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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

In the Matter of the Welfare of                                                No. 46504 -3 - II


HIM


                A Minor Child.
                                                                      UNPUBLISHED OPINION




        WORSWICK, P. J. —    DD is the father    of   BD,   a   boy born in   2011.   DD moved to modify a

commissioner' s ruling affirming the juvenile court' s order terminating his parental rights as to

BD.   Specifically, DD sought to modify the commissioner' s rulings that ( 1) he was not denied

the right to counsel while unrepresented during a two week period prior to the termination trial,

2) his right to effective assistance of counsel was not violated by the juvenile court' s denial of

his motion for substitute counsel, and ( 3) his due process rights were not violated by the guardian

ad litem' s ( GAL) conduct. On April 22, 2015, we granted DD' s motion to modify to the extent

necessary to refer the matter to a panel fora decision on the motion. After reviewing the motion

and hearing arguments from the parties, we deny DD' s motion to modify with respect to the

commissioner' s ruling on the GAL' s conduct in this case. We grant in part DD' s motion to

modify with respect to the remaining two issues, which issues we address in this opinion, but we

nonetheless affirm   the juvenile   court' s order   terminating DD'    s parental rights as   to BD.
No. 46504 -3 -II



                                               FACTS


                                   I. DEPENDENCY PROCEEDINGS


       On August 16, 2011, the Department of Social and Health, Services filed a dependency

petition as to BD, alleging BD was abused or neglected and had no parent, guardian, or custodian

capable of adequately caring for him, such that he was in circumstances which constituted a

danger of substantial damage to his psychological or physical development. The juvenile court


entered an agreed order of dependency as to BD on December 14, 2011, which order required

DD to participate in a domestic violence assessment and a psychological evaluation with a


parenting   component.'   At the time, the juvenile court allowed DD to have one supervised visit

per week with BD.


       During the dependency action, the Department offered DD domestic violence

assessments, domestic violence treatment, a psychological evaluation, hands- on parenting

training, and counseling. The Department also offered DD parent-child visits with BD, although

the juvenile court restricted visitation at various times throughout the dependency. Between

August 2011 and April 2012, visitation was offered twice per week. DDmissed 22 of the 50

scheduled visits and was late to several of the visits he attended. In March 2012, DD quit


attending visits altogether, claiming that the linoleum floors and one- way mirrors at the

Department' s visitation site caused him anxiety. Although the Department offered DD a room

without mirrors, he still refused to attend.




  Almost a year later, on December 11, 2012, DD filed a motion to vacate the agreed dependency
order on the basis that he was under emotional distress at the time he agreed to the order. The
juvenile court denied DD' s motion to vacate the dependency order, which order a commissioner
of this court later affirmed.



                                                  2
No. 46504 -3 -II



          Between May and August 2012, the parent- child visits occurred in the community, with

supervision provided through a private agency. The private supervising agency eventually

refused to supervise any more visits, however, because DD was secretly audio -recording one of

its employees. In addition, BD' s mother e- mailed the Department in August 2012, accusing DD

of   making threats to "    go on a murder spree          if things did   not go   his way." Clerk' s Papers ( CP) at


194. Thereafter, the juvenile court ordered the visits to return to either the Department or the


Department of Youth for Christ. DD refused to attend visits at either location.


          In late October 2012, the Department supervised visits at a public library. A private

agency took over the supervision of the visits until November 2012, when DD reported he could

no longer attend visits because of a shoulder injury. Parent- child visits resumed at the library

again in February 2013, but were returned to the Department' s office the following month based

on a comment DD had made to the visitation supervisor regarding his friend, Josh Powell, who

had murdered his children.2 DD again refused to attend visits at the Department.

          In October 2013, DD agreed to attend visits at the Department' s Tumwater office.

Visitation with BD occurred there until late November 2013, when the Department received an

e- mail   from DD'    s psychologist      that he   had   concerns    for BD if visits     continued with   DD. On


December 12, 2013, the juvenile court suspended parent- child visits between DD and BD,

finding that BD was at risk based on the psychologist' s e- mail. The juvenile court' s order stated,

    This shall be revisited upon further information from the father' s Greater Lakes Mental Health

counselor    that the father is making       progress and not a risk        to his   son."   Ex. 39 at 2.




