 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Welfare of                  No. 73211-1-1
                                                 (consolidated with 73212-9-1,
JAW., DOB: 04/21/97,                             73213-7-1, 73214-5-1 & 73215-3-1)
C.D-N.W., DOB: 12/14/98,
S.A-M.W., DOB: 07/07/00,                         DIVISION ONE
J.E.W., DOB: 09/12/01,
R.A-L.W., DOB: 03/21/04,                         UNPUBLISHED OPINION %r
                     Minor Children.             FILED: November 16, 2015 ^


       Becker, J. —Following her convictions for the assault and death by abused
                                                                                   en
of her adopted children, the mother, who is the appellant in this case, voluntarily ^

terminated her parental rights to her biological children and consented to their

adoption. While incarcerated, she filed a pro se motion to stay the already

completed termination and adoption proceedings. The court denied the motion.

For the first time on appeal, the mother contends the court should have treated

her motion to stay as a motion to vacate the termination and adoption

agreements and appointed counsel to assist her. Because the mother fails to

demonstrate manifest constitutional error, review is precluded under RAP 2.5(a).

      The mother and L.W. are the biological parents of J.A.W, C.D-N.W., S.A-

M.W., J.E.W., and R.A-L.W. They also adopted two children, H.W. and I.W.

       In 2011, H.W. died under circumstances that led to criminal charges

against the parents and agreed orders of dependency as to their biological
No. 73211-1-1/2




children. The parents were subsequently convicted of several crimes against

H.W. and I.W., including homicide by abuse and/or manslaughter and first

degree assault. The State petitioned to terminate the parents' parental rights.

       On February 4, 2014, the mother entered a "Relinquishment of Custody,

Consent to Termination/Adoption & Waiver of Right to Receive Notice of

Proceedings." The document memorialized the mother's voluntary termination of

her parental rights and consent to adoption of her children. It stated in part:

       I understand that after this consent is approved by the court, it is
       not revocable except for fraud or duress practiced by the person,
       department or agency requesting the consent or for lack of mental
       competency at the time the consent was given by me. Under no
       circumstances can I revoke this consent later than one year after
       the court approves it.

That same day, the court also entered a "Stipulation, Agreement. . . and Order

Regarding Communication and Contact Between Birth Mother, Child Adoptee

and Adoptive Parents." This agreement, which was signed by the mother, set

forth the parties' rights and obligations regarding contact between the mother and

her children. It stated in pertinent part:

       Any party's failure to comply with the terms of the agreement
       regarding communication or contact shall not be grounds for setting
       aside an adoption decree or for revocation of a written consent to
       an adoption after it has been approved by the judge.

              ... All parties understand and agree that failure to comply
       with the terms in this agreed order shall not be grounds for setting
       aside the relinquishment of custody or termination of parental rights
       or an adoption decree or revocation of a written consent to an
       adoption after consent has been approved by the court.
              . . . Enforcement of this agreement shall only be by civil
       action in accordance with RCW 26.33.295.
No. 73211-1-1/3




       On January 26, 2015, less than one year after relinquishing her parental

rights, the mother filed a "Motion, Affidavit and Order for Stay of Proceedings."

The affidavit alleged that the adopting parents "have not been in compliance with

the Stipulation, Agreement.. . and Order Regarding Communication and

Contact between Birth Mother, Child Adoptee and Adoptive Parents." (Emphasis

added.) The motion then listed various ways in which the adoptive parents had

violated the agreement.

       At the hearing on the motion, the assistant attorney general stated that the

mother "is trying to enforce the agreements made in the open adoption

document." She pointed to language in the adoption agreement requiring that its

enforcement be by "civil action" and noted that the mother had not named the

adoptive parents in her motion to stay. She asked the court to deny the motion

to stay but allow the mother to file a proper enforcement action if she chose to do

so.


