In re the Parental Rights to: Z.I.M.J., 34788-5

Background

Father Kevin Johnson and mother Carol had a child, Zadela; both parents had histories of homelessness, substance abuse, and legal problems; Kevin is a registered sex offender.
DSHS initiated dependency proceedings in May 2015; Zadela was removed from mother’s care and placed with maternal grandmother; court ordered services for Kevin (sex deviancy evaluation, substance treatment, parenting education, housing, contact with DSHS).
Kevin largely refused court-ordered services, stopped visiting after a short period, lived transiently, and repeatedly failed to communicate with the social worker; probation limited his contact with the child.
DSHS petitioned to terminate parental rights in Feb. 2016; Kevin was served by publication and a default entered; he later appeared and contested termination; a termination trial was set for August 2016.
During trial Kevin moved for a continuance to obtain private counsel; the court denied the continuance. On the second day, Kevin told the court he fired his appointed attorney and wanted to hire private counsel; he produced no retained-attorney or proof of ability to pay. The court denied further continuances, kept appointed counsel in the courtroom as standby counsel, and the trial proceeded to termination of Kevin’s parental rights.

Issues

Issue	Johnson's Argument	DSHS / Trial Court Argument	Held
Whether the court infringed Kevin’s right to counsel by effectively forcing self-representation during termination trial	Court “required/forced” him to represent himself; court failed to advise him of consequences and never obtained a valid waiver	Appointed counsel remained available; Johnson fired his attorney, gave no reason, did not request appointed substitute counsel, and failed to show ability to retain private counsel	Court affirmed: no violation — Johnson terminated counsel and did not seek substitute appointed counsel; standby counsel remained and even argued for him
Whether denial of continuance to hire private counsel was error	Needed time (incarcerated) to participate in services and to retain counsel	Continuance would delay child’s case; Johnson had no retained counsel or proof of payment; delay not shown to be in child’s best interest	Court found denial proper; Johnson hadn’t shown ability to hire counsel or legitimate reason for delay
Whether judge was required to warn Johnson about risks of self-representation before proceeding	Court failed to advise him of risks; thus waiver invalid	Warning not required where defendant actually fired counsel and did not request appointment of substitute counsel	Court held warning unnecessary because Johnson did not seek substitution or request to proceed pro se; waiver analysis irrelevant
Applicability of prior cases about counsel withdrawal/denial	Relies on cases where court removed appointed counsel or granted withdrawal without replacement	Distinguishes facts: here counsel did not withdraw, Johnson discharged counsel and provided no grounds or motion to substitute	Court distinguished precedents and affirmed decision

Key Cases Cited

In re Dependency of G.G., 185 Wn. App. 813 (trial court denial of continuance to hire private counsel upheld where parent had not secured substitute counsel)
In re Welfare of G.E., 116 Wn. App. 326 (court reversed where appointed counsel withdrew and court required parent to proceed pro se without adequate advice/warning)
In re Dependency of Grove, 127 Wn.2d 221 (right to counsel and appointment for indigent parents explained)
In re Welfare of Luscier, 84 Wn.2d 135 (Washington Constitution guarantees appointment of counsel for parents)
In re Dependency of V.R.R., 134 Wn. App. 573 (discussing parent’s fundamental liberty interest and state’s interest in child welfare)