### FILED JANUARY 19, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Parental Rights to ) ) ) ) E.R.D. ) ) ) No. 

### 33762-6-111

UNPUBLISHED OPINION SIDDOWAY, 

### J. -Themother ofE.R.D. failed to appear at the time set for trial ofa petitionto terminate herparental rights and an order ofdefault was entered. She was unable to providethe superiorcourtwith an address where notices ofcontinued dates for

a trial couldreachher and she tookno action to determine whatwas happening in the termination case. Three months afterthe trial was held and an orderterminating her parental rights was entered, she movedto vacatethe order ofdefault and thejudgment. Hermotionwas denied. We find no abuse ofdiscretion by the trial court and affirm. FACTS AND PROCEDURAL BACKGROUND The mother inthis case adopted E.R.D. as a baby. E.R.D. came into the care of the Department ofSocial and Health Services (DSHS) after it had received and investigated four intakes alleging child abuse and neglectbythe mother. In September 

### 2012, afterE.R.D. arrived at school wearingpajamas, with clothing in abag and no

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## I No. 33762-6-111 In re ParentalRights to E.R.D. shoes, and school personnel were left to get her dressed, feed her, and getherto her classroom, DSHS began dependency proceedings. OnMarch 26, 2013, thejuvenile court entered an agreed order ofdependency for then 8-year-oldE.R.D., and she was placed in foster care. Atthe time, the mother's identified parenting deficiencies included untreated substance abuse and untreated mental health issues. She was offered substance abuse treatment, mental health services, parenting services, andrandom urinalysis. Sixteen months later, in July 2014, DSHS commencedparental termination proceedings. OnAugust 21, 2014, after the mother's social worker, MauraBrown, had been unable to contact her despite multiple attempts, Ms. Browntraveledto a visitation centerwhere she knew the mother was scheduled for visitation withE.R.D. E.R.D. and her mother were present. According to Ms. Brown, she served the mother in the hallway with a notice and summons for the terminationtrial that was scheduled for October 23, 2014, verbally told her ofthe trial date, and toldherthat she neededto contacther attorney. The notice and summons served onthe mother included the following language: 3.6 YOUARE NOT REPRESENTED BYA LAWYERIN THIS TERMINATIONPROCEEDINGEVEN IF YOU WERE APPOINTED A LAWYERINTHEPRIORDEPENDENCY CASE. YOUMUSTREAPPLY FORAPPOINTMENT OF A LA WYERINTHIS CASE. IF YOU ORA LA WYER ON YOUR BEHALF DOES NOT APPEARINTHIS CASE, YOU WILL BE

2No. 

### 33762-6-111 In re ParentalRights to E.R.D.

DEFAULTEDAND TERMINATION OF YOURPARENTAL RIGHTS GRANTED. Clerk's Papers (CP) at 

### 11. The mother had been represented by lawyer Cathy Busha during the dependency but according to Ms. Brown, the mother informed herwhen served "that she would hire another attorney to representher" and "was tryingto procure other legal representation." Report ofProceedings (RP) (July 

### 30, 2015) at 

### 7-8. The mother did not appear for the October

### 23 hearing. Ms. Busha, however, was present at courtthat day. 

### It was only after the mother's case was called and the court notedthe mother's absence onthe record that Ms. Busha addressed the court. She said: MS. BUSHA: YourHonor, I'vebeenrepresenting [the mother]- the dependency for quite a long time. She has been in contactwith me. I'mnot sure why she's nothere today. THE COURT: Oh. MS. BUSHA: However, I can appear-herbehalf-andwe can set dates for the termination. I know she does notwant herparental rights terminated-. We hadbeenworkingtowards a guardianship andthat fellthroughTHE COURT: Oh. MS. BUSHA: -(inaudible)with that. So I would askthatthere not be a defaulttoday. !-(inaudible)I'm willingto represent her, and-maybe we can work on dates for the trial. RP (Oct. 

### 23, 2014) at 

### 3-4. Invitedto respond, JenniferDixon, DSHS's lawyertoldthe court, "I don'tthink there was an affirmative request for counsel or any indication that she has asked Ms. Bushato represent hertoday." Id. at 4. Ms. Bushadid not disagree. Ms. Dixon 3No. 33762-6-111 In re ParentalRights to E.R.D.

continuedthat she would like the courtto enter an order ofdefault, knowing that would "give Ms. Busha an opportunity to make a motionto setthe default aside later ifthat situation changes." Id. The court also heard from Nancy Graham, the guardian ad litem, who saidthatE.R.D. was doing well in her foster home andwas inquiring about whether she would be adopted, and that she "hope[d] we can getthis resolved." Id. at 5. Ms. Dixonproposedto set the termination trial overto the next docket (November 13) and the court agreed, telling Ms. Bushathat "hopefullythat will-Ms. Busha, you'll be able to--have contactwith your client, and take whatever steps are necessary." Id. Forreasons that are unexplained, trial was initially set, instead, for January 21, 2015. The Notice ofTrial Date reflects the superior court administrator's certification that it was mailed orhand delivered to the parties, includingthe mother, on October 29, 2014. The record includes an envelope addressedto the mother at an Ellensburg apartment address, bearing a stamp that states "RETURN TO SENDER[,] MOVED LEFTNo ADDRESS[,] UNABLE TO FORWARD." CP at 16. The motherwould later submit a declaration explaining that: Atthe time ofthe dependency and termination trial, I was having a great deal ofdifficulty in my life and was homeless for some months. 

### I was on a downhill spiral. I did not see some ofmy mail norhad a phone sometimes. CP at 43-44. An order ofdefault was not entered until November 5, 2014.

4No. 33762-6-111 In re ParentalRights to E.R.D.

On November 20, the trial date was reset to December 11, 2014. The proofof service on the notice resetting hearing states that a copy ofthe documentwas served by U.S. Mail on all parties ortheir counsel ofrecord. Nothing in the record indicates that a lawyer had appeared on behalfofthe mother. Trial proceeded on December 11. The mother did not appear, nor did anyone on her behalf. Ms. Brown was questioned during the termination trial by Ms. Dixon and by the guardian ad litem. Ms. Browntestified that during the dependency, she had provided the motherwith multiple substance abuse treatment referrals, a referral for a psychological parenting capacity evaluation, andjointmental health sessions with E.R.D. She testified that while the mother completed a chemical dependency program on January 28, 2013, she then failed to complete the recommended intensive inpatient chemical dependency treatment or co-occurring mental health treatment. She testified thatthe mother did not provide consistent urine samples and in 2013 she had multiple positive UAs for both methamphetamine and marijuana. Ms. Browntestified that communication with the mother hadbeen very difficult and visitation between the mother and E.R.D. had been disruptive and erratic. She testified that the mother was homeless and did not demonstrate any change in behavior during the dependency. She expressedher opinionthat it would take at least two years for the mother to remedy herparenting deficiencies. She also expressedthe view that



