In Re J.e.r.c., 5/17/14 (Majority)
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r iLLO COURT OF APPEALS OW I 'STATE OF WASHINGTON 2017 DEC 18 JIH 11:02 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Dependency of J.E.R.C. DOB: 5/17/2014 ) ) ) ) ) ) ) ) ) No. 76664-3-1 DIVISION ONE PUBLISHED OPINION FILED: December 18, 2017 APPELWICK, J. — The father of J.E.R.C. sought discretionary review in this court of a shelter care order denying the child's placement with the father. A week later, the trial court placed J.E.R.C. with the father. Because the issue is now moot, we grant the father's appointed appellate counsel's motion to withdraw, deny the motion for discretionary review, and deny the motion to extend time. FACTS On March 24, 2017, the State, pursuant to RCW 13.34.030, initiated dependency proceedings for J.E.R.C., then an almost three year old child. At the first shelter care hearing, the trial courtfound that J.E.R.C. should remain in shelter care, out of the home. On April 10, 2017, at the interim shelter care hearing, the court denied the father's request to place J.E.R.C. with him. On April 11, 2017, the father sought discretionary review in this court of the shelter care hearing order entered on April 7, 2017. The trial court found the father indigent and entitled to appointed counsel pursuant to RAP 15.2. Then, on April 17, 2017, the trial court placed J.E.R.C. with his father at an interim review hearing. No. 76664-3-1/2 No. 76664-3-1/7 will leave an incompetent parent without any recourse is unfounded in the dependency context, where the trial court still has jurisdiction and the parent still has trial counsel. The difference between the interlocutory nature of dependency orders and the final orders of termination is evident in this case. Only a week after the court denied the father's request to place J.E.R.C. with him, the court did just that at an interim review hearing. There are four circumstances under which this court may grant discretionary review: (1) The superior court has committed an obvious error which would render further proceedings useless; (2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; (3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or (4) The superior court has certified, or all the parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation. RAP 2.3(b). Here, trial counsel filed the motion, seeking review of the contested shelter care hearing order entered on April 7, 2017, presumably asserting the trial court committed an obvious or probable error. Appellate counsel was appointed; briefing scheduled; and appellate counsel moved to withdraw on grounds that there is no meritorious issue under RAP 2.3(b) to seek review. Appellate counsel 7 No. 76664-3-1/8 did not specifically state in his motion that the issue is moot, but he did so in his supplemental brief.3 The State concurs that the issue for which the appellant first sought discretionary review is now moot.4 We decline to extend Hall to the dependency context. Requiring appointed counsel to continue with moot issues on discretionary review would be a misuse of the Indigent Defense Fund, the resources of the court, and those of counsel for the parties.5 Therefore, we grant appointed appellate counsel's motion to withdraw pursuant to RAP 18.3(b) and CR 71. 'Counsel moved this court to extend time for the father to proceed pro se, if he wishes.6 However, the record clearly fails to satisfy the obvious or probable error standards of RAP 2.3(b)(1) and (2). The trial court's shelter care hearing 3 Appellate counsel states, A.M. filed a notice seeking discretionary review of the interlocutory order. A.M. also sought the same relief in the trial court, and on April 17, the trial court entered an Interim Review Hearing Order which granted A.M.'s motion to place his son with him. This order rendered moot the request for discretionary review. (Citations omitted.) 4 It would behoove the State in similar situations to file a motion to dismiss discretionary review when the underlying issue is moot. 5 The dissent in Grove feared that publicly funding all motions for discretionary review of dependency proceedings would be a substantial cost to the State. 127 Wn.2d at 248 (Madsen, J. dissenting). Denying appointed appellate counsel's motion to withdraw when there is no basis to continue discretionary review would be a waste of the State's Indigent Defense Fund. 6 We can infer from the record that appointed appellate counsel did not obtain his client's consent to counsel's withdrawal. If the father had consented to counsel's withdrawal, there would not have been an issue under Hall, which permits withdrawal of appellate counsel even in deprivation of parental rights cases with client consent. See 99 Wn.2d at 843. 8 No. 76664-3-1/9 order, placing the child with the father, rendered the father's discretionary review moot. The motion for discretionary review is denied. And, as the underlying issue is now moot, the motion to extend time to allow the father to continue pro se is also denied. WE CONCUR: 9
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