                                                                             FILED 

                                                                           DEC. 16,2014 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Tennination of:                      )         No. 31630-1-III
                                               )         (consolidated with
A.D.R. and                                     )         No. 31631-9-III)
A.K.D.R.                                       )
                                               )         PUBLISHED OPINION
                                               )

       SIDOOWAY, C.J. ­     In a series of decisions, our courts have held that a trial court

abuses its discretion if, in refusing a parent's request to continue a parental rights

tennination trial, it prejudicially denies a parent's fundamental liberty interest in the

relationship with his or her child. In this case, Montez Minor asks us to find that the trial

court abused its discretion when it denied his request to continue trial so that he could

pursue the possibility of an open adoption of his two daughters.

       Mr. Minor's request for a continuance is distinguishable from the cases on which

he relies. The prospect of an open adoption that he raised at the outset of trial was both

irrelevant and too speculative to be admitted as evidence at the trial. And the court's

denial of the motion caused no immediate or irremediable prejudice, since Mr. Minor

remained able to act on the last minute possibility for adoption. Under these
Nos. 31630-1-III; 31631-9-III
In re Termination ofA.D.R. and A.KD.R.


circumstances, the trial court's discretion to grant or deny the continuance was not

constrained, and no abuse of discretion is shown. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Montez Minor is the father of two girls, A.D.R. and A.K.D.R., who were ages six

and two at the time of the trial below. The Department of Health and Human Services

(Department) placed A.D .R. in foster care in September 2010 due to concerns over her

mother's mental health. A.K.D.R. was born shortly thereafter and was placed in the same

foster home as her sister. Mr. Minor was living in Seattle at the time, while the girls'

mother lived in Ellensburg.

       From the time A.D.R. was placed into foster care, the Department attempted to

locate Mr. Minor. The only information the mother gave social worker Maura Brown

about his whereabouts was that he lived on the west side of Washington State. It turned

out that Mr. Minor, who had been unable to find steady employment since moving to

Seattle from Georgia, was living in a church's homeless shelter.

      In April 2011, Ms. Brown was able to find a phone number for Mr. Minor's

mother, who lived in Indiana. Mr. Minor's mother refused to provide Ms. Brown with

information about her son's whereabouts but evidently did inform Mr. Minor of the call,

because Mr. Minor called Ms. Brown the next day. A month later, when Mr. Minor

visited the girl's mother, Ms. Brown was able to travel to the home and meet with him.




                                             2

Nos. 31630-1-111; 31631-9-111
In re Termination ofA.D.R. and A.K.D.R.


During their first meeting, Ms. Brown and Mr. Minor discussed services the Department

could offer. She made referrals to services based on their discussions.

       Ms. Brown referred Mr. Minor to Dr. Robin LaDue for a parenting evaluation, and

Mr. Minor participated in a psychological evaluation with a parenting component on

October 26 and December 5, 2012. He did not return to complete the evaluation. Dr.

LaDue completed a report on December 17 based on her two opportunities to interview

Mr. Minor and observe him with his daughters.

      Ms. Brown referred Mr. Minor to Associated Behavioral Health, which is located

in Seattle, for a domestic violence (DV) assessment. Mr. Minor completed the domestic

violence assessment on December 27, the result of which was a recommendation that he

participate in a one-year domestic violence intervention program in a state-certified DV

facility. While several Seattle-based DV treatment providers were identified to Mr.

Minor, he refused the referral, saying he needed time to think about it. Mr. Minor never

enrolled in the recommended intervention program.

      Ms. Brown identified Seattle-based parenting classes offered by Catholic Family

Services. Mr. Minor was unwilling to participate in parenting classes.

      Ms. Brown provided Mr. Minor with bus vouchers so that he could travel from

Seattle to Ellensburg to visit the children. He accepted several bus vouchers. Between

May 2011 and February 2013, he visited his daughters seven times. He developed a

limited relationship with A.D.R. and no relationship with A.K.D.R.