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termination was in E.R.D.'s best interest andrecommendedterminating theparental relationship and allowing E.R.D. to be adopted byher foster parents. Atthe conclusion ofthe one day trial, the court announced its decisionto terminate the mother'sparental rights. It entered amended findings offact, conclusions oflaw, and an order oftermination onDecember 18. The motherhad her lastvisitwith E.R.D. that day, andMs. Brown deliveredto her

a copy ofthe orderterminating herparental rights. Three months later, onMarch 18, 2015, the mother filed a motion to set aside the default. Her declaration in support stated among other matters that she "was unaware of the date ofthe terminationtrial courthearing," that she did "nothonestly recall anyone serving [her] withpapers for the court date," and that "[a]fter learning ofthis news, [she]

was extremely devastated thatthere was a trial and [she] was not in attendance and that [her] parental rights hadbeen terminated." CP at 43. She said she hadbeen clean and sober since sometime inNovember 2014, had called the Office ofPublic Defense after learning ofthe order oftermination, andthey had arranged for Ms. Bushato representher in moving to set aside the default. DSHS opposed the motion, representing that A substantial hardship wouldbe sufferedby the child ifthe order terminating the mother'sparental rights was vacated. The child has a right topermanency, and at age 10 years old, is aware thather mother'sparental rights have beenterminated and that she is eligible to be adopted atthis time. The mostrecent ISSP [Individual Service and Safety Plan] filed in 6No. 33762-6-111 In re ParentalRights to E.R.D.

the dependency action explains that "[E.R.D.] is aware that she is eligible for adoption and has voiced excitement about having a permanenthome." CP at 51. The mother's motionwas continued a couple oftimes butwas ultimately heard on July 23. That day, Ms. Busha filed a declaration from the mother stating that she had missed court in November and December2014 "due to notbeing notifiedby [DSHS]." CP at 60. Given the conflicting testimony ofthe social worker and the mother as to whetherthe mother hadbeen served, the court concluded thatthe factual dispute needed to be resolved and notified theparties that "[d]ue to the fact that it is difficult to make credibility determinations from a review ofwritten declarations, the courtwill take brief testimony from the social worker andthe mother onthis important issue within the next week or so." CP at 64. The hearing tookplace a week later, onJuly 30. Ms. Browntestifiedto having served the mother onAugust 21, 2014, and to the conversationthattookplace between them. She testified that when she arrived at the visitation center and encountered both E.R.D. and her mother, Ms. Brown asked to speakwiththe motherprivately inthe hallway, and served herwith the papers at that time. DSHS offered, as an exhibit, a case note Ms. Brown enteredthe next morning, whichthe court later described as documenting that at 5: 15 PM onAugust 21, 2014, [Ms. Brown] had personally served [the mother] with a copy ofthe notice, summons and petition for termination ofparent-childrelationship and also verbally

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advised herthat the hearing on thatpetition was scheduled for October 23, 2014. CP at 82. The mother also testified. She recalled seeing Ms. Brown onAugust 21, but testifiedthat Ms. Brown handed her a sealed envelope thatthe mother opened later, after leaving the visit, and that it only contained courtpapers relating to an upcoming permanency plan hearing. According to the mother, when handedthe envelope, she asked Ms. Brown ifshe knew what was inside it andMs. Brown answered no. RP (July 30, 2015) at 16. She testified that ifthe papers had related to a terminationtrial, rather thanpermanency planning, she "wouldhave been there." Id. On cross-examination, DSHS offered an August 21, 2014 case note from the visitation supervisor, Rylee McCauley, and asked the motherto read into the record the portion ofthe case note that addressed what happened after Ms. Brown arrived. The motherread the following from Ms. McCauley's case note: Maura arrived at 4:57. [E.R.D.] opened up her coat. [E.R.D.] asked what her surprise was thatMaura gave [her mother]. [Mother] said it wasn't a surprise,justpapers. [Mother] asked ifI knew whatthe papers were. I said no, and I shouldn'tknow. She said a whole other

...trial. I said we could talk about it another time. 

### Id. at 18. Atthe conclusion ofthe hearing, the trial court announced it would not vacate the default, observing that the mother admittedreceiving an envelope from Ms. Brown at the

8No. 33762-6-III In re ParentalRights to E.R.D.

time ofthe alleged service and, as to the envelope's contents, it "findsthe social worker's credibility greater than [the mother's] on thatparticular issue." Id. at 23. On August 26, the mother filed a notice ofappeal. Because no order denying the motion to vacate hadbeen entered, this court scheduled a hearing to determine appealability. The parties thereafter secured a written order denying the motion, which

was entered by the trial court on October 7, 2015, and the appeal ofthat orderwas allowed to proceed. ANALYSIS Only two of eightassignederrors areproperly before us The mother makes eight assignments oferror on appeal. Most are to trial court decisions made on and before December 18, 2014, as to which her appeal is not timely. A party may appeal a decision terminating all ofaperson'sparental rights with respectto

a child, RAP 2.2(a)(6), but with exceptions not applicable here, a notice ofappeal must be filed in the trial court within 30 days. RAP 5.2(b). Any appeal ofthe trial court's December 18, 2014judgmentterminating the mother's parental rights, or any ruling that prejudicially affected thatjudgment (such as the order ofdefault) was required to be filed by January 1 7, 2015. The mother did not file a notice ofappeal in the trial courtuntil August 26, 2015. A CR60 motion to vacate ajudgmentis not one ofthe posttrial motions that extends the time for filing an appeal under RAP 5.2(e). "An appeal from the denial ofa 9

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CR60(b) motion is not a substitute for an appeal and is limited to the propriety ofthe denial, not the impropriety ofthe underlying order." In re Dependency of JMR., 160 Wn. App. 929, 938-39 n.4 (2011); In re Parenting & Support of CT., 193 Wn. App. 427, 435,378 P.3d 183 (2016) ("When reviewing a trial court's denial ofa motion to vacate,

we review only the trial court's decision

...we do not address arguments not made before the trial court."); 2AKARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.4 author's cmt. 6, at 195 (8th ed. 2014) (observing that a ruling on a motion to vacate is appealable, butthe appeal brings up only the question ofwhetherthe trial court abused its discretion in denying the motion to vacate, not the merits ofthe judgmentitself). The rules are clear and the case law is well settled. Moreover, the untimeliness of appealing anything otherthan denial ofthe motion to vacate was essentially conceded by the mother when a commissioner ofthis courtreviewed appealability in the fall of2015. In a brieffiled with this court, the mother argued thatthe trial court's order denying her motion to vacate was appealable ofright "pursuantto RAP 2.2(a)(10)." 1 Appellant's Mem. on Appealability at 2-3. A commissioner ofthis courtthen determined that "the mother may appeal as a matter ofright the Oct. 7, 2015 Order." Comm'r'sRuling, In re

1RAP 2.2(a)(l0)provides that among the only superior court decisions from which a party may appeal is "[a]n order granting or denying a motion to vacate a judgment." 10No. 33762-6-111 In re ParentalRights to E.R.D.

ParentalRights to E.R.D., No. 33762-6-111, at 1 (Wash. Ct. App. Oct. 21, 2015). No motion to modify that ruling was filed. Forthese reasons, only two ofthe mother's assignments oferror are properly before the court: the error she assigns to the trial court's October 7, 2015 order denying hermotion to set aside default and order oftermination, andher assignment oferrorto a single finding within that order. The only finding in the October 7, 2015 order to whichthe mother assigns error is the following portion offinding 2.3: The mother did not appear for the hearing on October 23, 2014[,] even though she had beenproperly served; therefore, she was in default. Br. ofAppellant at 2. She has not assigned errorto the court's finding 2.1, that "[t]he mother's testimony was not credible," orto any others. CP at 83. The court's remaining findings are verities on appeal. RAP 10.3(g);In re Interest of Mahaney, 146 Wn.2d 878, 895, 51 P.3d 776 (2002). Applicable law andstandardof review A motion for default may be made when a party against whom ajudgmentis soughthas failed to appear. CR 55(a)(l). A party who does not appear in the action before the motion for default is made is not entitled to notice ofthe motion. CR 55(a)(3). Forthis purpose, an action to permanently terminate parental rights is a newproceeding and not an extension ofthe dependency action, so appearance in the dependency action