2
    According to the supervisor, DD said that " he hoped that if his rights were terminated with
    BD] that he did   not   do   a   Josh Powell." 2 Report      or   Proceedings     at   182.
No. 46504 -3 - II



        The Department social worker, Naz Qureshi, thereafter contacted DD' s counselor, who


reported   that DD had   not   been in counseling   since   December 19, 2013.   At the next dependency

review hearing on January 23, 2014, the juvenile court found that DD was not in compliance

with its court order and was not making progress on correcting his parenting deficiencies. It

ordered for visits to remain suspended. As of the termination fact finding hearing in June 2014,

visitation had not resumed.


                                       II. CLAY' S REPRESENTATION


        On June 24, 2013, the Department of Assigned Counsel ( DAC) filed a notice with the


juvenile court that Christopher Clay was being substituted as court appointed counsel for DD in

the dependency and termination proceedings. Clay was DD' s fifth attorney representing him in

this matter. Over nine months later, on March 28, 2014, the Department filed a motion for an

order releasing DD' s drug/alcohol, medical, and mental health treatment records from various

providers. 3

        At the April 17 hearing to address the Department' s records release motion, Clay

informed the juvenile court commissioner that DD was filing a bar complaint against him. Clay

requested a continuance of the records release hearing to allow him time to file a formal motion

to withdraw as counsel. Clay stated:

        I talked to Ms. Calhoun [the assistant attorney general] about this. She would [ like]
        to go forward. I think, on the records motion. But uh, I think everything, if we
        continue any of it; it all has to be continued for [ DD]. I was validly served. I mean




3 These providers included Greater Lakes Mental Health, Social Treatment Opportunity
Program, Mark Whitehall, Ph.D., Loren W. McCollom, Ph.D., and Foster Care Resource
Network.



                                                       11
No. 46504 -3 -II



        that motion is timely for today. But uh, I can' t honestly represent him in any legal
         capacity in today' s hearing because of what I' ve been told this morning.

Suppl. Report      of   Proceedings ( RP) ( April 17, 2014) at 4.


         The juvenile court commissioner then heard from DD, who stated that he had received


ineffective representation by Clay. The juvenile court commissioner asked DD why he thought

Clay was ineffective, to which DD responded that Clay had a conflict of interest because he ( 1)

had   not advocated      for   visitation or a process          to   get visitation resumed after   the   last   hearing, ( 2)

failed to object to evidence presented at the hearing, and ( 3) was inadequately prepared for

certain motions. The juvenile court commissioner then stated that he was going to release Clay

from representation, not because DD had established a conflict of interest, but because DD had

lost confidence in Clay. The juvenile court commissioner ordered the DAC to appoint new

counsel for DD and ruled that the termination trial set for May 21, 2014 would proceed as

scheduled.




         Immediately after removing Clay as counsel and without appointing new counsel, the

juvenile court commissioner addressed the Department' s records motion, asking if DD wished to

be heard on the motion. DD stated that he did not know if he was prepared to represent himself


in the matter. Without responding to DD' s comment, the juvenile court commissioner stated,

 I' m going to order that the records motion be granted. It may be subject to be revisited by

another    attorney     at a   later   point   in time,   as   the   matter comes on   for trial." Suppl. RP ( April 17,


2014)   at   8.   In its written ruling, the juvenile court commissioner ordered that any copies of

records the Department received would be provided to DD' s new attorney. In addition, the

juvenile     court commissioner ordered             that the confidentiality      privilege was waived and           the
No. 46504 -3 - II



drug/alcohol, medical, and mental health treatment personnel would be allowed to testify at the

termination trial.


           On April 22, 2014, the DAC filed a motion to revise the juvenile court commissioner' s


ruling, arguing that the reasons given by DD at the April 17 hearing were insufficient for

appointment of a new attorney. Following a hearing before the juvenile court on the motion the

following day, the juvenile court concluded that the DAC had standing for purposes of its motion

to revise, and it ordered the DAC to appoint counsel for DD " only as it relates to the motion to

revise."    CP at 99.


           On April 24, 2014, the DAC appointed Andrew Makar as DD' s counsel for the motion to


revise the juvenile court commissioner' s ruling. On May 1, 2014, the parties appeared before the

juvenile court to address the DAC' s motion to revise. Following argument,4 the juvenile court

revised the commissioner' s ruling and reinstated Clay as DD' s attorney. It also denied DD' s

motion to stay the termination trial set for May 21, 2014. DD thereafter filed a motion for

discretionary review with this court, which motion we denied.