                                            3

Nos. 31630-1-111; 31631-9-111
In re Termination ofA.D.R. and A.K.D.R.


       Because Mr. Minor failed to engage in all of the court-ordered services, continued

to have parental deficiencies, and failed to establish and maintain a relationship with his

daughters, the Department filed a petition to terminate his parental rights in September

2012. Trial was initially scheduled for January 23, 2013 but was continued several

weeks, to February 14. Mr. Minor appeared for the trial with his court-appointed lawyer.

The mother, whose parental rights were also at issue, appeared with her court-appointed

lawyer but requested and was given permission to proceed pro se.

       At the outset of trial, Mr. Minor's lawyer requested a continuance. Because the

verbatim report of proceedings included a seriously deficient record of what was said

during argument of the continuance motion, we directed the parties to prepare an agreed

or court-settled narrative report of the inaudible portions of the record.

       We reproduce portions of the verbatim report of argument of the continuance

motion, alongside the parties' agreed narrative report. Cathy Busha, who represented Mr.

Minor, speaks, as does Marty Dixon, who represented the Department:

   VERBATIM REPORT OF PROCEEDINGS                            AGREED NARRATIVE

   THE COURT: ... Ms. [Busha], any issues that
   we should talk about before we get started here?



   MS. [BUSHA]: "Your Honor, Mr. Minor and I                 Ms. Busha was asking the
   have had several conversations. And if I could            court for a further opportunity
   just (inaudible)."                                        to speak.



                                              4

Nos. 31630-1-III; 31631-9-II1
In re Termination ofA.D.R. and A.K.D.R.



   THE COURT: Absolutely.

   MS. [BUSHA]: Urn, we have talked a lot about            Ms. Busha was alerting the
   (unintelligible) ... As you can imagine, Mr.            court that she had received
   Minor (unintelligible), however, we just received       last minute information about
   word that the open adoption (inaudible) by the          an open adoption agreement
   foster parents. Urn, which is unusual but it's a        that was different from the
   different opportunity for my client. My client has      prior offer and she had not
   just let me know this last night and we discussed it    had sufficient time to discuss it
   this morning, urn (unintelligible) so we're just in a   with Mr. Minor.
   really difficult position, urn so ...

   THE COURT: Okay, I appreciate you sharing
   that with us. Thank you. All right. Well, the
   Court will state that lawsuits, court cases, they
   sometimes are very hard because usually it's
   important stuff that we're talking about here in the
   courtroom. People disagree sometimes about
   what shouldn't happen in the future and that's
   okay, you know. You have two people, you're
   likely to have disagreement about something.
   Very rarely everybody sees the world the same on
   every issue. (Inaudible) disagree. So, the
   courtroom is a place where we can have those
   disagreements brought forward and argument can
   be made ... facts developed to establish a
   person's desire to try to have their wants met by
   the Court. The Court will take all the evidence
   and rule. I don't know what that's going to look
   like right now because I haven't seen the
   evidence. I don't know what's going to happen.
   So we do need to get our trial started and, Mr.
   Dixon, you're the moving party here.

   MR. DIXON: Yes, Your Honor, I'll waive
   opening (unintelligible) and we'll call Mr. Minor
   to the stand.

   THE COURT: All right.


                                             5

Nos. 31630-1-III; 31631-9-III
In re Termination ofA.D.R. and A.KD.R.



   MS. [BUSHA]: Your Honor, I didn't finish                Ms. Busha was explaining that
   (inaudible) ...                                         she did not finish speaking.

   THE COURT: Oh, okay.

   MS. [BUSHA]: My client has asked if, for his            Ms. Busha was explaining that
   portion of the trial, in lieu of the fact if we give    she received last minute
   this infonnation, urn, if (inaudible). I did not tell   information that she had not
   Mr. Dixon about this. This is totally (inaudible)       had a chance to talk about
   ... but this is what me [sic] client is bringing up     with Mr. Dixon, the assistant
   and I (inaudible).                                      attorney general. Her client
                                                           wanted time to discuss the
                                                           open adoption proposal before
                                                           the trial and wanted to delay
                                                           his trial.