11No. 33762-6-111 In re ParentalRights to E.R.D.

does not entitle aparty to notice ofa motion for default in the terminationproceeding. In

re Welfare of S.I., 184 Wn. App. 531, 540, 337 P.3d 1114 (2014), review denied, 183 Wn.2d 1002 (2015). A court may set aside a default order "[f]or good cause shown and upon such terms as [it] deemsjust." CR55(c)(l). To establish good cause under CR 55, a party may demonstrate excusable neglect and due diligence. S.J., 184 Wn. App. at 544 (quotingIn re Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999). "Aparty moving to vacate a default order is not required to demonstrate a meritorious defense to establish good cause," but "ifaparty offers evidence ofa meritorious defense, atrial court more likely abuses its discretion should it fail to vacate a default order." Id. "[A] parent's failure to respond to notices and summons ofa proceeding to terminate parental rights, in itself, does notpreclude the State from obtaining ajudgment permanently terminating thatparent'sright to the custody and care ofhis orher child." In re Dependency of C.R.B., 62 Wn. App. 608, 616, 814 P.2d 1197 (1991). "[A] child's right to a stable home cannot be put on hold interminably because a parent is absent from the courtroom and has failed to contact his or her attorney." Id. We review denial ofa motion to vacate an order ofdefault for an abuse of discretion. S.J., 184 Wn. App. at 543-44. A court abuses its discretion ifits decision is manifestly unreasonable orbased onuntenable grounds.

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Even where an order ofdefault has been entered, before ajudgmentterminating parental rights canbe entered, the court must have a meaningful hearing on the merits of the case in accordance with statutory requirements for termination. C.R.B., 62 Wn. App. at 616. Statutory procedural requirements mustbe satisfied, and factual findings made must be sufficiently specific to permit meaningful review. It is not enough for a caseworkerto provide testimony parroting the language ofthe statutory requirements. Under CR 60, the court may vacate an order orjudgmentwhen it results from procedural irregularity or excusable neglect. CR60(b)( 1 ). As with denial ofa motion to vacate an order ofdefault, we review denial ofa motion to vacate ajudgment for abuse of discretion. In re Welfare of MG., 148 Wn. App. 781,792,201 P.3d 354 (2009). Bases for motion The mother's motion to vacate the order ofdefault andjudgment did not identify its legal basis or the grounds on which she relied. See CP at 40-45. Giving her the benefit ofthe doubt, she arguably advanced three bases for reliefin the trial court: that she was not served with notice ofthe termination trial, that she appeared at the October 23 hearing through Cathy Busha, and excusable neglect. See id. 2 All three contentions

were addressed by the trial court. Its finding 2.3 includes a finding that she did not

2Had she chosen to do so, the mother might have been able to advance arguments reflected in her assignments oferror 3-8 in some form when she moved to vacate. We express no view on that score. But under even the most generous reading ofher motion papers and oral argument, none ofthose errors were assertedbelow. We decline to consider them for the first time on appeal. See RAP 2.5(a). 13No. 33762-6-111 In re ParentalRights to E.R.D.

appear for the hearing on October 23 and that she had beenproperly served. Finding 2.8 includes the trial court's finding that no evidence was presentedthat would authorize the court to set aside thejudgmentpursuantto CR 60(b)( 1) (authorizing vacating on grounds including inadvertence, surprise, and excusable neglect). Our appellate review ofa trial court's findings is limited to whetherthey are supported by substantial evidence. In re Welfare of Ca.R., 191 Wn. App. 601, 608, 365 P.3d 186 (2015). Substantial evidence exists if, when viewing the evidence in the light most favorable to the prevailingparty, arational trier offact could find the fact more likelythannottobetrue. Id. at608-09(quotinglnre WelfareofXT, 174 Wn.App. 733, 737, 300 P.3d 824 (2013). We do not reweigh evidence orreassess witness credibility. Properservice. Ms. Brown's testimony is sufficient, standing alone, to support the trial court's finding thatthe mother was properly served. 

### It is further supported by her own and Ms. McCauley's contemporaneous documentation. The only contrary testimony-the mother's-was found by the court not to be credible. Substantial evidence supports the trial court's finding that the mother was properly served. Appearance in theproceeding. The mother argues, conclusorily, that "Ms. Busha appeared for [the mother]" on October 23, 2014. Br. ofAppellant at 6. The only evidence she cites are Ms. Busha's statements to the court on that occasion, including Ms. Busha's statements that "I can appear-herbehalf' and "I'mwillingto represent 14No. 33762-6-111 In re ParentalRights to E.R.D.

her." Id. (emphasis added) (citing RP (Oct. 23, 2014) at 3-4). Butthe crux ofthe existence ofan attorney-clientrelationship is whetherthe clientbelieves or intends that such a relation exists. State ex rel. Slusser v. Billet, 52 Wn. App. 561, 564, 762 P.2d 350 (1988) (citingIn re McGlothen, 99 Wn.2d 515,522,663 P.2d 1330 (1983)). Ms. Busha's "willingness" to appear on October 23, 2014, tells us nothing aboutthe mother's beliefor intention. Amongthe evidence that supports the trial court's finding that the mother did not appear through Ms. Busha on October 23 is the following:

• Maura Brown's testimony on July 30, 2015, that when served, the mother told Ms. Brown she anticipated retaining different counsel;

• The notice and summons for the termination trial, stating, "YOUARE NOTREPRESENTED BYA LAWYER IN THIS TERMINATION PROCEEDINGEVEN

### IF YOU WERE APPOINTED A LAWYER IN THE PRIORDEPENDENCY CASE. YOU MUSTREAPPLYFOR APPOINTMENT OF A LAWYER IN THIS CASE." CP at 11;

• Ms. Dixon's earlier cited expression ofdoubt on October 23, 2014, that Ms. Busharepresented the mother, whichMs. Busha did not contest;
• The fact thatthe trial court encouraged Ms. Bushato contactthe mother about further representation butMs. Busha did notthen appear in the terminationproceeding until contactedby the Office ofPublic Defense the following spring; and

• The fact that nowhere in Ms. Busha's materials filed withthe trial courthas she ever asserted or offered evidence that she was in fact representing the mother on October 23, 2014. Our dissenting colleague identifies three statements made by the Department's lawyer orthe court during the October 23 hearing that he argues treatedMs. Busha as the 15No. 33762-6-111 In re ParentalRights to E.R.D.

mother's lawyer; ergo, Ms. Bushawas the mother's lawyer. First, he points outthatthe Department's lawyer claimedthe Departmenthad served the terminationpetition personally on the mother and "providedher counsel with a courtesy copy ofthepetition

as well as the notice and summons." RP (Oct. 23, 2014) at 3. The Department does not say, nor do the clerk's papers reveal, what counsel was given a courtesy copy. As far as

we know, the Departmentprovides courtesy copies ofterminationpaperworkto lawyers representing parents in a dependency, knowingthat no one will be misled since the notice and summons states thatthe lawyerwill not representthe parent in the termination proceeding unless reappointed for thatpurpose. See CP at 11. Second, the dissentpoints to the fact thatthe Department's lawyer statedthatMs. Busha could later make a motionto set aside a default. The lawyer's entire (and clear) argumentto the court was thatMs. Bushacould not act for the motherthat day because she had not been appointed, butwouldhave "an opportunity to make a motionto setthe · default aside later if the situation changes." RP (Oct. 23, 2014) at4 (emphasis added). The statement is consistentwiththe fact that Ms. Bushadid notrepresentthe mother at the time ofthe hearing. Third, the dissentpoints to the trial court's comment, after a November 13 date

was proposed for continuingthe hearing, that "hopefullythat will-Ms. Busha, you'll be able to-have contact with your client, and take whatever steps are necessary." RP (Oct. 23, 2014) at 5. It is manifest from the record ofthe October23 hearing as a whole that 16

