                                                                           FILED
                                                                         May 24, 2016
                                                                 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 Welfare of               )
                                              )         No. 33339-6-111
                                              )
F.M.O.,                                       )
                                              )
                                              )         OPINION PUBLISHED
                                              )              IN PART


       KORSMO, J. -    The trial court terminated a mother's relationship with her son,

citing four deficiencies that prevented her from parenting the child. Since the mother was

given notice of only three of those deficiencies, we remand for the trial court to

reconsider whether termination of the parent-child relationship is appropriate considering

only the three deficiencies which the mother knew were at issue in the trial.

                                          FACTS

       When S.O. gave birth to her son, F.M.O., both mother and child tested positive for

methamphetamine. The Department of Social and Health Services (DSHS) immediately

took custody of the child and started dependency proceedings. Her noted parental

deficiencies included substance abuse as well as mental health and domestic violence

histories.
No. 33339-6-III
In the Welfare of FMO


       Two years later a termination petition was filed. The petition referenced several

services offered to S.O., but did not expressly identify her deficiencies as a parent. The

father relinquished his rights to the child, while the mother's case proceeded to trial. The

assistant attorney general (AAG) representing DSHS began his closing argument by

focusing on three identified parental deficiencies that S.O. had refused to address-her

mental health problems, drug dependency, and a history of domestic viol~nce with the

child's father. Report of Proceedings (RP) at 232. Noting that the mother was currently

incarcerated in the county jail, the AAG turned to the then-newly enacted statutory factor

ofRCW 13.34.180(l)(t) addressing whether the incarcerated parent was capable of

maintaining a meaningful role in the child's life. He argued that because S.O. had no

prior relationship with the child and had never parented him, the current incarceration did

not alter the status quo. RP at 236-37. The AAG summed up his argument by stating

that the mother was an unfit parent and had not shown improvement since the child's

birth, commenting that "her circumstances are even worse with her current

incarceration." RP at 239.

       Defense counsel's closing argument focused on S.O.'s poverty and her desire to

parent her son. Counsel referenced incarceration several times in remarks, primarily in

the context of explaining why the mother was unable to see the child since young

children did not visit the Okanogan County Jail. At the conclusion of counsel's remarks,

the trial judge asked about the status of the pending criminal case and was told it had not

                                             2
No. 33339-6-III
In the Welfare of FMO


been scheduled for trial since counsel had asked for an evaluation of her client pursuant

to RCW 10.77. 1 The court took the termination case under advisement and scheduled a

hearing three weeks later to render its judgment.

          The trial court read its remarks into the record before S.O. The court determined

that S.O. was currently unfit to parent and granted the petition. In the course of its

remarks the court noted that S.O. 's recurring incarceration hampered her ability to find

employment and maintain housing. Written findings were prepared by the AAG and

ultimately adopted by the court. Critical to this appeal is a portion of finding of fact

2.13.1:

          [S.O's] primary current deficiencies that prevent the child from being safely
          placed with her are untreated mental illness, untreated substance abuse
          issues, a history of domestic violence in her relationships and periods of
          incarceration that inhibit her ability to parent.

Clerk's Papers at 31.

          Counsel filed a notice of appeal on behalf of her client. S.O. filed a five page

handwritten "appeal" at the same time. A panel of this court heard oral argument.

                                          ANALYSIS

          S.O. presents two issues in this appeal. First, she contends she was not properly

notified of the parental deficiencies that were at issue in the trial. Second, she contends


          1
         "My concern in the criminal case based on criminal standards, things being very
different here, I have filed a motion for an evaluation under 10-RCW 10.77." RP at
244-45.

                                                3
No. 33339-6-III
In the Welfare of FMO


her trial counsel rendered ineffective assistance by failing to ask for appointment of a

guardian ad-litem due to her perceived incompetency. We address the two issues in the

order stated.