   THE COURT: Can you tell me Ms. [Busha,] Mr.
   Minor's request is why?

  MS. [BUSHA]: The reason why is because we                Ms. Busha was telling the court
  have (inaudible) to talk about the possibility of        that the reason she wanted more
  relinquishing any open adoption. Prior to this, the      time was because this was a new
  open adoption only for the (unintelligible) and          possibility ofrelinquishing parental
  photograph. Urn, the foster parents have agreed          rights in favor ofan open adoption
  (unintelligible) after Felix went to them that they      agreement that Mr. Minor was
  would leave a description (unintelligible).              interested in discussing. This offer
                                                           would include more than
                                                           photographs and one letter per
                                                           year, which was the prior open
                                                           adoption offer. This new offer
                                                           would allow some visits at the
                                                           discretion ofthe foster parents.
   THE COURT: Is it their discretion?

  MS [BUSHA]: Their discretion which makes it              Ms. Busha was further
  more (unintelligible) for my client and he hasn't        explaining to the court that the
  really had a lot of time to think about it and hates     new offer would allow some
  to pressure (inaudible) at the end of the trial so       visits at the potential adoptive
                                                           parent's discretion. She had let

                                               6

         Nos. 31630-1-III; 31631-9-II1
         In re Termination ofA.D.R. and A.K.D.R.


            I've let him know that once your parental rights        Mr. Minor know that if the trial
            are terminated that's (unintelligible) in terms of      proceeded and his rights were
            the ability to have a relationship with the children.   terminated, he would not have
            So that's the request. That's why we entered the        the ability to have any continued
            request. And I do apologize to the Court ...            relationship with his children.
                                                                    She was apologizing to the Court
                                                                    because she hadjust learned this
    1
                                                                    information and had not had

    j                                                               enough time to discuss it with 

                                                                    Mr. Minor. 

J
    j
            THE COURT: No, no, that's (unintelligible) okay

I   1	
            MS. [BUSHA]: Also to the attorney general                Ms. Busha was also apologizing
            who's been diligently making (unintelligible)            to the attorney general for this
            efforts to try to resolve this case.                     last minute request for additional
                                                                     time.


I           THE COURT: Okay. Mr. Dixon, you've heard
            the motion for a continuance ...

         Agreed Narrative Report of Proceedings (July 14,2013) at


I        5-7.

                At this point, the verbatim report of proceedings becomes more complete. Mr. 

!

i	       Dixon pointed out that the trial had been continued several weeks already, that the 


         children had been out of the parent's home for a long time, that Mr. Minor's participation

         would be needed in the Department's case against the mother even if the case against Mr.


I        Minor was continued, and "[a]t this point we'd like to go forward." Clerk's Papers (CP)

         at 8. He added that "[i]f something comes to fruition during this case, then things could
1
I
j
         change." Id.



I	                                                    7
I
    Nos. 31630-1-III; 31631-9-III
    In re Termination ofA.D.R. and A.K.D.R.


           The trial court also heard from the guardian ad litem, who opposed a continuance,

    and the children's mother, who was neutral, but did point out that she lived in Georgia

    and "it did take two and a half days to get here." Id. After hearing from all parties, the

    court ruled:

           THE COURT: Okay. Well .... This is the first time the case has been re­
           set. We have to have the ability to get these cases done. Everybody's here
           right now. The witnesses are all here right now, today and tomorrow and it
           has an adequate time for everyone to come prepared for this trial so there's
           no reason, ah, ... I don't think that the reason that's been proposed
           requires me to continue this overcomes the ... for me to (inaudible). We'll
           go ahead and deny the motion for continuance and do the trial today and
           tomorrow (inaudible).

    CP at 9.

           The parties proceeded with a two-day trial, at the conclusion of which the trial

    court took the matter under advisement.

           Six days after completion of the trial, the court sent its letter ruling to the parties.