           The termination proceedings went forward on May 21 with Clay as counsel for DD. DD

did   not appear   in   court on   May   21.   On that date, Clay informed the juvenile court that DD

wished to have a new attorney appointed. The juvenile court declined to hear the request

because DD was not present. DD appeared the following day for a dependency review hearing,

at which time DD again moved for substitute counsel, alleging a complete breakdown in

communication with Clay. The juvenile court commissioner declined to hear the motion, stating



4 The record from that proceeding is not before us.


                                                           0
No. 46504 -3 -II



that the termination trial was scheduled to be heard by a trial judge who should rule on DD' s

motion for substitute counsel.


       Following the May 22 hearing, the Department filed a memorandum regarding the status

of DD' s counsel. The Department argued that DD had forfeited his right to an attorney through

extremely dilatory conduct. The Department asserted that DD had caused delay in the

proceedings by.filing multiple appeals with this Court, one of which resulted in a stay of the

termination trial, and by threatening bar' complaints against Clay and making other complaints

against his former attorneys.


        On June 4, 2014, the parties appeared before the juvenile court and addressed the


Department' s memorandum regarding the status of DD' s counsel. The juvenile court stated that

it thought the issue of DD' s representation had been put to rest by the previous order reinstating

Clay. But Clay stated that the juvenile court should readdress the issue, as a number of things

had happened since the order was entered. Clay stated that, although he had promised the

juvenile court at the May 1 hearing, at which he was reappointed as counsel for DD, that he

would.be prepared to proceed with the scheduled termination trial, there were issues that had


arisen since the May 1 hearing that caused him difficulty in preparing for trial. Clay stated there

had been a change in his relationship with DO since he was reappointed, resulting in DD' s filing

of the bar complaint, as well as a complete communication breakdown. Clay also stated that the

juvenile court should hear from DD regarding his other complaints.

        The juvenile court then heard from DD, who stated Clay had not argued previous issues

to his liking or in a timely fashion, such as the motion to vacate the agreed dependency order.

The juvenile court then stated:




                                                  7
No. 46504 -3 - II



                 Okay. Your disagreement with a lawyer about whether a motion is
         appropriate or not isn' t a basis for a new attorney. He' s the one practicing law.

         He' s the one who' s making appropriate decisions about how your case ought to
         proceed. You may disagree with your lawyer, and that' s fine, but ultimately, your
         lawyer has an ethical obligation to present motions that he thinks are taken in good
         faith, argue them in a way that are argued in good faith, and represent you in the
         best way he can. That' s his job. Whether you like the way it turns out or not is a
         completely different issue.

1 RP at 31.


          DD continued to explain why he believed his prior attorneys had been ineffective, and he

asked the juvenile court to assign him a new attorney so he could bring a motion for inadequate

counsel. The Department responded that the issue regarding the agreed dependency order had

already been decided by this court. Clay again interjected, stating that there was " more to it than

that."   1 RP at 34. Specifically, Clay stated:

                    DD] is still upset over the [ motion to vacate] issue, but there are subsequent
          issues that I think are relevant today, and that is the complete breakdown in
          communication between myself and my client.
                  We were having communication difficulties prior to my first removal from
          the case, but   since   I   was put   back   on, [   DD]— and I have permission from him now
          to discuss these, and these were the concerns I was afraid, if we brought up, might
          prejudice him in some way, even though you are the trier of fact and can
          discriminate between what is and isn' t relevant.


                  But, he' s refused to help me prepare for trial, prepare witness lists. He' s
          blocked my [     e- mails].    He' s only communicated with me through my assistant,
          because he doesn' t trust me. He wants paper trails. He' s refused to meet with me
          privately. He' s asked witnesses to be present and still alleges via declaration that
          there' s a Bar complaint filed with the State Bar, so I am operating as his attorney
          under a Bar complaint, as well, apparently.
                   So, those issues are more important today dealing with the issue of whether
          or not we should stay or whether or not I should be removed, what should happen.

1 RP at 34- 35.


          Clay informed the juvenile court that, during a recess, DD had asked him to make a

request   for him to   speak with       the judge   without     the Department   present, as   he had something to
No. 46504 -3 - II



disclose regarding a particular provider that might be helpful to the juvenile court in making a

decision. The juvenile        court asked     DD if he had anything      else   to   add, and   DD   responded, "       I


think that covers       it." RP   at   36. The juvenile court then denied DD' s request for ex parte contact.


