In Re J.e.r.c., 5/17/14
76664-3
| Wash. Ct. App. | Dec 18, 2017Background
- The State initiated dependency proceedings for J.E.R.C. (born 5/17/2014) in March 2017; a shelter care order kept the child out of the home.
- At an interim shelter care hearing on April 10, 2017 the trial court denied the father’s request to place the child with him; father sought discretionary review in this court the next day.
- The trial court found the father indigent and appointed appellate counsel under RAP 15.2; briefing was scheduled in this court.
- On April 17, 2017 (one week after the challenged order), the trial court placed the child with the father at an interim review hearing, effectively mooting the discretionary-review issue.
- Appointed appellate counsel moved to withdraw under RAP 18.3 and CR 71, arguing no nonfrivolous basis to continue and that continuing would violate RPC 3.1; counsel also moved to extend time to allow the father to proceed pro se if withdrawal were allowed.
- The State agreed the issue was moot; the Court of Appeals granted counsel’s motion to withdraw, denied discretionary review, and denied the motion to extend time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed appellate counsel may withdraw from pursuing discretionary review of an interlocutory shelter care order when the underlying issue is moot | Father (through counsel) sought discretionary review of the shelter care order denying placement | Appointed counsel argued no nonfrivolous basis exists for review; continuing would violate ethics; State agreed issue is moot | Counsel may withdraw under RAP 18.3(b) when discretionary review is moot; motion to withdraw granted and discretionary review denied |
| Whether Hall (prohibiting withdrawal of appointed counsel in child deprivation appeals) bars withdrawal here | Father’s entitlement to appointed counsel on appeal argued as background right | Court: Hall applies to termination appeals, not interlocutory dependency discretionary review; safeguards exist in dependency context | Hall does not extend to discretionary review of interlocutory dependency orders; withdrawal permitted |
| Whether discretionary review standards (RAP 2.3(b)) are satisfied | Trial court order alleged to be erroneous, giving rise to review request | Appellate counsel and court found record did not satisfy obvious/probable error criteria and issue subsequently moot | Discretionary review denied for lack of basis and mootness |
| Whether to extend time to allow father to proceed pro se after counsel’s withdrawal | Counsel asked extension to allow pro se filing if withdrawal granted | Court found no meritorious basis and that the matter was moot | Motion to extend time denied |
Key Cases Cited
- In re Welfare of Hall, 99 Wn.2d 842 (1983) (appointed counsel may not withdraw on appeal in termination proceedings)
- In re Dependency of Grove, 127 Wn.2d 221 (1995) (right to appointed counsel continues on appeal in dependency/termination cases)
- In re Welfare of Key, 119 Wn.2d 600 (1992) (distinguishing dependency and termination proceedings)
- In re Dependency of K.N.J., 171 Wn.2d 568 (2011) (two-prong termination framework and standards)
- In re Chubb, 112 Wn.2d 719 (1989) (interlocutory shelter care orders not appealable as of right)
- Anders v. California, 386 U.S. 738 (1967) (standards governing counsel withdrawal in criminal appeals)
- State v. Rafav, 167 Wn.2d 644 (2009) (good cause standard for appellate counsel withdrawal)