       The mother, appearing pro se, did not dispute the attorney general's

interpretation of her motion but told the court the following:

       I was advised that because it was within the one-year mark ... that
       I could put a stay on the proceedings and ... in effect change my
       mind, and my backing was the fact that the open adoption
       agreement has not been followed. My intentions and my
       understanding was that this was open communication from me with
       my children. .. . So . . . what I'm asking is [if] the courts would grant
       my motion to stay the proceedings even though .. . they went
       ahead and finalized the adoption within the one-year mark and I
       would like to get my children in the care of[a couple present at the
       hearing].
No. 73211-1-1/4




(Emphasis added.) The attorney general noted that the mother was not

requesting vacation of prior orders or agreements and that there was "nothing to

stay at this point." The court and the mother proceeded to discuss the status of

the motion:


             THE COURT: Well... my take on it. . . is that given the
      termination [and] the adoption - the open adoption contract that
      there's nothing left to stay. And so at this point. .. recourse, most
      obviously, would be action within the open adoption and the
      adoption contract. Do you understand, [Mother]?
             [MOTHER]: Urn, so are you saying that that would be taken
      care of through a civil suit?
              THE COURT: Well, that's the mechanism because at this
      point the actions that you are seeking to have stayed have already
      been concluded.
              [MOTHER]: Okay. I was under the understanding that even
      so I could still - you have a year, a mother has a year to change
      their mind and it was within the one year, urn, deadline as it was
      filed February 4th, 2014, and -
              THE COURT: I'm not aware of the provision that you are
      referring to.
              [MOTHER]: I'm sorry, I'm - I'm not able to cite that law at
      this time.
              And then also there's 12.84 it was a Senate/House bill 12.84
      and it's since become an RCW supporting the mother/child
      relationship with incarcerated mothers with their children has
      already been established, so --

             THE COURT: Nothing we're doing today precludes you
      from taking the appropriate action. Whatis happening today is that
      the motion to stay the proceedings that were already concluded is
      being denied.
             [MOTHER]: Okay.
              THE COURT: Okay?
              [MOTHER]: Okay. Thank you, Your Honor.

(Emphasis added.) The court subsequently entered an order denying the motion

to stay and dismissing the action.
No. 73211-1-1/5




       The mother appealed and sought appointment of appellate counsel at

public expense. A different superior court judge granted her request and

appointed counsel.

       For the first time on appeal, the mother contends the superior court erred

in denying her motion to stay because the motion was, in substance, a timely

motion to vacate her consent to termination and adoption and she was

constitutionally entitled to counsel for that motion. We review a court's decision

denying either a motion to stay or a motion to vacate for abuse of discretion.

Bunch v. Nationwide Mut. Ins. Co.. 180 Wn. App. 37, 321 P.3d 266 (2014);

Mitchell v. Wash. State Inst, of Pub. Policy, 153 Wn. App. 803, 821, 225 P.3d

280 (2009). review denied. 169 Wn.2d 1012 (2010). We generally do not review

issues raised for the first time on appeal unless the appellant demonstrates

"manifest error affecting a constitutional right." RAP 2.5(a). "Manifest" error

requires a showing of actual prejudice. State v. O'Hara. 167 Wn.2d 91, 99-100,

217 P.3d 756 (2009). Manifest constitutional errors may be subject to harmless

error analysis. O'Hara, 167 Wn.2d at 98. Applying these principles here, we

conclude that the mother fails to demonstrate manifest constitutional error.

                     MANIFEST CONSTITUTIONAL ERROR

       The mother contends the superior court's failure to treat her motion to stay

as a motion to vacate and to appoint counsel to assist her was manifest

constitutional error. She notes that parents have a statutory right to counsel "at

all stages of a proceeding in which a child is alleged to be dependent," RCW
No. 73211-1-1/6




13.34.090(2), and that the statute is rooted in the due process clause of our state

constitution. In re Dependency of G.G., 185 Wn. App. 813, 826, 344 P.3d 234

(2015). The motion to stay was, in her view, a motion to vacate the termination

and adoption and was filed within the consent agreement's one-year period for

revoking consent to adoption. See RCW 26.33.160(3) ("Within one year after

approval, a consent [to adoption] may be revoked for fraud or duress ... or for

lack of mental competency. ... A written consent to adoption may not be

revoked more than one year after it is approved by the court.") In light of those

authorities, the mother argues that the motion was a stage of "a proceeding in

which a child is alleged to be dependent" and that she was entitled to counsel.