It also denied his motion to remove Clay from the case and any motion to continue, stating:

                    I] f the Court of Appeals takes some sort of action, they can take some sort
         of action and stop us mid trial or combine whatever result happens with whatever
         appeal might be pending. I think this case is ready for trial, and I think we should
         proceed.




RP at 36- 37.


                                               III. TERMINATION TRIAL


         The termination trial commenced on June 4. Following the termination trial, the juvenile

court found that the Department had proved all of the elements for termination under RCW

13. 34. 180( 1)   and   that termination     of   DD'   s parental rights was   in BD'   s   best interests.    The


juvenile court entered an order terminating DD' s parental rights as to BD. DD appealed the

termination order to this Court, asserting that the juvenile court violated his right to counsel by

ruling on the Department' s records release motion while he was unrepresented, the juvenile court

violated his right to effective assistance of counsel by denying his motion for new counsel, and

his and BD' s due process rights were violated by the guardian ad litem' s ( GAL) failure to

conduct an independent investigation.


                                             IV. COMMISSIONER' S RULING


         On February 5, 2015, acommissioner of this court entered a ruling affirming the juvenile

court' s order terminating DD' s parental rights as to BD. The commissioner' s ruling concluded

in relevant part that ( 1) the juvenile court did not violate DD' s due process right to counsel by

         on   the Department' s        records release motion while     DD   was unrepresented; ( 2)           in the
ruling



                                                               E
No. 46504 -3 -II



alternative, any error in ruling on the Department' s records release motion while DD was

unrepresented was harmless beyond a reasonable doubt; and ( 3) the juvenile court properly

denied DD' s motion for substitute counsel. 5

       DD filed a motion to modify the commissioner' s ruling, which motion we granted on

April 22, 2015 to the extent necessary to   refer   the   matter   to   a   three judge   panel.   Following our

review of DD' s motion to modify and after hearing arguments from the parties, we deny DD' s

motion to modify the commissioner' s ruling with respect to the issues regarding the GAL' S

conduct. We grant in part DD' s motion to modify the commissioner' s ruling with respect to the

issues regarding ( 1) DD' s right to counsel prior to the termination trial and ( 2) the juvenile

court' s denial of his motion for substitute counsel, which issues we address in this opinion. We

affirm the juvenile court' s order terminating DD' s parental rights as to BD.

                                             ANALYSIS


                                        I. RIGHT TO COUNSEL


        DD first contends that the juvenile court violated his statutory and due process right to

counsel for a two week period prior to the termination trial. Specifically, DD contends that the

juvenile court violated his right to counsel by releasing Clay from representation and

subsequently ruling on the Department' s record release motion while DD remained

unrepresented. We agree with DD that the juvenile court violated his statutory right to counsel

by ruling on the Department' s motion while he was unrepresented by counsel, but we hold the

violation harmless because the juvenile court' s release of records had no impact on the



5 The commissioner' s ruling also concluded that DD' s due process rights were not violated by
the GAL' s conduct in the case. Because we deny DD' s motion to modify as it pertains to that
portion of the commissioner' s ruling, we do not further address it in this opinion.

                                                     10
No. 46504 -3 - II



termination proceedings. We need not reach the issue of whether DD' s denial of counsel at the


pretrial motion hearing amounted to a due process violation because, even assuming that a due

process violation had occurred, the Department has shown such violation to be harmless beyond

a reasonable doubt.

A.        Statutory Right to Counsel in Parental Dependency/ Termination Proceedings

          RCW 13. 34. 090 provides in relevant part:


           1) Any party has a right to be represented by an attorney in all proceedings under
          this chapter....

                   2) At all stages ofa 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.
          Unless waived in court, counsel shall be provided to the child' s parent, guardian,
          or legal custodian, if such person ( a) has appeared in the proceeding or requested
          the court to appoint counsel and ( b) is financially unable to obtain counsel because
          of indigency.

 Emphasis      added).    When interpreting a statute, our primary goal is to give effect to the

legislature'   s   intent. In   re   Welfare of L.N.B.- L.,     157 Wn. App. 215, 238, 237 P. 3d 944 ( 2010).

