPINION

 DONNA NELSON,                                        )
                   Appellant,
                                                      )
                   v.

 STATE OF WASHINGTON,                                 )
 DEPARTMENT OF SOCIAL AND                             )
 HEALTH SERVICES,                                     )
                                                      )
            Respondent.
____________________________________                             FILED: April 22, 2019
           HAZELRIGG-HERNANDEZ, J.         —   Donna Nelson appeals the termination of her

  parental rights to her two sons, L.D.L.N. and L.T.N.-M. Nelson contends the trial

  court erred by denying her motion to appoint a guardian ad litem to represent her

  interests during the termination proceedings. We affirm.

                                               FACTS

           Donna Nelson is the mother of L.T.N.-M., born in July 2006, and L.D.L.N.,

 born in June 2010.1 Mental health providers diagnosed Nelson with schizophrenia

           1   The boys’ fathers’ rights have been terminated and they are not involved in this
 appeal.
No. 78440-4-1/2

and psychotic disorder.2 Nelson also has “mild” intellectual disability, with an IQ of

63.

       In September 2013, after police removed both children from Nelson’s care,

the Department of Social and Health Services (Department) filed a dependency

petition. The court declared both children dependent as to Nelson by agreed order

in January 2014. Nelson’s parental deficiencies established in the dependency

include mental health issues, substance abuse issues, negligent treatment of the

children, and allegations of physical abuse.         The dispositional order required

Nelson to participate in random urinalysis testing, drug and alcohol evaluation and

treatment, mental health treatment, neuropsychological evaluation, and parenting

instruction. The court also entered an agreed order appointing Craig McDonald as

guardian ad litem (GAL) for Nelson during the dependency.

       On July 7, 2017, the Department filed a petition to terminate Nelson’s

parental rights. On November 2, 2017, counsel for Nelson moved to appoint Craig

McDonald to represent Nelson’s interests in the termination. On November 13,

2017, the court conducted a pre-trial hearing on the motion. McDonald, who was

present at the hearing along with all parties and counsel, indicated that he shared

counsel’s concerns regarding Nelson.

       The court then engaged in a brief colloquy with Nelson:

       THE COURT: So, ma’am, what do you think this-this trial is about?
       MS. NELSON: To get my, uh, guardian ad litem back.
       THE COURT: Well, that’s what this hearing is. But in-sort of the
       bigger question: When we have a-a trial on the termination


       2 Nelson’s psychiatric specialist during the dependency, Cole Brower, testified
that he recently changed her diagnosis to “unspecified schizophrenia and unspecified
other psychotic disorder.”

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No. 78440-4-1/3

       proceeding, do you know what that’s about? Can you describe that
       to me?
       MS. NELSON: That’s when there’s a whole bunch of people coming
       together, and they figure it out.
       THE COURT: And what are they trying to figure out?
       MS. NELSON: If the kids are willing to stay in foster home or does
       the kids come back.
       THE COURT: Do you what is it you would like to have happen?
                              —


       MS. NELSON: The kids to be returned back home.
       THE COURT: Do you-is it your understanding that it has anything to
       do with your participation in services and your mental health?
       MS. NELSON: Yes, ma’am.
       THE COURT: And what do you think it has to do with that?
       MS. NELSON: To see if I’m stable enough to be able to handle it.

       Following the colloquy, the court indicated that Nelson appeared competent

to proceed:

       And I understand this can go back and forth. What I’m inclined to do
       is provisionally-is have Mr. McDonald, who has a good relationship
       with Mom, be a sort of standby guardian ad litem, but I really don’t
       want to interfere with Mom’s autonomy if-if there’s not a need. And
       today, there-there just isn’t. She understands the nature of the
       proceedings. She understands what her interests are. And-and I’m
       not doubting that your interactions at times have been contrary to
       this, but what I’m going to do is provisionally appoint so that if things
       go to heck, Mr. McDonald can. step in.
                                        .   .




McDonald agreed that “based on Ms. Nelson’s responses this morning, certainly

I-I couldn’t possibly say, well, at this point she’s not competent.” The court denied

without prejudice counsel’s motion and appointed McDonald as standby guardian

ad litem in the event that Nelson decompensated.

      The termination trial commenced on January 16, 2018, with Nelson as the

first witness. Midway through Nelson’s testimony, her counsel renewed his motion

to appoint a GAL.

      The court then conducted a more extensive colloquy with Nelson regarding

the purpose of the proceedings, the roles of the parties, and possible outcomes.