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the trial court did not view Ms. Busha as currently representing the mother. Reasonably read, the trial court's statement simply reflected the fact that Ms. Bushawas willing and had offeredto take on the mother's representation and the trial courthoped that she would be in contact with the mother. We do notreweigh evidence. The evidence that supports the trial court's finding that the mother did not appearthrough Ms. Busha is far more substantial than these three pieces ofevidence relied on by the dissent. Excusable neglect. The mother's only other argument made in moving to vacate the default andjudgmentwas that she had been homeless during the period leading up to the termination trial, did not always see her mail, lacked a phone, and was on a "downhill spiral." CP at 43-44. The trial court found that no evidence was presentedthat would support vacating thejudgmenton the basis ofexcusable neglect. We bear in mind the trial court's finding in December 2014 that E.R.D. had not lived with her mother since July 2012 and was benefittingphysically, emotionally, and educationally from the stability and nurturing she was receiving from the foster family thathoped to adopt her. CP at 37. Particularly given E.R.D.'s needs, the mother's excuses-attributableto issues for which she had been offered services for over 18 months-are not "excusable" neglect. CfRosanderv. Nightrunners Transp., Ltd., 147 Wn. App. 392, 407, 196 P.3d 711 (2008) (even neglect ofa case due to a diagnosed medical disability is not excusable neglect). Her admission that she was in a nonfunctional downhill spiral into November 2014 17

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reveals that she probably could nothave defended against termination at the December 2014 trial, reducing the likelihood that the trial court abused its discretion in denying the motion to vacate. S.J., 184 Wn. App. at 544.3 The trial court's findings are supportedby substantial evidence. We find no abuse ofdiscretion in its denial ofthe motion to vacate. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. 

# d?~~ ,} doway,J. ~ 1 I CONCUR:

Pennell, J.

3 The mother's declaration and argument offered before the July 30, 2015 hearing maintained that she was clean and soberbeginning in November 2014. But at the July 30 hearing she admitted that even afterNovember 2014, she "had one relapse in treatment and [that] was dealt with." RP (July 30, 2015) at 15. 18No. 33762-6-111 FEARING, C.J.

- (dissenting) 

### I conclude that the mother, Penelope Deaton, appeared in the parental termination action through her attorney, Cathy Busha. Therefore, the State needed to have given Ms. Bushanotice before entering a default order oftermination. Failure to give notice renders the order void. I respectively dissent and would reverse the trial court's refusal to vacate the default order. FACTS This appeal concerns the parental rights ofPenelope Deaton to Esther Deaton. Both names are fictitious. Esther Deaton was born on June 11, 2004. Penelope Deaton adopted Esther, when Estherwas a baby. Penelope's sister gave birthto Esther. The pertinent facts ofthis appeal surround events during the terminationproceeding rather than Penelope Deaton's parenting history. On March 26, 2013, thejuvenile court entered an agreed order ofdependency for Esther Deaton, at which time Esther entered foster care. Penelope Deaton's identified parenting deficiencies then included untreated substance abuse and untreated mental health issues.

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. No. 33762-6-III In re the Welfare of E.R.D. (dissent)

PROCEDURE OnJuly 24, 2014, the State ofWashington filed a petition for termination ofthe parent-child relationship between Penelope and EstherDeaton. OnAugust 11, 2014, the State filed additional, but conflicting, pleadings. The State filed a note for trial setting, which read, in relevantpart: PLEASE TAKE NOTEthatthis case will be brought on the trial setting docket for assignment for a trial date onthe 27th day of October 2014, at 9:00 a.m. A list ofyour available trial dates must be filed with the court before the setting date. Clerk's Papers (CP) at 7 (emphasis added). The State also filed a notice-first set termination hearing, which declared, in pertinentpart: A first settermination hearing before the courtwill be heard at the Kittitas County Superior Court, Juvenile Department, located at 205 West 5thAvenue, Ellensburg, WA 98926, on the 23rdday of October, 2014, at the hour of9:00 a.m. CP at 9 (emphasis added). Finally, the State filed a notice and summons/order, which stated: STATE OF WASHINGTON TO: Name: [Penelope Deaton], mother I. Notice ofHearing 1.1 You are notified that a petition, a copy ofwhich is attached, was filed withthis court allegingthat the above-named child is dependent and a permanenttermination ofthe parent-childrelationship should occur. A termination petition, ifgranted, will result inpermanent loss ofyour parental rights. Notice: Ifyour child is placed in out-of-home care, you may be held 2No. 33762-6-III In re the Welfare of E.R.D. (dissent) responsible for the support ofthe child. 1.2 The courthas scheduled a fact-finding hearing on October23, 2014, at 9:00 am, at Kittitas County Superior Court, Juvenile Department, located at 205 West 5th Avenue, Ellensburg, WA 98926. 1.3 The purpose ofthe fact finding hearing is to hear and consider evidence on the petition. You should be present at this hearing. 1.4 Ifyou do not appearthe courtmayenteran orderinyour absencepermanently terminating yourparental rights. 

### II. Summons/Order to Appear 2.1 You aresummonedandrequiredto appear at the hearing on the date, time, and place set forth above. Notice: Violation ofthis Order or Summons is Subject to a Proceeding for Contempt ofCourt Pursuant to RCW 13.34.070. 

### III. Advice ofRights 3.1 Youhave important legal rights, and you must take steps to protect your interest. 3.2 You have the right to a fact-finding hearing before ajudge. At the hearing, you have the right to speak on your ownbehalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to thejudge. You should attend this hearing. 3.3 You have the right to be represented by a lawyer. Ifyou cannot afford a lawyer you have the right to request that the court appoint a lawyer to represent you at public expense. Ifyou qualify, a lawyer will be appointed by the court to represent you. 3.4 Your lawyer can look at the social and legal files in your case, talk to the supervising agency or other agencies, tell you about the law, help you understand your rights and help you at hearings. 3.5 Ifyou wish to have a lawyer appointed, contact Superior Court Clerk at 509-962-7531 and ask for the Dependency Unit Clerk or appear at the Kittitas County Superior Court Clerk's Office, Kittitas County Superior Court, Juvenile Department, located at 205 West 5th Avenue, Ellensburg, WA 98926. 3.6 YOU ARENOT REPRESENTED BYA LAWYER IN THIS TERMINATION PROCEEDING EVEN IF YOU WERE APPOINTED A 

### 3No. 33762-6-III In re the Welfare of E.R.D. (dissent)

LAWYER IN THE PRIORDEPENDENCY CASE. YOU MUST REAPPLY FORAPPOINTMENT OF A LAWYER IN THIS CASE. IF YOU ORA LA WYER ON YOURBEHALF DOES NOT APPEAR IN THIS CASE, YOU WILL BE DEFAULTED AND TERMINATION OF YOURPARENTAL RIGHTS GRANTED. You may call Ellensburg DCFS for more information about your child. The agency's name and telephone numbers are: Ellensburg DCFS Office, (509) 925-0440 CP at 10-11 (capitalization, underscoring, and boldfaceprint in original). Observe that the note for trial setting established a hearing date ofOctober 27, 2014, for the purpose of scheduling a later trial date. The notice-first set termination hearing and the notice and summons/order established a termination trial ofOctober 23, 2014. In a return ofservice, Maura Brown, Penelope Deaton's social worker, averred that she served Deaton, on August 21, 2014, at 5:15 p.m., with a petition for termination ofparent-child relationship and "anotice and summons/order, a copy ofwhich is attached." CP at 24. No copy ofany document is attached to the return. Penelope Deaton contends no one servedher with paperwork for a termination hearing. Penelope Deaton did not appear at the October 23, 2014 hearing. Cathy Busha, Deaton's dependency attorney, was present. We do not know ifMs. Bushawas present in partto assist Penelope Deaton or ifherpresence was fortuitous. At the beginning of the hearing, the State ofWashington's counsel remarked: MS. DIXON:

... The Departmentpersonally served Ms. [Deaton] with a copy ofthe petition and notice offiling on August 21st, and provided her counselwith a courtesy copy ofthe petition as well as the notice and summons. 4

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### No. 33762-6-III In re the Welfare of E.R.D. 