And "[ w]here       the statute' s meaning is plain and unambiguous, we derive legislative intent from

the   statute' s plain   language." In      re   L.N.B.- L.,   157 Wn. App. at 238. Here, RCW 13. 34. 090' s

plain language unambiguously entitled DD to representation by counsel at the proceeding

addressing the Department' s records release motion. The Department does not argue to the

contrary.


          The Department, however, asserts that ( 1) by requesting the appointment of new counsel

at the hearing to address the Department' s records release motion, DD invited the juvenile

court' s error in ruling on the motion while DD was unrepresented, and ( 2) any error in ruling on

the records release motion while DD was unrepresented was harmless beyond a reasonable




                                                                11
No. 46504 -3 - II



doubt. We reject the Department' s assertion that DD invited the juvenile court' s error, but we


agree with the Department that the error was harmless beyond a reasonable doubt.

B.        Invited Error


          The invited error doctrine prevents a party from obtaining relief on appeal from an error

the party caused at trial. Grange Ins. Ass' n v. Roberts, 179 Wn. App. 739, 774, 320 P. 3d 77

 2013),   review.   denied, 180 Wn.2d 1026 ( 2014).         The invited error doctrine applies when a party

 takes affirmative and voluntary action that induces the trial court to take an action that party

later   challenges on appeal."          Grange Ins. Ass' n, 179 Wn. App. at 774. Here, DD' s action in

requesting the appointment of new counsel did not induce the juvenile court to rule on the

Department' s motion while DD awaited the appointment of his new counsel. Moreover, DD


clearly objected to the juvenile court ruling on the Department' s motion while DD was
unrepresented:



                    Commissioner]:...          Do you wish to be heard on the records motion for the
          state to have those records provided to the state?
                    DD]:    I um, I can' t, I don' t know if I am prepared to um, represent myself
          in that matter.
                    Commissioner]:          I' m going to order that the records motion be granted. It
          may be subject to be revisited by another attorney at a later point in time, as the
          matter comes on for trial.
                    DD]:    May I ask that it be stayed pending assignment of counsel?
                    Commissioner]:     No. You may ask and I will deny it.

RP ( April 17, 2014)       at   7- 8.   We hold that DD did not invite the error he complains of on appeal.




                                                           12
No. 46504 -3 -II


C.           Harmless Error


             1.    Inapplicability of Structural Error

             Before addressing harmless error, we consider whether such an analysis is appropriate

here. DD argues that a violation of the right to. counsel during a child termination proceeding

constitutes structural error not subject to harmless error analysis. We disagree.


             A    structural error       is   an error "`    affecting the framework within which the trial proceeds"'

and   is "   not subject      to   harmless      error review."       State v. Frost, 160 Wn.2d 765, 779, 161 P. 3d 361


 2007) ( quoting            Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302

 1991)). "         In   contrast,   trial     errors—   those affecting ` the trial process itself —    may be reviewed for

harmless          error."    Frost, 160 Wn.2d           at   779 ( quoting Fulminante, 499 U. S.   at   310). In the criminal


context, where the right to counsel derives from the Sixth Amendment of the United States

Constitution and article I, section 22 of the Washington Constitution, the denial of the right to

counsel constitutes structural error not subject to harmless error analysis. 6 See, e. g., United

States v. Gonzalez -Lopez, 548 U. S. 140, 148- 49, 126 S. Ct. 2557, 165 L. Ed. 2d 409 ( 2006)


 discussing structural defects not subject to harmless error analysis including the denial of

counsel       in   criminal proceedings);            State v. Watt, 160 Wn.2d 626, 632- 33, 160 P. 3d 640 ( 2007)


 same); see also            State   v.   Harell, 80 Wn.        App.   802, 805, 911 P. 2d .1034 ( 1996) (" An outright


denial of the right to counsel is presumed prejudicial and warrants reversal without a harmless




6 Article I, section 22 of our State Constitution provides the same protection of the right to
counsel in criminal proceedings as the Sixth Amendment. State v. Medlock, 86 Wn. App. 89, 98-
99, 935 P. 2d 693 ( 1997).




                                                                       13
No. 46504 -3 - II



error analysis.").   DD' s right to counsel in the termination proceedings, however, did not derive


from the Sixth Amendment.


        Several Washington cases have held or recognized that structural error does not apply to

civil proceedings. For example, in In re Detention ofD.F.F., our Supreme Court addressed the

appropriate remedy for a violation of the public trial right in a civil commitment proceeding

under article I, section 10 of our State Constitution. 172 Wn.2d 37, 256 P. 3d 357 ( 2011).