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No. 78440-4-1/4

Nelson answered that she was in court “[tjo fight for my boys.” She said the

Department had to prove “[t}hat I’m an unfit mother,” meaning “[t]hat I’m not stable

enough to take care of my kids.”         She said the judge’s role is to “make a

determination” based on information from “[m]y party and their party.”                    She

indicated that the purpose of the court appointed special advocate (CASA) is to

“[h]ear my statement and see what’s fine for-for the boys,” and that the purpose of

defense counsel is “[tb fight for me and the kids.” Nelson asserted that she was

able to communicate with defense counsel, and denied having any difficulty

understanding his questions or advice. When asked whether she felt she needed

additional assistance other than her counsel, Nelson responded “[yjeah, because

he has some more timelines and everything else.” When asked to clarify, Nelson

explained that “[m]ore calculations in time” would “[b]e able to help me remember.”

       The court then gave defense counsel an opportunity to question Nelson.

When asked the possible outcomes of the trial, Nelson stated “I can walk around-

walk away with the children and my rights as a mother, or I can walk away with

some rights and not seeing the kids.” She explained that “some rights” means

“that the kids will get older and they’ll contact me.   .   .   When they get 18, I’ll be able

to have my input-my-some rights as-and being the legal guardian without having

my inputs.”

       Following the colloquy, the court again declined to appoint a GAL:

       [W]hile it’s not a sophisticated knowledge of what the process is, I do
       find that she is competent to proceed. She clearly understands what
       everybody’s role is in this. She clearly understands exactly what
       she’s fighting for and comprehends what is at stake in terms of the
       loss of her rights to her children and, in a layperson’s manner,
       acknowledges that she understands that even if she loses the


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No. 78440-4-1/5

       children today, that once they are 18, they’re certainly at liberty to
       contact her, which is not an incorrect statement. Again, I-with the
       understanding that Ms. Nelson does have challenges and is not a
       professional in this case, it appears that she does comprehend.

       Counsel for Nelson did not raise the issue again during the six-day trial. On

February 12, 2018, the trial court terminated Nelson’s parental rights. Nelson

appealed.

                                     DISCUSSION

       Nelson does not challenge any of the findings of fact or conclusions of law

supporting the termination. The sole issue on appeal is whether the trial court

erred in denying counsel’s motion to appoint a GAL pursuant to RCW 4.08.060

during the termination proceeding.3

       We review the trial court’s decision regarding whether to appoint a GAL for

abuse of discretion. Vo v. Pham, 81 Wn. App. 781, 784, 916 P.2d 462 (1996). “A

court abuses its discretion if the decision is manifestly unreasonable, or based on

untenable grounds or untenable reasons.” Dep’t of Soc. & Health Servs. v. Paulos,

166 Wn. App. 504, 517, 270 P.3d 607 (2012).

       This court is required to appoint a GAL “when an incapacitated person is a

party to an action.” RCW 4.08.060. The trial court also has inherent authority to

appoint a GAL for a litigant in a civil matter upon a finding of incompetency. Vo, 81

Wn. App. at 784.




        ~ Although Nelson asserts that the trial court’s failure to appoint a guardian ad
litem violated both RCW 4.08.060 and due process, she failed to conduct a due process
analysis under Mathews v. Eldridcie, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976). We analyze her arguments accordingly.

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No. 78440-4-1/6

       “Mental competency is presumed.” j~. (citing Binder v. Binder, 50 Wn.2d

142, 148, 309 P.2d 1050 (1957). Competent parties have a fundamental right to

rely upon their own personal judgment and intelligence in connection with a

lawsuit. Graham v. Graham, 40 Wn.2d 64, 66-67, 240 P.2d 564 (1952). But courts

“[have] a duty to act to protect the rights of a litigant who appears to be

incompetent.”   ~,   81 Wn. App. at 785. Accordingly, “whenever the issue of a

party’s competence to understand the legal proceedings is raised, the trial court

should conduct a hearing to determine whether the party is mentally competent or

requires a GAL.” Blakely, 111 Wn. App. at 358 (citing Vo, 81 Wn. App. at 786).

The trial court should appoint a GAL when it is “reasonably convinced that a party

litigant is not competent, understandingly and intelligently, to comprehend the

significance of legal proceedings and the effect and relationship of such

proceedings in terms of the best interests of such party litigant.” Graham, 40 Wn.2d

at 66-67. Because the trial court is able to directly observe the individual’s behavior

and demeanor, its competency determination is entitled to deference. ~ State v.

Hicks, 41 Wn. App. 303, 306, 704 P.2d 1206 (1985) (competency to stand trial in

a criminal case).

       On the record before us, we cannot say that the court abused its discretion

in concluding that Nelson met basic competency standards under Graham. The

court properly conducted a colloquy at the pre-trial hearing and again on the first

day of trial to consider whether Nelson met basic competency requirements. The

court acknowledged that Nelson has intellectual and mental health challenges, but




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No. 78440-4-1/7

concluded that she demonstrated a basic understanding of the roles of the parties

and the nature and significance of the legal proceedings.