       Initially, we note the general standards governing review of a parental termination

decision. The process largely is controlled by statute. Washington courts apply a two-

step process when deciding whether to terminate a parent-child relationship. In re

Welfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). "The first step focuses on

the adequacy of the parents" and requires DSHS to prove, by clear, cogent, and

convincing evidence, the six termination factors set forth in RCW 13.34.180(1). Id.

Clear, cogent, and convincing evidence means "highly probable." In re Welfare of

MR.H., 145 Wn. App. 10, 24, 188 P .3d 510 (2008). Due process also requires the trial

court find by clear, cogent, and convincing evidence that the parent is currently unfit. In

re A.B., 168 Wn.2d at 918. Where a trial court finds all of the elements of the statute by

clear, cogent, and convincing evidence, it implicitly finds the parent is unfit by the same

standard. In re Dependency of K.N.J, 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). If

DSHS meets its burden as to the six termination factors, "the trial court must find by a

preponderance of the evidence that termination is in the best interests of the child." In re

MR.H., 145 Wn. App. at 24. (citing RCW 13.34.190(2)). Only if the first step is satisfied

may the court reach the second step. A.B., 168 Wn.2d at 911.




                                             4
No. 33339-6-III
In the Welfare ofFMO


       Notice ofAlleged Parenting Deficiencies

       In her briefing, S.O. argues that only parental deficiencies alleged in the

termination petition can be the basis for severing the parent-child relationship. We

conclude that due process does not require specific allegations in the termination petition.

Nonetheless, we do agree that the record does not reflect that S.O. knew she needed to

address the issue of her recurring incarceration as a parental deficiency.

       Due process is a flexible concept that may vary with the interests that are at stake,

but at its heart are the concepts of notice and the ability to be heard. Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S. Ct. 652, 94 L. Ed. 865 (1950).

Due process is violated if a parent is held accountable for a parenting deficiency about

which she was never notified. In re Dependency ofA.MM, 182 Wn. App. 776, 790, 332

P.3d 500 (2014).

       Seeking to expand A.MM, S.O argues the termination petition must be the source

of notice of all parental deficiencies. A.MM does not support her argument. There a

mother faced a dependency proceeding, and subsequently a termination proceeding, due

to her substance abuse problem. Id. at 783. A social worker testified during the

termination trial that the mother was deficient because she lacked understanding of her

children's developmental needs. Id. at 784. Defense counsel attacked the testimony,

pointing out that no efforts had been made to offer services to address this deficiency,

thus rendering the State's case inadequate. Id. However, the trial court determined that

                                             5
No. 33339-6-111
In the Welfare of FMO


both the substance abuse problem and the mother's ignorance of "her children's

developmental needs constituted a parental deficiency." Id. at 792.

       On appeal, this court reversed the termination order because the mother was not

notified that her knowledge concerning child development would be considered as a basis

for terminating her parental rights. Id. at 790. Concluding that due process required

notice of the basis for a termination proceeding, the court looked to the record and could

discern no notice to the mother. Id. at 791-92. In the course of its record review, this

court commented that neither the dependency ~or the termination petitions discussed the

issue, and "there is no evidence in the record that [mother] was ever informed that she

could lose her parental rights if she did not adequately familiarize herself with her

children's developmental needs." Id. at 792.

       Thus, while the A.MM court looked at the two petitions, that court did not limit

itself to those documents. Indeed, if the termination petition needed to contain the

allegation, as S.O. argues, then the A.MM court should not even have looked to the

dependency petition for notice. However, it did look to both the dependency case and the

entire termination case record before concluding the mother had not been given notice of

the new parental deficiency that arose during trial testimony. A.MM does not support

S.O. 's argument that the termination petition must include each parental deficiency that

DSHS is seeking to prove.




                                             6
No. 33339-6-III
In the Welfare of FMO


       Nonetheless, due process requires that DSHS provide notice to a parent before

terminating the parent's legal relationship with the child. Typically that action takes

place during the dependency process where evaluations determine the needs of the

children, the parent's ability to meet those needs, and what services can be provided to

assist the parent in meeting the children's needs. Only when the dependency fails to help

the parent overcome the deficiencies does the case proceed to a termination hearing.

