                                                                 FILED
                                                             JANUARY 3, 2017
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

In the Matter of the Parental Rights to       )          No. 34105-4-111
                                              )          (consolidated with
M.S.                                          )          No. 34106-2-111)
                                              )
                                              )
In the Matter of the Parental Rights to       )          UNPUBLISHED OPINION
                                              )
J.S.                                          )

       PENNELL, J. -   C.S. appeals the termination of his parental rights, arguing he

received ineffective assistance of counsel. We affirm.

                                          FACTS

       C.S.'s two children were placed in dependency proceedings due to concerns over

substance abuse, domestic violence, criminal history, mental health, and inappropriate

supervision. 1 C.S. was ordered to undergo a psychological evaluation, an anger


       1
         The mother's parental rights were terminated by default and are not at issue in
this appeal.
No. 34105-4-III; 34106-2-III
In re Parental Rights to MS. and J.S.


management and domestic violence evaluation, drug and alcohol screening (including

urinalysis monitoring), family therapy, and a parenting evaluation. Although C.S. made

attempts at complying with services over the course of approximately 19 months, he was

largely unsuccessful.

       A termination hearing was held in late 2015. Various service providers testified,

including a psychologist, domestic violence treatment specialist, probation officer,

chemical dependency professionals, family therapist, social worker, and court appointed

special advocate (CASA). During testimony from the therapist, social worker and CASA,

the State elicited hearsay statements made by C.S.'s children, recounting instances of

abuse. The State also elicited testimony from the family therapist that she found

allegations of abuse by C.S.'s older child to be "very credible." 1 Report of Proceedings

(RP) (Dec. 16, 2015) at 159. In addition, the State's witnesses generally testified that

C.S. had failed to progress in services and that termination would be in the children's best

interests. The trial court ultimately agreed with this assessment and entered an order

terminating C.S's parental rights. C.S. appeals.

                                        ANALYSIS

       C.S. challenges the adequacy of the evidence produced at his termination trial. He

claims the State impermissibly introduced hearsay evidence as well as testimony from the



                                             2
No. 34105-4-111; 34106-2-111
In re Parental Rights to MS. and J.S.


family therapist that his oldest child's abuse allegations were "very credible." 1 RP (Dec.

16, 2015) at 159. He also argues the State repeatedly engaged in improper leading

questions. C.S.'s attorney did not object to any of the aforementioned errors at trial.

Accordingly, the merits ofC.S.'s arguments on appeal tum on whether the failure to

object constituted ineffective assistance of counsel.

       Washington law guarantees the right to counsel in termination proceedings.

RCW 13.34.090(2); In re Dependency of Grove, 127 Wn.2d 221, 232, 897 P.2d 1252

(1995). An ineffective assistance of counsel claim may be raised for the first time on

appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P .3d 177 (2009). Such claims are

reviewed de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

       To demonstrate ineffective assistance of counsel, C.S. must make two showings:

(1) counsel's performance was deficient, and (2) counsel's errors were serious enough to

prejudice the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987);

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 2

Under the deficiency prong, counsel's conduct is not considered deficient if it can be



       2
         The parties have suggested that there are two different tests for an ineffective
assistance claim stemming from a termination hearing. One is the Strickland standard.
The other standard is from In re Moseley, 34 Wn. App. 179, 184-85, 660 P.2d 315 (1983).
Any difference is largely immaterial. In re Welfare ofJ.M, 130 Wn. App. 912, 922, 125
P .3d 245 (2005).

                                              3
No. 34105-4-III; 34106-2-III
In re Parental Rights to MS. and J.S.


characterized as legitimate trial strategy. Kyllo, 166 Wn.2d at 863. There is a strong

presumption that counsel's conduct fell within a wide range of a reasonable professional

assistance. Strickland, 466 U.S. at 689. An appellant can rebut this presumption by

showing counsel's performance cannot be explained by any legitimate trial strategy.