       Nelson first argues that the trial court erred in failing to presume her

incompetence for the termination based on the fact that she had a GAL during the

dependency. This court disagrees. A litigant’s prior adjudication of incompetence

creates a rebuttable presumption of continuing incapacitation, thus obligating the

trial court to provide an opportunity to defend against the allegation. Shelley v.

Elfstrom, 13 Wn. App. 887, 889, 538 P.2d 149 (1975).          But Nelson was not

adjudicated incompetent in the dependency proceeding. She received a court-

appointed GAL by agreed order. The trial court did not err in reassessing Nelson’s

competency during the termination proceedings.

       Nelson further argues that the totality of the circumstances establish

sufficient indicia of mental incompetence to trigger mandatory appointment of a

GAL. She contends that defense counsel’s opinion regarding her incompetence,

her own conduct during the colloquies, and her mental health and cognitive

impairments triggered a mandatory duty to appoint a GAL.           Again this court

disagrees.

      The trial court is entitled to give “considerable weight” to counsel’s opinion

regarding competency. Statev. Lord, 117 Wn.2d 829, 901, 822 P.2d 177 (1991).

But this factor is not dispositive. Rather, the court must conduct an individual

inquiry into the party’s competency at the time of trial. Here, the record indicates

that the trial court considered defense counsel’s concerns, but determined that

Nelson exhibited sufficient understanding to proceed. When asked, Nelson denied



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No. 78440-4-1/8

having any difficulty communicating w[th defense counsel. We also note that

McDonald, Nelson’s GAL in the dependency, indicated at the motion hearing that

he could not say Nelson was incompetent that day.

       Nelson’s conduct and testimony do not compel a different result. Nelson’s

testimony was sometimes contradictory, and she often exhibited a poor

understanding of parental responsibilities.         But the Graham standard for

competency requires only that she demonstrate an understanding of the

significance of the proceedings and their relationship to her best interests. The

trial court did not err in concluding that she did so. She was also able to understand

and respond intelligibly, if not always accurately, to questions during trial. While it

would have been preferable for the trial court to directly ask Nelson whether she

felt she needed McDonald’s assistance, this factor alone does not mandate

appointment of a GAL.

       Nelson, citing Graham, further contends that a prima facie case of

incompetence triggering the need for a GAL is established if a parent suffers from

an untreated mental health condition such as schizophrenia which appears to

impact her ability to function as a party litigant. But this is not the standard. The

trial court has inherent authority to appoint a GAL after a ‘full and fair hearing and

an opportunity to defend.” Graham, 40 Wn.2d at 69. The emphasis is on the

individual’s overall ability to function as a litigant, not on a single factor such as a

prior mental health diagnosis.4        We note that individuals diagnosed with


        ~ The Department cites as persuasive authority a recent unpublished decision of
this court, In re Dep. of M.P., 5 Wn. App. 2d 1023 (September 24, 2018). In M.R, a
mother who exhibited overt symptoms of schizophrenia during the dependency but not
the termination argued that the trial court erred in failing to sua sponte hold a

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No. 78440-4-1/9

schizophrenia may be competent to stand trial. State v. Harris, 114 Wn.2d 419,

429, 789 P.2d 60 (1990).

          An individual’s competency may change over time. Hence, the focus of the

inquiry is on the party’s current competency.       .~   Vo, 81 Wn. App. at 791 (party’s

actions prior to trial do not establish whether party was competent at the time of

trial).    Notably, there was evidence that Nelson’s mental health fluctuated

significantly. She was involuntarily hospitalized on several occasions, but was

released once she compensated. Several of Nelson’s service providers testified

regarding interactions where she did not exhibit mental health symptoms. And

although Nelson admitted that she stopped taking her medications, she does not

allege that she was symptomatic at the time of trial and her testimony appears

unremarkable in that regard.

          We are mindful that parents are afforded greater due process rights in

termination proceedings than in dependency proceedings because of the

constitutional issues at stake. In re Welfare of R.H., 176 Wn. App. 419, 309 P.3d

620 (2013). Nelson has mental and intellectual challenges, and did not present

well as a witness. However, under the specific circumstances of this case, we

cannot say the trial court abused its discretion in determining that Nelson was not

incompetent at the time of trial under Graham and denying her motion to appoint

a GAL.


competency hearing. Based on the presumption of competence, defense counsel’s
opinion that the mother was competent, her current competency at trial, and the absence
of rebutting evidence, this court held that the trial court did not abuse its discretion. M.P.
supports the Department’s assertion that a diagnosis of schizophrenia does not mandate
appointment of a GAL. However, unlike Nelson’s case, defense counsel in MR
expressly vouched for the mother’s competency.

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No. 78440-4-1/10

      Affirmed.




WE CONCUR:
                         I

              if
                        ‘F




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