### (dissent)

Report ofProceedings (RP) (Oct. 23, 2014) at 3 (emphasis added). The State's attorney did not identify the counsel for Penelope Deaton to whom the State provided a copy of the petition, notice, and summons, but we do not know ofany other attorney who ever represented Deaton otherthan Cathy Busha. During the October 23 hearing, the following colloquy occurred between Cathy Busha and the court: MS. BUSHA: Your Honor, I'vebeen representing [P.D.]-the dependency for quite a long time. She has been in contact with me. I'm not sure why she's not here today. THE COURT: Oh. MS. BUSHA: However, I can appear-herbehalf-andwe can set dates for the termination. Iknow she does not want her parental rights terminated-. We had been working towards a guardianship and that fellthroughTHE COURT: Oh. MS. BUSHA:-(inaudible)with that. So I would ask that there not be a default today. !-(inaudible)I'm willing to represent her, and-maybewe can work on dates for the trial. THE COURT: Uh-huh. Okay. RP (Oct. 23, 2014) at 3-4. We do not know ifthe trial court's remark of"okay" meant that the court appointed Cathy Bushato represent Penelope Deaton. Later comments by the trial court show that his comment was not approval ofMs. Busha's request that the court refrain from entering a default against Deaton. During the October 23 hearing, the trial court next listened to the State's attorney: MS. DIXON: Your Honor, I don't think there was an affirmative request for counsel or any indication that she has asked Ms. Bushato 5No. 33762-6-III In re the Welfare of E.R.D. (dissent) represent her today. We are asking for the order ofdefault given that we have a termination trial was already set for today I'm asking (inaudible) your Honor, in regards to Ms. [Deaton] so that would give Ms. Busha an opportunity to make a motion to set the default aside later ifthat situation changes. Buttoday I'm asking that the courtTHE COURT: I'll do that. All right. RP (Oct. 23, 2014) at 4. Afterhearing from EstherDeaton's guardian ad litem, the trial court next asked the State's counsel: THE COURT:

... And-do you have a date in mind, Ms. Dixon? MS. DIXON: Your Honor, ifwe canjust set it over to the nextdocketTHE COURT: Okay. MS. DIXON:-11/13. THE COURT: Sounds good. And hopefully that will-Ms. Busha, you'll be able to---have contact withyour client, and take whatever steps are necessary. Okay? MS. DIXON: Thankyou, your Honor. RP (Oct. 23, 2014) at 5 (emphasis added). Cathy Busha did not answer the court's question of"okay?" The State took the position that Ms. Bushawas not Penelope Deaton's attorney, yet the State probably referred to Ms. Busha as Deaton's "counsel" and the trial courtreferred to Deaton as Ms. Busha's "client." The October 23 colloquy suggests that the court scheduled a trial for November 13. Nevertheless, on October 29, 2014, the superior court administrator sent a notice of trial date, schedulingthe trial on the termination petition to begin January 21, 2015. The notice indicatedthat the administrator sent a copy to Penelope Deaton, but no copy to 6No. 33762-6-111 In re the Welfare of E.R.D. (dissent) Cathy Busha. The postal service returnedto the court administratorthe notice to Deaton

on the basis thatDeatonhad moved and left no forwarding address. OnNovember 5, 2014, the trial court entered a written order adjudging Penelope Deatonto be in default. OnNovember 21, 2014, the State ofWashington's counsel filed a notice resetting the terminationpetition trial for December 11, 2014. We do notknow why the State's counsel sentthe notice oftrial, when the court administrator sent the earlier notice. The State did not send a copy ofthe new trial settingto Penelope Deaton or Cathy Busha. OnDecember 11, 2014, the trial court conducted a termination trial. Penelope Deaton and Cathy Bushawere absent. We do notknow how long the hearing lasted. The transcript oftestimony continues for sixteenpages. Atthe conclusion ofthe trial, the court entered findings offact, conclusions of law, and an order oftermination. OnDecember 18, 2014, the trial court entered amended findings offact, conclusions oflaw, and order terminating the parent-childrelationship. Pertinentto this appeal the trial court found: 1.9 All services ordered underRCW 13.34.136 have been offered or provided and all necessary services, reasonably available, capable of correctingthe parental deficiencies within the foreseeable future have been offered orprovidedto the parents in an express and understandable manner.... 1.10 The mother's parental deficiencies have notbeen corrected

.... 1.11 There is little likelihoodthat conditions will be remedied so that the child can be returned to the mother inthe near future

.... 1.12 The mother is currently unfitto parentbecause she continues to view herselfand [EstherDeaton] as "victims" ofthe Department and has failed to remediate parental deficiencies in ordertoprovide [Esther Deaton] 7No. 33762-6-III In re the Welfare of E.R.D. (dissent)

with a safe and secure home environment.

... 1.13 Continuation ofthe parent-child relationship clearly diminishes the child's prospects for integration into a stable and permanenthome

.... 1.14 Based on the foregoing findings offact, termination ofparental rights is in [EstherDeaton's] best interests

.... CP at 27-30. Penelope Deaton last visited with her daughterEsther on December 18, 2015. Accordingto Penelope, the visit ended early. MauraBrownthen handed Penelope an envelope and told Penelope that the courthad terminated herparental rights. Penelope declared that she would appeal the termination. Brownresponded thatthe time had expired for an appeal. Penelope Deaton thereafter contacted the local Office ofPublic Defense in order to secure an attorney to assist her in the termination case. The office assigned Cathy Bushato represent Deaton. On March 18, 2015, Penelope Deaton filed a motionto set aside the default termination order. Cathy Busha signedthe motion as counsel for Deaton. In support of the motion, Ms. Busha signed a declaration, in which she averred that Penelope called her and said she was unaware ofthe date ofany terminationtrial. In support ofher motion, Penelope Deaton declared that she lacked knowledge ofany terminationtrial court hearing. In support ofher motion to vacate the default order, Penelope Deaton also swore: I have made many changes in my life. Atthe time ofthe 8No. 33762-6-III In re the Welfare of E.R.D. (dissent) dependency and termination trial, I was having a great deal ofdifficulty in my life and was homeless for some months. I was on a downhill spiral. I did not see some ofmy mail norhad aphone sometimes. I am now staying with a roommate who is my sober and supportperson. He has helped may [sic] people who have addiction problems. When I learned that my parental rights had been terminated and that there had been a court hearing, I contactedthe Office ofPublic Defense and spoke with Amelia Watson. I could not afford an attorney and am considered indigent at this time. I asked ifMs. Busha could represent me again. The[y] indicatedthat they would call her. I then received a call from Ms. Busha's office in order to set up an appointment. I have been clean and sober since November, 2014. I am attending group sessions and drug treatment at ADDS. I have no excuses for my behavior and I am taking full responsibility for my actions. I do not blame anyone except myself. I wish to demonstrate to the court and DSHS [department ofsocial and health services] that I am able to remain sober and do the right things for my daughter. CP at 43-44. Deaton filed no memorandum oflawin support ofher motion to vacate. On July 30, 2015, the trial court conducted a testimonial hearing in orderto resolve the dispute between Penelope Deaton and Maura Brown as to whether Brown served Deaton, on August 21, 2014, with the termination petition and hearing notice. During the hearing, Maura Brown testified that, on August 21, she went to the Caring Hearts Visitation Facility to see Penelope Deaton. She went to the facility, because she had tried to contact Deaton elsewhere with no success, and Brownknew that Deaton would visit with her daughter at the facility on August 21. Brown lacked a current address for Deaton. According to Brown, she served Deaton with a notice and summons for atermination trial at the facility. She also told Deaton ofthe date for the trial and encouraged Deaton to contact her attorney. According to Brown, Deaton acted cordially 9No. 33762-6-III In re the Welfare of E.R.D. (dissent)