State v. Grier, 171 Wn.2d 17, 33-34, 246 P.3d 1260 (2011). Under the prejudice prong,

an appellant must show "there is a reasonable probability that, but for counsel's deficient

performance, the outcome of the proceedings would have been different." Kyllo, 166

Wn.2d at 862.

Child hearsay and family therapist comment

       C.S. contends his counsel was deficient for failing to object to certain alleged

hearsay testimony and an alleged improper comment by the family therapist. He argues

the resulting prejudice was the trial court entering a termination order that is not

supported by substantial evidence of abuse of M.S. and J.S. We disagree.

       First, none of C.S.'s counsel's conduct can be characterized as deficient.

Decisions on whether and when to object fall firmly within trial strategy. State v.

Johnston, 143 Wn. App. 1, 19, 177 P.3d 1127 (2007). C.S. has not met the high burden

of showing how his counsel's decisions to refrain from objecting to alleged hearsay were

not part of a legitimate legal strategy. See Kyllo, 166 Wn.2d at 863; Strickland, 466 U.S.



                                              4
No. 34105-4-III; 34106-2-III
In re Parental Rights to MS. and J.S.


at 689. As the State points out, there are a number of plausible reasons why counsel

abstained from objecting. The record contains substantial evidence of C.S.'s issues with

criminality, substance abuse, domestic abuse, child abuse, and mental health problems.

Counsel may not have objected in order to deemphasize testimony about C.S.'s past poor

choices and behaviors, or it may have been to avoid drawing attention to cumulative

evidence of abuse and other issues. This is especially true in light of how the record

confirms that C.S.'s counsel effectively cross-examined the State's witnesses throughout

the hearing, argued against objections by the State, and tried to emphasize moments when

C.S. was compliant with services and expressed love for his children.

       Even if C.S. could establish deficient performance, he cannot establish prejudice.

When a claim of deficiency is based on counsel's failure to object, a defendant must show

that the objection likely would have been sustained to establish prejudice. State v.

McFarland, 127 Wn.2d 322,337 n.4, 899 P.2d 1251 (1995). Here, the children's

statements regarding abuse to the family therapist and social worker would appear to fall

under ER 803(a)(4). Thus, the statements would likely have been admitted into evidence

even if counsel had objected. Although similar statements by the children to the CASA

and C.S.'s sister would not qualify for admission under ER 803(a)(4), such statements

were cumulative and, therefore, not prejudicial.


                                             5
No. 34105-4-111; 34106-2-111
In re Parental Rights to MS. and JS.


       The only troubling aspect of the testimony complained ofby C.S. was the family

therapist's testimony that she believed C.S. 'solder child. This comment was

inappropriate. However, when viewed in the context of the State's overwhelming

evidence in support of termination, this error was not prejudicial and does not warrant

reversal. See In re Pers. Restraint of Davis, 152 Wn.2d 647,698, 101 P.3d 1 (2004).

Leading questions

       C.S. points to several specific instances in the record where leading questions were

allegedly used and his counsel did not object. C.S. fails to show reversible error.

Although State's counsel appears to have walked many of the witnesses through their

testimony with leading questions, C.S. cannot show defense counsel's decisions on

objections was not tactical, in that it reduced the risk of open-ended questions eliciting

further harmful details. It would take an extreme case for the State's use of leading

questions to justify reversal of a trial court decision. See State v. Madison, 53 Wn. App.

754, 763, 770 P.2d 662 (1989). This is not such a case. The trial court was presented

with substantial evidence in support of its findings. There is no reason to think that the

form of the State's questions impaired the witnesses' abilities to provide truthful,

independent testimony. Viewed as a whole, the record confirms C.S. received a fair trial,

as required by due process.


                                              6
No. 34105-4-III; 34106-2-III
In re Parental Rights to MS. and J.S.


                                    CONCLUSION

      Based on the foregoing, we affirm the orders of the trial court.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                         Pennell, J.
WE CONCUR:




                                         Lawrence-Berrey, J.
                                                                             j




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