       Even if we were to accept the mother's broad reading of RCW

13.34.090(2), she fails to demonstrate that any alleged error was manifest. As

noted above, manifest error requires a showing of actual prejudice. The focus of

the actual prejudice standard "must be on whether the error is so obvious on the

record that the error warrants appellate review." O'Hara, 167 Wn.2d at 99-100.

The error must be "unmistakable, evident or indisputable, as distinct from

obscure, hidden or concealed." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d

251 (1992); State v. Burke. 163 Wn.2d 204, 224, 181 P.3d 1 (2008). The alleged

error in this case rests on the mother's assertion that the substance of her motion

below was "that the termination orders be overturned and her parental rights

restored." But that interpretation of the motion is not obvious, unmistakable, or

indisputable.
No. 73211-1-1/7




       The mother's motion and arguments below made no mention of vacating

prior agreements. While the mother told the court that she believed she could

change her mind within one year of the termination and adoption, she never

stated that she had changed her mind about her consent to termination or

adoption. Nor did she mention any of the limited grounds for vacating those

agreements—i.e. that her consent was obtained by fraud or duress or that she

lacked capacity to consent. Instead, she simply alleged that the adoptive parents

were not complying with the adoption agreement and requested that her children

be placed with different parents. Given the mother's focus on noncompliance,

the absence of any clear indication below of either intent or proper grounds to

vacate the prior agreements, and the prohibition in those agreements against

seeking vacation or revocation due to noncompliance with the adoption

agreement, we cannot say the superior court's interpretation of the motion was

an obvious, unmistakable and indisputable error.

       The mother also fails to make a plausible showing that the alleged error

had practical and identifiable consequences in the proceedings below. O'Hara,

167 Wn.2d at 99. She claims that failure to appoint counsel is structural error

that is necessarily prejudicial and never harmless. But the doctrine of structural

error does not apply in civil actions. In re Detention of Reyes, No. 89465-5, 2015

WL 5612017, *2 (Wash. Sept. 24, 2015) ("the doctrine of structural error is strictly

limited to criminal trials."); In re Adoption of M.S.M.-P., 181 Wn. App. 301, 313-

14, 325 P.3d 392 (2014) (structural error does not apply to a public trial violation
No. 73211-1-1/8




in civil termination proceeding), affirmed on other grounds. No. 90467-7, 2015

WL 5916968 (Wash. Oct. 8, 2015).

       Moreover, no showing can be made on this record that the failure to

appoint counsel for a motion to vacate had any practical or identifiable

consequences. The mother's sole basis for seeking placement of her children

with other parents was noncompliance with the open adoption agreement. But

such noncompliance is contractually and statutorily insufficient to support a

motion to vacate a voluntary termination and consent to adoption. As previously

noted, the mother expressly agreed that "failure to comply with the terms" of the

communication and contact agreement "shall not be grounds for setting aside the

relinquishment of custody or termination of parental rights or an adoption decree

or revocation of a written consent to an adoption." And both the adoption

agreement and RCW 26.33.160(3) barred revocation of the mother's consent to

adoption "except for fraud or duress practiced by the person, department or

agency requesting the consent or for lack of mental competency at the time the

consent was given." Because the record reveals no arguable basis to vacate the

mother's prior agreements, she cannot make a plausible showing that the failure

to appoint counsel had any practical or identifiable consequences.

       Finally, the mother does not argue that she was entitled to counsel for a

motion to enforce the adoption agreement. But even if she had made that

argument, she could not demonstrate prejudice because the court's order was
No. 73211-1-1/9




without prejudice to her pursuing an enforcement action and did not prevent her

from requesting counsel for that purpose.

      Affirmed.




WE CONCUR:




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