and statedthat she soughtto "procure other legal representation." RP (July 30, 2015) at 8. The following morning, Maura Brownwrote a note in her case file confirming the interaction with Deaton. Penelope Deatontestified, during the evidentiary hearing, that, on August 21, 2014, Maura Brownhanded her a sealed envelope. Deaton did not then open the envelope because she did notwantEsther to see courtpapers. Deaton opened the envelope when she leftthe visitation facility and enteredher car. The envelope contained paperwork for a permanencyplanning hearing. Deaton addedthat she would have attended any termination hearing and objected to termination ofherparentalrights. Afterthe completion oftestimony on July 30, 2015, Cathy Busha, counsel for Penelope Deaton argued, in part: I was here when I saw-forthe termination trial when I sawher name on the docket. I had notbeen appointed. AtthatpointI did ask Your Honor for a continuance because I was surprised that she was not here, because I know her love for her daughter and I know she always has been in front ofthis court saying I want youto hear my side. Ithas been many, many times. So I would ask thatthis default be set aside. The courthas authority to do that, so that Ms. [Deaton] can present her side ofthe story. I mean, this is termination ofparental rights. This is big. So she isjust asking for due process. She's asking for a trial, and I believe I think she has the right to do so, YourHonor. RP (July 30, 2015) at 21-22. Atthe conclusion ofthe July 30 evidentiary hearing, the trial court commented that it found the testimony ofMaura Brown credible and that it concluded Brown served 10No. 33762-6-111 In re the Welfare of E.R.D. (dissent) Penelope Deaton with terminationproceedings pleadings. The trial court denied Deaton's motion to vacate the defaultjudgment. The court did not sign a written order denying the motion until October 7, 2015. On August 26, 2015, Penelope Deaton filed a notice ofappeal ofthe order regarding termination oftheparent-childrelationship entered on October 23, 2014, by default. The notice ofappeal noted that Deaton filed a motion to set aside the default, but the trial court confirmedthe defaultjudgment. Because Deaton filed the notice ofappeal before entry ofthe written order denying the motion to vacate, this court directed the parties to address whetherDeaton could appeal. Our court commissioner ruled that: This Court has determined that the mother may appeal as a matter of right the October 7, 2015 Order. See RAP 2.2(a)(l0). Accordingly, IT IS ORDERED, the matter is appealable as a matter ofright. Commissioner's Ruling, In re Termination ofE.R.D., No. 33762-6-III, at 1 (Wash. Ct. App. Oct. 21, 2015). LAWAND ANALYSIS On appeal, Penelope Deaton assigns error to the trial court's refusal to set aside the default order and the default order itself. She contends that the trial courtmistakenly failed to appoint Cathy Busha as her counsel at the October 23, 2014 hearing, erroneously agreed, on October 23, to enter a default when her counsel tried to appear on her behalf, incorrectly signed an order ofdefault on November 5, 2014, when the State failed to give five days' notice to her counsel ofthe entry ofthe order, mistakenly refused to grant her 11No. 33762-6-III In re the Welfare of E.R.D. (dissent)

motion to vacate when the order ofdefault was void, and wrongly refused to vacate the default order on the basis that insufficient evidence supported the termination ofher parental rights. These arguments implicate a parent's rightto appointed counsel during a parental terminationproceeding. The argumentthat Cathy Busha appeared on Deaton's behalfoverlaps withthe contentionthat the trial court should have appointed Ms. Busha

as counsel. I agree with all butthe last ofPenelope Deaton's assignments oferror. The State ofWashington erects twoprocedural obstacles to this court reaching the merits ofPenelope Deaton's arguments. Normally an opinion would first address those procedural arguments. Nevertheless, because the resolution ofthe merits dictates the response to the State's appellate barriers, I address the merits first. Issue 1: Did CathyBusha appear on behalf of Penelope Deaton at the October 23, 2014 hearing? Answer 1: Yes. Cathy Bushatold the trial court, during the October 23 hearing, that she represented Penelope Deaton in the dependency action, that she wished to appear on Deaton's behalf, that Deaton did not wish herparental rights terminated, that the court should set a date for trial, and that the trial court should not enter a default order. The State responded that it was not aware that Deaton wished Ms. Bushato represent her at the October 23 hearing. The trial court did not expressly rule that Cathy Bushahad not or could not appear on behalfofPenelope Deaton. Nevertheless, steps taken at the October 12No. 33762-6-III In re the Welfare of E.R.D. (dissent)

23 hearing and later suggestthat the trial court did not consider Ms. Bushato have appeared on behalfofDeaton. The State proceeded as ifno appearance occurred. The first sentence ofRCW4.28.210 declares: A defendant appears in an action when he or she answers, demurs, makes any application for an order therein, or gives the plaintiffwritten notice ofhis or her appearance. The statute's list ofactions constituting an appearance is not exclusive and informal acts

can constitute appearance. City of DesMoines v. PersonalPropertyIdentifiedas $81,231 in US. Currency, 87 Wn. App. 689,696,943 P.2d 669 (1997). Because default judgments are disfavored, the concept of"appearance" is to be construed broadly when a party moves to vacate a default order. Colacurcio v. Burger, 110 Wn. App. 488, 494-95, 41 P.3d 506 (2002); City of DesMoines v. PersonalPropertyIdentifiedas $81,231 in UnitedStates Currency, 87 Wn. App. at 696. Because ofthe nature ofaparental termination proceeding, a court should abhor a default and construe an appearance broadly to the extreme. A parent holds a fundamental liberty interest, protected by the Fourteenth Amendmentto the United States Constitution, in the care, custody and control ofa child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). Courts undertake a grave responsibility when they deprive parents ofthe care, custody and control oftheir natural children. In re 13No. 33762-6-III In re the Welfare of E.R.D. (dissent) Welfare of Sego, 82 Wn.2d 736,738,513 P.2d 831 (1973). Therefore, terminating parental rights is one ofthe severest ofstate actions and implicates fundamental interests. In re Welfare of JM, 130 Wn. App. 912, 921, 125 P.3d 245 (2005). The child also has an interest in preventing the erroneous termination ofits relationship with her natural parents. Santosky v. Kramer, 455 U.S. at 765. A party may appear through an attorney. Dlouhyv. Dlouhy, 55 Wn.2d 718, 721- 22, 349 P.2d 1073 (1960). Typically, the appearance is by an attorney. The State commented, at the October 23 hearing, that Cathy Busha lacked authority to appear on behalfofPenelope Deaton. Nevertheless, an attorney who appears in court is presumed to be authorized to represent the client, and the attorney need not provide proofof authorization. ParkwayBank & Trust Co. v. Korzen, 2013 IL 130380, 2 N.E.3d 1052, 1074, 377 Ill. Dec 771; Shields v. QHG of Springdale, Inc., 2009 Ark. 88, 302 S.W.3d 598, 602; Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So. 2d 45, 54 (Ala. 2003); Streit v. Covington & Crowe, 82 Cal. App. 4th 441,446, 98 Cal. Rptr. 2d 193 (2000); Gray v. FirstNationalBankof Chicago, 388 Ill. 124, 129, 57 N.E.2d 363 (1944). This court has twice held that an attorney, who lacked authority to represent a client because he was not licensed in Washington State orheld a conflict ofinterest, did not negate an appearance