    It found that the Department had met its burden of proving the elements required to

    terminate both parents' rights. On March 28, it entered findings of fact and conclusions

    of law and an order terminating the parental rights of both parents in both children. Mr.

    Minor timely appealed.

           In April 2014, we requested supplemental briefing addressing In re Welfare of
j

I   HQ., 182 Wn. App. 541, 330 P.3d 195 (2014), which had been called to our attention by



1
J                                                  8


I
Nos. 31630-I-III; 31631-9-III
In re Termination ofA.D.R. and A.K.D.R.


Mr. Minor. In May 2014, we directed the parties to provide the agreed narrative report of

proceedings.

                                         ANALYSIS

       Mr. Minor does not assign error to the court's findings of fact or conclusions of

law. He essentially concedes that the Department proved the elements it was required to

prove to terminate his parental rights. He instead assigns error to the trial court's refusal

to continue the trial so that he could further consider and possibly pursue an open

adoption.

       In both criminal and civil cases, a trial court's decision to grant or deny a

continuance is ordinarily reviewed for a manifest abuse of discretion. State v. Downing,

151 Wn.2d 265, 272,87 PJd 1169 (2004). Discretion is abused only where no

reasonable person would take the view adopted by the trial court. State v. Sutherland, 3

Wn. App. 20,21,472 P.2d 584 (1970). In deciding a motion to continue, the trial court

takes into account a number of factors, including diligence, due process, the need for an

orderly procedure, the possible effect on the trial, and any prior continuances. In re

Dependency ofVR.R., 134 Wn. App. 573, 581, 141 PJd 85 (2006).

       Mr. Minor argues that the trial court's refusal to grant Mr. Minor an adequate

opportunity to consider and negotiate an open adoption violated his right to due process,

in light of his fundamental liberty interest in a relationship with his children.




                                              9

Nos. 31630~1~III; 31631~9~III
In re Termination ofA.D.R. and A.K.D.R.


Alternatively, he argues that the court's refusal to continue the trial denied him his right

to the meaningful assistance of counseL

         In a series of three decisions, our courts have addressed circumstances in which

courts abused their discretion by refusing to continue trial of a petition terminating

parental rights. We first review those decisions and then tum to Mr. Minor's complaints

of denial of due process and ineffective assistance of counsel.

                     1. In re VR.R., Welfare ofR.H., and Welfare ofH.Q.

         In In re VR.R., the Department filed a petition to terminate Amos Ramsey's

parental rights to his two minor children. James Nelson had been appointed as Mr.

Ramsey's lawyer in the dependency proceeding, which was uncontested. A year and

nine months after the agreed order of dependency was entered, the Department filed a

petition to terminate Mr. Ramsey's parental rights. Although a notice to appear at a

hearing informed Mr. Ramsey of the right to seek appointed counsel and court minutes of

a hearing in the termination proceeding indicated that Mr. Ramsey needed a lawyer, none

was appointed until the day before the triaL At that time, Mr. Nelson was again

appointed to represent Mr. Ramsey. The reason for the delay in the appointment was not

clear.

         Mr. Nelson appeared at the time for trial, told the court he was unprepared to

proceed, and asked for a continuance. The Department, noting Mr. Ramsey's failure to

appear, asked for a default. The trial court attributed the delay in Mr. Nelson's

                                              10 

Nos. 31630-1-III; 31631-9-II1
In re Termination 0/ A.D.R. and A.K.D.R.


appointment to Mr. Ramsey,l chose to proceed, and following the trial, terminated Mr.

Ramsey's parental rights.

       On appeal, Division One of our court began its analysis by recognizing that

"[pJarents have a fundamental liberty interest in the care and custody of their children,

that is protected by the Fourteenth Amendment and article I, section 3 of the Washington

State Constitution." In re V.R.R., 134 Wn. App. at 581 (citing Santosky v. Kramer, 455

U.S. 745, 753,102 S. Ct. 1388,71 L. Ed. 2d 599 (1982); In re Welfare a/Myrick, 85

Wn.2d 252,533 P.2d 841 (1975». It recognized that "[tJhe State also has a compelling

interest in protecting the physical, mental, and emotional health of the children." Id.