Often the adequacy of the services offered, or the parent's response to the services, is the

primary question during the termination hearing.

       Both sides need to know what deficiencies are at issue since the State has to prove

the deficiencies to make its case while the parent has to know what allegations to defend

against. But in most instances the termination is the endgame in lengthy proceedings

where the parties have wrestled over the needed services during the previous years and

there is no question what deficiencies are truly at issue. In most instances they have

already been the subject of repeated evaluations and earlier court proceedings. 2 Thus, it

serves only form instead of substance to rigidly require notice be provided in the

termination petition itself. Accordingly, we decline S.O.'s request to mandate that




       2
         As noted by the mother's counsel in A.MM, the State's failure to offer services
related to the deficiency it is seeking to prove will lead to rejection of the claim. This
gives DSHS great incentive to notify a parent of the perceived deficiency and address it;
there is no benefit to raising a new deficiency late in the proceedings.

                                             7
No. 33339-6-111
In the Welfare of FMO


parental deficiencies be specified in the termination petition. 3 Although notice must be

provided, it need not necessarily be provided in the termination petition. 4

         Our rejection of this argument does not resolve the issue on appeal. S.O. correctly

contends that she was never notified her recurring incarceration was itself a parenting

deficiency that she needed to defend against. This is probably because the State never

sought to use it as a deficiency. 5 The topic of incarceration first came up at trial during

the argument of the parties when the fact of her incarceration was used to address a

statutory factor and to explain the lack of visitation. It was the trial judge, in his prepared

remarks, that included incarceration in the list of proven deficiencies. Those remarks

were then incorporated into the written findings, leaving no doubt that the court

considered incarceration as a deficiency rather than as a mere evidentiary fact. This was

error.



         3
         Washington is a notice pleading state and does not require a petitioner do more
than state "a short and plain statement" of the party's entitlement to relief along with a
request for appropriate judgment. CR 8(a). There are methods of challenging an
inadequate pleading. E.g., CR 12(b)(6); CR 12(c). A party also can always ask that a
pleading be made more definite. CR 12(e). All of these suggest that no special pleading
rule is needed for a termination petition.
         4
          We can envision instances where a new deficiency might develop after a petition
is filed and occur at a time when the petition could no longer be amended. No purpose
would be served in precluding the trial court from considering a new issue bearing on
parental fitness, provided that timely notice was given to the parent.
         5
        Query what type of services would be necessary for DSHS to provide if it had
sought to address a "recurring incarceration" parental deficiency.

                                              8
No. 33339-6-III
In the Welfare ofFMO


       A.MM also is clear on the remedy here. In the absence of evidence in the record

that the other deficiencies proven at trial, without regard to the invalid factor, justified

termination of the parental rights, remand to the trial court is in order. 182 Wn. App. at

792. As there, we "remand with instructions for the trial court to consider whether

termination is appropriate on the basis of the parental deficiencies of which [the mother]

was given adequate notice." Id. at 792-93. The trial court is required to strike the finding

regarding the recurring incarceration. Id. at 793.

       A majority of the panel having determined that only the forgoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.

       Competency ofS. 0.

       S.O. also argues that her counsel provided ineffective service by failing to seek

appointment of a guardian ad litem once the attorney questioned her competency. The

record does not allow resolution of this claim.

       When a parent is mentally incompetent, the superior court must appoint a guardian

ad litem to protect the parent's interests. RCW 4.08.060; In re Welfare of Dill, 60 Wn.2d

148, 150, 372 P .2d 541 (1962). A trial court is free to appoint a guardian ad litem on its

own motion. Graham v. Graham, 40 Wn.2d 64, 67, 240 P.2d 564 (1952). When an

attorney knows about the parent's incapacity, it is "incumbent" to request appointment of

                                               9
No. 33339-6-III
In the Welfare of FMO


a guardian ad litem. Dill, 60 Wn.2d at 150. Given trial counsel's request for an

evaluation under RCW 10.77 in the criminal case, S.O. contends counsel also was

required to act in the termination case. Her argument assumes too much.