on behalfofthe client by the attorney. Servatron, Inc. v. Intelligent Wireless Products, Inc., 186 Wn. App. 666, 676, 346 P.3d 831 (2015); Sacotte Construction, Inc. v. National Fire &Marine Insurance Co., 143 Wn. App. 410, 416, 177 P.3d 1147 (2008). 14No. 33762-6-111 In re the Welfare of E.R.D. (dissent)

The attorney appointed to represent aparent in a dependency action is generally appointed to represent the parent in a parental termination proceeding. In re Welfare of S.I., 184 Wn. App. 531, 559, 337 P.3d 1114 (2014), review denied, 183 Wn.2d 1002, 349 P.3d 857 (2015) (Fearing, J. dissenting). Forthis reason alone, Cathy Busha should have been allowed to appear on behalfofPenelope Deaton. One might emphasize that Cathy Busha, on October 23, 2014, did not employ the words "I am appearing on behalfofPenelope Deaton," but instead remarked that she "can appear." By emphasizing the language used, one might argue there was no appearance, only an expression ofan ability to appear. Such a conclusion, however, promotes form over substance. Ms. Busha specifically expressed a desire to appear and stated that Deaton wished to oppose the termination. Again, Ms. Bushawas Deaton's counsel in the dependency action. At the hearing on the motion to vacate the default order, Maura Browntestified that Penelope Deatontold her, on August 21, 2014, that she would hire an attorney, other than Cathy Busha. Nevertheless, this testimony was not known by the trial court during the October 23 hearing. When Deaton learned ofthe default order, she wentto the Office ofPublic Defense since she was indigent and could not hire an attorney onher own. Ms. Bushathereafter represented her. Had Deaton sought an attorney on October 23, she likely wouldhave requested and received Cathy Busha. The State equates this case to Welfare of S.I., in which this court found the lack of 15No. 33762-6-111 In re the Welfare of E.R.D. (dissent)

an appearance. Nevertheless, SJ is both factually and legally distinct. Unlike the mother in SJ, Penelope Deaton appeared, through Cathy Busha, at the initial termination hearing. In addition, Deaton is not arguing, as did S.I.'s mother, that her many appearances during the dependency constitute an appearance. In re Dependency ofC.R.B., 62 Wn. App. 608, 814 P.2d 1197 (1991) controls this appeal. In C.R.B., the State petitioned to take C.R.B. from his mother on August 28, 1989, when he was three days old. On January 31, 1990, the State filed apetition for termination ofparental rights. Concurrently the State filed a "Certification in Support of Notice by Publication." C.R.B., 62 Wn. App. at 611. The trial court set the termination hearing for May 9, 1990. The mother failed to appear at thathearing. Nevertheless, her attorney Virginia Marshall appeared on her behalfand informed the court that she had not had contact with the mother since February of 1990, at which time the mother expressed

an interest in having the child returned to her care and her willingness to participate in court-ordered services. The court held that, since the mother communicated her intention ofcontesting the termination to her attorney only two months earlier, and her attorney contestedthe action at the hearing, the mother "appeared" under CR 55(a)(l). Comments by the State and by the trial court, during the October 23 hearing, conflict with the State's position that Cathy Busha could not appear for Penelope Deaton and conflict with any trial courtruling that Ms. Busha could not appear. The State's counsel stated that the State had delivered a copy ofthe terminationpetition to Deaton's 16No. 33762-6-111 In re the Welfare of E.R.D. (dissent)

counsel. The only person ever identified as Deaton's counsel in the course ofthe dependency and termination actions was Cathy Busha. The State should not be free to represent to the courtthat Ms. Busha serves as Deaton's counsel and then deny the existence ofan attorney-client relationship between the two. During the October 23 hearing, the State's attorney also mentionedthat "Ms. Busha [could]

... make a motion to setthe default aside later ifthat situation changes." RP (Oct. 23, 2014) at 4. This commentpresupposes that Cathy Busha is counsel for Penelope Deaton. When scheduling a hearing date, the trial court commented: "Andhopefully that will-Ms. Busha, you'll be able to-have contactwithyour client, and take whatever steps are necessary." RP (Oct. 23, 2014) at 5 (emphasis added). This commentreflects that the trial court, in addition to the State, considered Ms. Bushato be Penelope Deaton's counsel. Thus, Ms. Busha should have been able to appear for Deaton. Being a party's lawsuit attorney is similarto beingpregnant. One is either pregnant ornotpregnant. One is either a party's lawsuit attorney or notthe party's attorney. The trial court and the State should nothave considered Penelope Deaton the client ofCathy Busha for some purposes, but not for the purpose ofMs. Busha entering

an appearance onbehalfofDeaton. This writer dissented in In re Welfare of S.I., 184 Wn. App. 531 (2014) and wrote that an appearance in a dependency action should constitute an appearance in the related termination proceeding. Forthis reason alone, the trial court in this appeal should have 17No. 33762-6-111 In re the Welfare of E.R.D. (dissent)

concluded that Penelope Deaton's appearance in her dependency action also constituted

an appearance in the termination proceeding. Issue 2: Whether the trial courtshouldhave appointed CathyBusha as counsel for Penelope Deaton, during the October 23, 2014 hearing, whenBusha requestedto appear andrepresentDeaton? Answer2: Yes. Penelope Deaton contends she was denied her statutory and constitutional right to legal counsel. She argues that Cathy Busha's appearance on her behalftriggered her right under RCW 13.34.090(2) to counsel in the termination action. The State responds that Deaton did not have the right to counsel because she failed to ask for counsel before the October 23 hearing. I agree with Penelope Deaton. Terminatingparental rights is one ofthe severest ofstate actions and implicates fundamental interests. ML.B. v. S.L.J., 519 U.S. 102,116,117 S. Ct. 555,136 L. Ed. 2d 473 (1996). When the state moves irrevocably to severthe parent-child bond, the rights ofparents to protection from unwarranted usurpation by the state are guaranteed by the Fourteenth Amendment. ML.B. v. S.L.J., 519 U.S. at 116. When the government seeks to terminate parental rights, the state must ensure thatjudicial proceedings are fundamentally fair. Lassiter v. Department of SocialServices of Durham County, 452 U.S. 18, 33-34, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). In Washington, fundamental fairness requires that the state appoint counsel for indigentparents. In re Welfare of J.M, 18No. 33762-6-III In re the Welfare of E.R.D. (dissent)