(citing Myrick). While acknowledging that a trial court's decision on a request for a trial

continuance is ordinarily reviewed for manifest abuse of discretion, the court noted that

"[ wJhen denial of a motion to continue allegedly violates constitutional due process

rights, the appellant must show either prejudice by the denial or the result of the trial




       1 The appellate opinion includes the trial court's oral ruling:
       I see no reason why we can't go ahead this morning. Your client has had
       notice of this matter for months. He's not here. And he just got his
       attorney on board last night. That is not the approach of somebody who is
       particularly interested in this case or his children ... the limitations that
       you're suffering are entirely the responsibility of your client and not the
       responsibility of the Department or this court.

In re V.R.R., 134 Wn. App. at 579 n.2.

                                              11 



                                                                                              I
Nos. 31630-1-III; 31631-9-II1
In re Termination ofA.D.R. and A.K.D.R.


would likely have been different if the continuance was granted. Id. (citing State v.

Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123 (1994)).

       The appellate court rejected the Department's argument that Mr. Ramsey had

forfeited his right to legal representation by being dilatory in securing appointment of a

lawyer. Observing that "a party must engage in extremely severe and dilatory conduct to

establish forfeiture" of counsel, the court pointed out that the record did not support the

conclusion that the delay in Mr. Nelson's appointment was the result of extremely

dilatory conduct on Mr. Ramsey's part. Id. at 582 (citing City of Tacoma v. Bishop, 82

Wn. App. 850, 856, 920 P.2d 214 (1996)).

       The court also rejected the Department's argument that because Mr. Nelson had

represented Mr. Ramsey in the dependency and was somewhat familiar with the matter,

Mr. Ramsey had not demonstrated ineffective assistance. It pointed out that Mr. Nelson

       received no discovery, had no opportunity to review the documents
       identified by [the Department] in the Notice of Intent to Admit, and had no
       opportunity to interview the witnesses identified by [the Department] or to
       obtain an independent evaluation of Ramsey.

Id. at 585. It concluded that "[u]nder either the fair hearing standard in Strickland v.

Washington, 466 U.S. 668,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), or the meaningful

hearing standard in In re Moseley, 34 Wn. App. 179,660 P.2d 315 (1983), Mr. Nelson

could not provide effective assistance of counsel without additional time to prepare." Id.

at 586. Under the circumstances, it concluded that the trial court's decision to deny the


                                             12 

Nos. 31630-1-III; 31631-9-III
In re Termination ofA.D.R. and A.K.D.R.


motion to continue deprived Mr. Ramsey of the right to effective assistance of counsel

and was an abuse of discretion.

       In a second case, In re Welfare ofR.H, 176 Wn. App. 419,309 P.3d 620 (2013),

Bobby Adolphus moved the trial court to either continue trial of the Department's

petition to terminate his parental rights to his three minor children or require the

Department to expedite its consideration of a guardianship placement with the children's

aunt. The Department had filed its petition to terminate Mr. Adolphus's parental rights in

October 2011. The children's aunt came forward as a potential guardian in January 2012.

When it appeared that the Department's completion ofa required home study of the aunt

might not be completed in time for the May, 3, 2012 trial, Mr. Alophus filed his motion

for a continuance or expedited home study on April 5. The motion was heard on April

18. The trial court denied the motion, accepting the Department's argument that whether

the children would be placed with their aunt was immaterial to whether the State could

prove the required elements at the termination trial.