Although four justices in the D.F.F. lead plurality opinion determined that a violation of the

public trial right under article I, section 10 constituted structural error requiring reversal without

a showing of prejudice, the two justices in the concurring opinion agreed with the three

dissenting justices   that "`   structural error'   analysis   does   not   apply in the   civil context."   172


Wn.2d   at   48 ( J. M. Johnson, J., concurring).      Thus, a majority in D.F.F. determined that structural

error analysis is inapplicable in the civil context.


        Similarly, relying on D.F.F., Division One of this court has held that structural error does

not apply to a public trial violation in dependency and termination proceedings. In re Adoption

of M.S.M.-P., 181 Wn.      App.     301, 313- 14, 325 P. 3d 392 ( 2014) ( termination proceeding), review


granted,     182 Wn.2d 1001 ( 2015);      In re Dependency ofJ.A.F., 168 Wn. App. 653, 663, 278 P. 3d

673 ( 2012) ( dependency proceeding).          And, in a case predating D.F.F., Division One of this

court applied constitutional harmless error analysis to an alleged due process violation in a

dependency proceeding. In re Dependency ofA. W., 53 Wn. App. 22, 27, 765 P.2d 307 ( 1988).

Because no Washington case has applied structural error analysis in the civil context, we decline

to do so here, and we hold that a violation of a right to counsel in pretrial termination

proceedings does not require automatic reversal.




                                                          14
No. 46504 -3 -II



       2. Harmless Error Analysis


       We turn to whether DD' s deprivation of counsel constituted harmless error. For purposes


of our harmless error analysis, we assume without deciding that the juvenile court' s error in

ruling on the Department' s motion while DD was unrepresented violated DD' s due process right

to counsel and, thus, apply the more stringent constitutional harmless error test.

       We presume that constitutional errors are prejudicial and, to overcome this presumption,


the State must prove beyond a reasonable doubt that the result of the proceedings would have

been the   same absent   the   error.   Watt, 160 Wn.2d   at   635. The Department argues that the


juvenile court' s error in ruling on its records release motion while DD was unrepresented was

harmless beyond a reasonable doubt because ( 1) the Department already possessed several of the

documents disclosed to it as. a result of the juvenile court' s order and ( 2) it was entitled to receive


the remaining documents that were disclosed pursuant to the juvenile court' s order. The

Department thus asserts that the juvenile court' s ruling on its records release motion while DD

was unrepresented had no impact on the termination proceedings. We agree.

        Here, the juvenile     court' s records release   order: ( 1) released to the Department mental


health records pertaining to DD that were possessed by five providers: Dr. Mark Whitehill, Dr.

Loren McCollum, Social Treatment Opportunity Program, Foster Care Resource Network, and

Greater Lakes Mental Health; ( 2)        waived the confidentiality privilege for purposes of the

termination trial; and ( 3) allowed treatment personnel to testify at the termination trial. As the

record demonstrates, the Department already possessed several of the requested documents,

including reports from Dr. Whitehill, Dr. McCollum, and the Social Treatment Opportunity

Program and, thus, the portion of the juvenile court order releasing those documents had no



                                                       15
No. 46504 -3 - II



impact on the termination proceedings and was clearly harmless beyond a reasonable doubt. The

release of documents from Foster Care Resource Network was similarly harmless beyond a

reasonable doubt because it was the provider contracted by the Department to supervise DD' s

visitation with BD, and it did not owe DD a duty of confidentiality. Finally, prior to the records

release order, DD signed a consent form allowing Greater Lakes Mental Health to release

information to. the Department and, thus, the order releasing records from Greater Lakes Mental

Health was also harmless beyond a reasonable doubt.


        DD contends that the portion of the order waiving confidentiality and allowing treatment

providers to testify at the termination trial was not harmless beyond a reasonable doubt because

the treatment providers testified at his termination trial. But DD provides no authority or

argument that his communications with the treatment providers were privileged and, therefore,

not admissible at his termination trial. Moreover, DD' s December 14, 2011, agreed dependency

order demonstrates that his communications with treatment providers were not privileged


because the order required him to " sign a release of information for all services providers to


provide   information to the   social worker and guardian ad   litem." Ex. 5 at 6 ( emphasis added).