       Both parties also assume this ineffective assistance claim is governed by the

standards, applicable to the Sixth Amendment to the United States Constitution, found in

Stricklandv. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674

( 1984 ). Although we have suggested that Strickland is applicable to counsel appointed in

termination cases, no case has squarely so held. E.g., In re Dependency of S.MH., 128

Wn. App. 45, 61, 115 P.3d 990 (2005). Since the parties have presented no other

standard, we will apply Strickland in this case without deciding whether it is applicable at

all to termination actions.

       Appellate courts must be highly deferential to trial counsel's decisions.

Strickland, 466 U.S. at 689-91. A strategic or tactical decision is not a basis for finding

error. Id. Under Strickland, courts apply a two-prong test: whether or not (1) counsel's

performance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel's failures. Id. at 690-92. When a claim can be disposed of on one ground, a

reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wn. App.

266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).

       Although Washington courts can review a constitutional claim raised for the first

time on appeal under RAP 2.5(a), there still must be a sufficient factual basis supporting

                                             10
No. 33339-6-III
In the Welfare of FMO


the claim in order for review to be undertaken. State v. McFarland, 127 Wn.2d 322, 333,

899 P.2d 1251 (1995). That is S.O.'s problem here-there is scant evidence that S.O.

was incompetent to stand trial in the termination case. Everyone is presumed competent;

incompetency must be established by clear and convincing evidence. Binder v. Binder,

50 Wn.2d 142, 148-49, 309 P.2d 1050 (1957).

        S.O. has no such evidence. All she has is her counsel's reference to the fact that

she sought an evaluation in the criminal case under RCW 10.77. That chapter of the

criminal procedure code governs both insanity and incompetency to stand trial. See, e.g.,

RCW 10.77.030; .050; .060(l)(a). The chapter also applies to evaluations conducted for

a diminished capacity defense. State v. Nuss, 52 Wn. App. 735, 738-40, 763 P.2d 1249

(1988), review denied, 112 Wn.2d 1010 (1989). The reference to "RCW 10.77" does not

necessarily support the argument that counsel believed her client to be incompetent in

that case. 6

        Moreover, the ultimate question in a competency case is whether the party

understands the nature of the proceedings. State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d

1069 (1985) (competency is ability of criminal defendant to understand the proceedings

and assist in his own defense); Graham, 40 Wn.2d at 66-67 (guardian ad litem should be



        6
        Since we reject S.O.'s argument, we do not address the State's contention that
counsel made a tactical decision not to pursue incapacity in the termination case since it
would tend to undercut S.O.'s desire to parent her child.

                                             11
No. 33339-6-III
In the Welfare of FMO


appointed in civil case when party cannot comprehend the significance of legal

proceedings in terms of the best interests of the party). We believe it is entirely possible

for a person to be competent in a civil case and not competent in a criminal case-or vice

versa. Nothing indicates that S.O. did not understand the nature of the termination case.

She testified in that action and was present throughout the trial and the verdict. She even

penned a five page personal "appeal" challenging the action. In short, this record does

not suggest that S.O. was incompetent to stand trial.

       The record does not support the contention that counsel knew 7 her client was

incompetent and performed ineffectively by failing to seek a guardian ad litem in the

termination case.

       We remand to the trial court for further proceedings.




WE CONCUR:




       Fearing,~J.


       7
         We note that an attorney who alleges a client is incompetent without first
confirming the fact can be subject to attorney discipline. In re Disciplinary Proceedings
Against Eugster, 166 Wn.2d 293, 322, 209 P.3d 435 (2009). Counsel cannot proceed
"entirely upon his own subjective judgment." Id.

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