       The appellate court disagreed, and held that "an ide':ltijied guardianship is

material" to a determination whether the continuation of the parent and child relationship

clearly diminishes the child's prospects for early integration into a stable and permanent

home, an element the Department is required to prove under RCW 13.34.180(1)(t). 176

Wn. App. at 423 (emphasis added). It added that because a parent's fundamental

constitutional right is at stake, "due process requires that parents have the ability to

                                              13 

    I
    !
    I1
1        Nos. 31630-1-III; 31631-9-III
         In re Termination ofA.D.R. and A.K.D.R.
1
J
i        present all relevant evidence for the juvenile court to consider prior to terminating a
i        parent's rights." Id at 426 (citing In re Welfare ofShatay c.J., 121 Wn. App. 926,940,
I
!
~
         91 P.3d 909 (2004). "Here," the court said,
i
I
                the potential for a guardianship placement had been established for four
I;              months prior to the termination trial and the State had completed the
                necessary background check and was in the process of approving the aunt
I               for guardianship placement. At the termination hearing, [the Department]
II
                expressed optimism about being able to permanently place the children
                with the aunt. The juvenile court should have considered the availability of
I               guardianship placement with the aunt when determining whether the State
!
i
!
                had met its burden to prove RCW 13.34. 180(l)(f).
I '
i        Id at 429. As a result, it concluded, "the juvenile court abused its discretion by denying
!
         Adolphus's timely motion to continue the trial." Id

                In a third case, In re Welfare ofH.Q., 182 Wn. App. 541, 330 P.3d 195 (2014), the

         trial court was not presented with a motion for continuance, but instead faced an unusual

         pretrial dispute. The guardians of a developmentally disabled father, whose legal

         competence was questionable, wished to voluntarily relinquish parental rights to his

         daughter, H.Q., so that he could enter into an open-communication adoption agreement

         with her adoptive parents. But the Department took the position neither the disabled

         father nor his guardians had the capacity to voluntarily relinquish his parental rights.

         According to the Department, the only option was to pursue involuntary termination of

         the father's rights. Rather than resolve the dispute, the juvenile court simply proceeded




                                                       14
i

1    Nos. 31630-1-III; 31631-9-III
     In re Termination ofA.D.R. and A.K.D.R.
1
~




I    with the termination trial, at the conclusion of which it found that the Department had 


     met its burden of proof and terminated the father's rights. 

I
          On appeal, the court held that "a parent has a substantive due process right to 

i

     pursue voluntary relinquishment of his or her parental rights as an alternative to
II   involuntary termination," and that "[t]he juvenile court should have held a hearing to
I
     determine [the father's] competence to relinquish his parental rights before involuntarily
I,   terminating his parental rights to H.Q." Id. at 449-550. It vacated the termination of the

     father's parental rights and remanded for the juvenile court to hold a hearing on the

     father's competence to voluntarily relinquish his parental rights or, ifhe was found

     incompetent, to "explore alternatives to establishing permanency for the child while still

     safeguarding the important familial bond H.Q. and [her father] share." Id. at 556.

            While the decision speaks broadly of a parent's "substantive due process right to

     pursue statutory alternatives to involuntary termination when the statutory alternatives are

     available as viable options," id. at 552-53 (citing R.H, 176 Wn. App. at 428-29), it does

     so in the context of an open-adoption alternative that had been explored and pursued by

     the father's guardians as far as possible until running headlong into the Department's

     opposition.

            With that background, we tum to Mr. Minor's arguments on appeal.




                                                  15 

Nos. 31630-1-III; 31631-9-III
In re Termination ofA.D.R. and A.K.D.R.


                                     II     Due process

       Mr. Minor first compares his request for a continuance to the motion whose denial

was found to be an abuse of discretion in R.H But both the facts presented and the law at

issue in R.H. are distinguishable. In R.H., Mr. Adolphus made what the appellate court

characterized as a timely motion to more fully develop evidence of an identified

guardianship that the court found was material to one of the elements the State was

required to prove: namely, whether the "continuation of the parent and child relationship

clearly diminishes the child's prospects for early integration into a stable and permanent

home." RCW l3.34.180(1 )(f). The appellate court concluded that an identified

guardianship that had been under review for four months and that the State's witnesses

conceded looked promising was relevant, and that the Department's home study should

be completed before the Department's petition was tried.