7 After we heard arguments in this case, DD submitted a statement of additional authority citing
RCW 5. 60. 060( 9).     RCW 5. 60. 060( 9) provides in relevant part:


          A mental health counselor, independent clinical social worker, or marriage and
          family therapist . . may not disclose, or be compelled to testify about, any
          information acquired from persons consulting the individual in a professional
          capacity when the information was necessary to enable the individual to render
          professional services to those persons except:
                    a) With the written authorization of that person....


          Because DD' s agreed dependency order required him to authorize the release of
information from all service providers, RCW 5. 60. 060( 9)( a)' s exception to the mental health




                                                     16
No. 46504 -3 - II



Because the Department' s requested records were either already in their possession or were

subject to disclosure, and because DD' s communications with treatment providers were not


privileged, we are convinced beyond a reasonable doubt that the juvenile court' s error in ruling

on the Department' s motion to release records and to allow treatment providers to testify at the

termination hearing while DD was unrepresented was harmless. Because the error is harmless

beyond a reasonable doubt, even assuming that DD' s due process right to counsel was violated,

reversal is not required.


                                  H. MOTION TO SUBSTITUTE COUNSEL


        Next, DD contends that the trial court erred by denying his May 22, 2014, motion for the

appointment of new counsel.$       We disagree and, thus, affirm the juvenile court order terminating

DD' s parental rights as to BD.


        When an attorney-client relationship completely collapses, the refusal to substitute new

counsel violates the defendant' s right to effective assistance. State v. Cross, 156 Wn.2d 580,

606, 132 P. 3d 80 ( 2006). A defendant who is dissatisfied with appointed counsel must show


good cause to warrant substitution of counsel, such as conflict of interest, an irreconcilable

conflict, or a complete breakdown in communication. State v. Stenson, 132 Wn.2d 668, 734, 940

P. 2d 1239 ( 1997). "   Generally, a defendant' s loss of confidence or trust in his counsel is not

sufficient reason   to appoint new counsel."    State v. Varga, 151 Wn.2d 179, 200, 86 P. 3d 139




professional -patient privilege applies. Additionally, to the extent DD relies on the physician -
patient privilege under RCW 5. 60. 060( 4), such privilege does not apply in parental termination

proceedings. In re Welfare ofDodge, 29 Wn. App. 486, 491- 94, 628 P. 2d 1343 ( 1981).

8 DD did not appeal from the juvenile court' s May 1 decision to reinstate Clay as DD' s counsel.
We thus assume that the juvenile court properly determined that DD' s relationship with Clay as
of that date did not warrant the substitution of counsel.



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2004). See        also   Cross, 156 Wn.2d          at   606 ("[ T] here is a difference between a complete collapse


and mere    lack    of accord.");   State v. Sinclair, 46 Wn. App. 433, 436, 730 P. 2d 742 ( 1986)

 defendant' s " general discomfort" with attorney' s representation did not constitute a valid reason

to substitute counsel).


         In determining whether the juvenile court properly denied DD' s motion to substitute

counsel, we must consider: (             1) the          of
                                                  extent -    the   conflict, (2) the adequacy of the juvenile court' s

inquiry, and ( 3) the timeliness of the motion. In re Personal Restraint ofStenson, 142 Wn.2d

710, 723- 24, 16 P. 3d 1 ( 2001).           We review the juvenile court' s refusal to appoint new counsel


for an abuse of discretion. Cross, 156 Wn.2d at 607. A court abuses its discretion when its

decision adopts a view that no reasonable person would take or is based on untenable grounds or

reasons. State v. Sisouvanh, 175 Wn:2d 607, 623, 290 P. 3d 942 ( 2012)

A.       Extent of Conflict

         In examining the extent of the conflict between counsel and client, we consider " the

extent and nature of the breakdown in the relationship and its effect on the representation

actually   presented."      State   v.   Schaller, 143 Wn.          App.   258, 270, 177 P. 3d 1139 ( 2007). " Because


the   purpose of    providing   assistance of counsel           is to. ensure     ...   a fair trial, the appropriate inquiry

necessarily must focus on the adversarial process, not only on the [ client' s] relationship with his

lawyer.. . . "     Shaller, 143 Wn. App. at 270.