       In this case, Mr. Minor was not offering the adoption option as evidence. He

conceded at trial that he was not in a position to care for his children due to his lack of

housing and employment. It was apparent that Mr. Minor simply wanted more time to

consider the option as an alternative to contesting the termination of his rights. The

reasons for the holding in R.H have no application.

       More apt, but equally unavailing, is Mr. Minor's reliance on Welfare ofH.Q. As

in this case, the basis for deferring the termination trial in H. Q. was not to develop

evidence but instead to pursue an option on the father's behalf. But unlike this case, there

                                              16 

Nos. 31630-I-III; 31631-9-II1
In re Termination ofA.D.R. and A.K.D.R.


was nothing new or speculative about the intentions of the guardians of the

developmentally disabled father in HQ.-they had clearly decided that relinquishment of

parental rights was the course of action they wished to pursue. They had simply run into

a roadblock with the Department, given its disagreement as to their, or their ward's, legal

capacity. What the guardians and their ward needed in H.Q, was not more time for

reflection, but a court's resolution as to how they could accomplish a relinquishment of

rights they had concluded was in their client's best interest.

       Mr. Minor, by contrast, had not run into any roadblock; there had simply been a

new development in his settlement options. Unlike in H Q., nothing prevented him from

continuing to try to resolve open adoption terms. The Department's lawyer even stated in

responding to the continuance motion that if "something comes to fruition," the

Department's position could change. CP at 8. Without a continuance, Mr. Minor could

still try to pursue negotiations during trial recesses, or at the end of the trial day. He

could have asked the court to recess early, so the parties and the adoptive parents could

confer. He could have asked the court to take the termination issue under advisement

(which the court ultimately did), thereby giving him time to explore alternatives. He

could have pursued discussions in the six days following the trial and before the court

dispatched its letter ruling. Given all of these alternatives, Mr. Minor cannot demonstrate

prejudice or that the result of the trial would likely have been different.




                                              17
Nos. 31630-1-III; 31631-9-III
In re Termination ofA.D.R. and A.K.D.R.


       The trial court properly considered the Department's and guardian ad litem's

concerns about the length of time the children had been out of the home and the

convenience of other parties and witnesses. No abuse of discretion is shown.

                              III. Ineffective assistance ofcounsel

       Alternatively, Mr. Minor contends that the trial court's denial of his motion for a

continuance denied him the meaningful assistance of counsel. Unlike in VR.R., he

presents literally no showing that Ms. Busha was not prepared to represent him in the

termination proceeding.

       Instead, he argues that the scope of the right to counsel in a termination

proceeding includes not only preparation and participation at trial but also negotiating

toward a settlement on a client's behalf, likening his lawyer's obligation to a criminal

defense lawyer's obligation to promptly convey and counsel a client concerning a plea

offer. Br. of Appellant at 9 (citing Missouri v. Frye,      U.S. _, 132 S. Ct. 1399, 1407,

182 L. Ed. 2d 379 (2012)). He contends that his right to representation in pursuing

settlement was denied by the court.

       We agree that Ms. Busha had a duty to counsel Mr. Minor about an open adoption

alternative and participate as appropriate in communicating settlement offers and

responses. But it does not follow from his right to such representation that the trial court

was required to suspend trial so that settlement counseling and communication could take

place instead. It is the rare case in which a court will call off trial so that parties can try

                                               18 

Nos. 31630-1-III; 31631-9-II1
In re Termination ofA.D.R. and A.K.D.R.


to achieve a settlement that has so far proved elusive. The more prevalent view is that

holding parties to a trial schedule facilitates settlement.

       Because it is the norm that a party presented with an eve of trial settlement

proposal is required to deal with it as trial proceeds, Mr. Minor shows no prejudice. Here

again, he shows no prospect of a change in the trial result and no abuse of discretion.

       Affirmed.


                                                Sid~                         (/
WE CONCUR:




Brown, J.




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