          At the June 4 hearing addressing Clay' s representation, DD first argued in support of his

motion for substitute counsel that Clay, like several of his other previously assigned attorneys,

had failed to argue previous issues in a timely fashion. Specifically, DD. stated to the juvenile

court   that "[   e] ach time I' ve had a new attorney, I' ve had to wait for them all to prepare and have



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issues get heard before the Court. I' ve had to give them an amount of time before even trying to

file any   complaints or a   follow-up      with supervisors."        1 RP at 26. DD' s general dissatisfaction


with the amount of time counsel needed to prepare to represent him in the termination


proceedings is not a valid basis to warrant the appointment of substitute counsel, particularly

since DD failed to show any prejudice resulting from counsel' s required preparation time.

Varga, 151 Wn.2d at 200. DD also raised several issues regarding the quality of representation

from his previous attorneys, particularly with regard to a motion to vacate the agreed order of

dependency, but these issues were not relevant to the quality of Clay' s representation or the

extent of the conflict between DD and Clay.

           Additionally, at the June 4 hearing Clay told the juvenile court that there was a complete

communication breakdown because DD has refused to help him prepare for trial and has refused

to   communicate      directly with him.     But "[ i]t is well settled that a defendant is not entitled to


demand a reassignment of counsel on the basis of a breakdown in communications where he

           refuses   to cooperate   with   his attorney[.]"    Schaller, 143 Wn.    App.   at   271.   At best, Clay' s
simply


assertion at the June 4 hearing showed that the alleged communication breakdown was based

solely on DD' s refusal to cooperate. And, although Clay asserted that DD had refused to help

him prepare for trial, at no point did Clay state that he was unprepared for trial due to DD' s lack

of cooperation.




           Finally, Clay asserted a conflict of interest based on DD' s filing of a bar complaint

against him. But to establish reversible error based upon an allegation of a conflict of interest,

DD must " demonstrate that counsel actively represented conflicting interests and that an actual

conflict of   interest adversely     affected   his lawyer' s      performance."   State v. Martinez, 53 Wn. App.



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709, 715- 16, 770 P. 2d 646. Although DD' s bar complaint is not in the record before us, the


record suggests that the complaint centered on Clay' s filing of the motion to vacate the agreed

dependency      order and other    trial tactics. But "[ c] ase law does not support the application of the


concept of a conflict of      interest to   conflicts   between   an   attorney     and client over   trial strategy."   In


re Stenson, 142 Wn.2d at 722. Accordingly, DD did not demonstrate at the June 4 hearing that

he and Clay had a complete communication breakdown or a conflict of interest warranting the

substitution of counsel.




B.        Trial Court Inquiry

           A] trial court conducts an adequate inquiry by allowing the defendant and counsel to

express   their   concerns   fully."   Schaller, 143 Wn.     App.      at   271.   Here, the record clearly

demonstrates that the juvenile court asked DD why he felt substitute counsel was necessary and

attempted to clarify DD' s reasons on multiple occasions. DD expressed that he needed new

counsel to help him bring an ineffective assistance claim against Clay, as he was unhappy about

the way Clay handled certain aspects of the case. The juvenile court also heard from Clay

regarding DD' s concerns. Following Clay' s description of the issue, DD confirmed that Clay

had stated his concerns fairly. Finally, the juvenile court heard Clay' s description of the

communication breakdown and asked DD if he wanted to add anything, to which DD responded,

 I think that     covers   it." 1 RP at 36. Based on the record, we conclude that the juvenile court


conducted an adequate inquiry.

C.        Timeliness ofMotion

          DD argues that his motion for substitute counsel was timely because he initially asked for

a new attorney on April 17. He asserts that it was necessary to renew his request on June 4 the
                                                                                            -



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first   day   of the   termination trial— because     the juvenile court reinstated Clay on May 1 and he

missed    the   hearing    on   May   21.   Regardless of whether DD' s motion for substitute counsel was


timely, the juvenile court here did not abuse its discretion in denying DD' s motion based on the

above two factors. Accordingly, we affirm the juvenile court' s decision to deny DD' s motion for

substitute counsel.




          Because the juvenile court' s error in ruling on the Department' s records release motion

while DD was unrepresented was harmless beyond a reasonable doubt, and because the juvenile


court did not abuse its discretion by denying DD' s motion for substitute counsel, we affirm the

order terminating DD' s parental rights as to BD.

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:
                                                                          V-  Worswick, P. J.




 Maxa, J:




 Lee, J.




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