130 Wn. App. at 921 (2005) In Washington, the constitutional rightto counsel attaches to indigentparents in termination proceedings by way ofRCW 13.34.090(2). In re Dependency of Grove, 127 Wn.2d 221,232, 897 P.2d 1252 (1995). This right derives from the due process guaranties ofarticle I, section 3 ofthe Washington Constitution as well as the Fourteenth Amendment. In re Welfare of Luscier, 84 Wn.2d 135, 138, 524 P.2d 906 (1974). RCW 13.34.090 declares, in part: (2) At all stages ofaproceeding in which a child is alleged to be dependent, the child'sparent, guardian, or legal custodian has the right to be represented by counsel, and ifindigent, to have counsel appointed for him or her by the court. Unless waived in court, counsel shall be provided to the child's parent, guardian, or legal custodian, if suchperson (a) has appeared in theproceedingor requestedthe court to appoint counsel and (b) isfinancially unable to obtain counsel because of indigency. (Emphasis added.) The State argues that Penelope Deaton never appeared nor requested counsel be appointed. I have already discussed that Deaton appeared. Deaton appeared through Cathy Busha and thus satisfiedthe first prong ofRCW 13.34.090. Turning to the second prong, RCW 10.101.020 controls the determination of indigence. The statute states, in part: A determination ofindigency shall be made for all persons wishing the appointment ofcounsel in criminal,juvenile, involuntary commitment, and dependency cases. RCW 10.101.020(1). This determination must occur at eitherthe initial contact or the 19No. 33762-6-111 In re the Welfare of E.R.D. (dissent)

earliestpossible time allowed by the circumstances. RCW 10.101.020(3). Ifa determination ofeligibility cannot be made before the time when the first services are to be rendered, the court shall appoint an attorney on a provisional basis. RCW 10.101.020(4). We have no evidence about Penelope Deaton's financial ability to obtain counsel other than knowledge that Deaton received appointed counsel in the dependency action. Deaton argues that, because counsel had been appointed before, counsel would be appointed again. Such may have occurred. Regardless, because Deaton appeared, albeit through Cathy Busha, the trial court was required to appoint provisional counsel pursuant to RCW 10.101.020(4). Therefore, the trial court denied Deaton's constitutional and statutory right to counsel. The State suggests that Cathy Bushawould face an ethical dilemma, ifappointed

on October 23 to represent Penelope Deaton, because Ms. Busha did not know what position Deaton wished to take regarding the terminationpetition. The record shows otherwise. Deaton had told Ms. Bushathat Deaton wished to fight the termination. The State relies on In re the Dependency of A.G., 93 Wn. App. 268,968 P.2d 424 (1998) and In re the Welfare of Parzino, 22 Wn. App. 88, 587 P.2d 201 (1978) for support ofthe argument that Cathy Busha would have faced an ethical challenge if appointed at the October 23 hearing. Nevertheless, inA.G., the ethical dilemma arose at the termination hearing on the merits, not the initial hearing. The mother had not told the 20No. 33762-6-III In re the Welfare of E.R.D. (dissent) attorney she wished to resist the termination petition. The court allowed the attorney to represent the mother until the termination trial, despite a lack ofcommunication between attorney and client. Welfare of Parzino holds the same dissimilarities as Dependency of A.G. The State's analysis ofan ethical dilemma would render the appointment ofa defense attorney for an indigent accused difficult, ifnot impossible. The trial court appoints the attorney before the clienttells the attorney whetherthe client wishes to resist the criminal charges. The client usually discloses his wishes only after the attorney later meets with the client and discusses the case. Similarly, the trial court should have appointed Cathy Busha as the attorney for Penelope Deaton. Ms. Busha could then have attempted to communicate with Deaton and confirmed Deaton's desires. IfDeaton failed to communicate with Ms. Busha, Ms. Busha could have withdrawn at a later date. Issue 3: Whether the trial courtshouldhave vacatedthe default order that terminatedPenelopeDeaton 'sparental rights? Answer 3: Yes. The deprivation ofcounsel throughout the termination petition process resulted in Penelope Deaton defaulting and her parental rights being terminated without any defense. The trial court eventually signed a default order and conducted a termination trial without notice to Deaton's counsel, Cathy Busha, who had soughtto appear on Deaton's behalf. Because ofthe lack ofnotice, the default order should have been vacated on Deaton's 21No. 33762-6-III In re the Welfare of E.R.D. (dissent)

motion. Under CR 55(a)(3), ifa party has "appeared" before a motion for default has been filed, thatparty is entitledto notice ofthe motion before the trial court may enter a valid default order. Smith v. Arnold, 127 Wn. App. 98, 103, 110 P.3d 257 (2005). Consequently, ifa defendant has appeared but not given propernotice priorto entry of the order ofdefault, the defendant is entitled to vacation ofthe defaultjudgment as a matter ofright. Tiffin v. Hendricks, 44 Wn.2d 837,847,271 P.2d 683 (1954); ProfessionalMarine Co. v. Those Certain Underwriters atLloyd's, 118 Wn. App. 694, 708, 77 P.3d 658 (2003); Colacurcio v. Burger, 110 Wn. App. at 497 (2002); In re Marriage of Daley, 77 Wn. App. 29, 31, 888 P.2d 1194 (1994); Shreve v. Chamberlin, 66 Wn. App. 728,731,832 P.2d 1355 (1992). Ifthe default order is void, the court need not decide whether the motion to vacate is brought within a reasonable time, and whether the defendant has a defense to the claim. Colacurcio v. Burger, 110 Wn. App. at 497; Leen

v. Demopolis, 62 Wn. App. 473, 477-78, 815 P.2d 269 (1991). The courthas a nondiscretionary duty to vacate a voidjudgment, andjudgmentmust be vacated regardless ofthe lapse oftime. In re Dependency of A.G., 93 Wn. App. at 276 (1998); AllstateIns. Co. v. Khani, 75 Wn. App. 317, 323, 877 P.2d 724 (1994). Defaultjudgments are disfavored because it is the policy ofthe law that controversies be determined on the merits rather than by default. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576,581, 599 P.2d 1289 (1979); Dlouhy v. Dlouhy, 55 Wn.2d at 22No. 33762-6-III In re the Welfare of E.R.D. (dissent)

721 (1960); Colacurcio, 110 Wn. App. at 494. The fundamental guidingprinciple shouldbe whether or notjustice is being done. Justice will not be done ifhurried defaults are allowed any more than ifcontinuing delays are permitted. Butjustice might, at times, require a default or a delay. What is just and propermust be determined by the facts ofeach case, not by a hard and fast rule applicable to all situations regardless ofthe outcome. Griggs, 92 Wn.2d at 582 (quoting Widiucus v. Sw. Elec. Coop., Inc., 26 Ill. App. 2d 102, 109, 167 N.E.2d 799 (1960)). The majority comments that we review the trial court's decision for abuse of discretion. Consistent with this comment, under many, ifnot most, circumstances, the decision whether to vacate a defaultjudgment is within the trial court's sound discretion. Little v. King, 160 Wn.2d 696, 709, 161 P.3d 345 (2007); Griggs v. AverbeckRealty, 92 Wn.2d at 582; Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978). Nevertheless,

a courthas a nondiscretionary duty to vacate a voidjudgment. AllstateIns. Co. v. Khani, 75 Wn. App. at 323 (1994); Leen v. Demopolis, 62 Wn. App. at 478 (1991); In re Marriage of Markowski, 50 Wn. App. 633,635, 749 P.2d 754 (1988). Duringthe October 23, 2014, hearing, Cathy Busha heard the trial court schedule a termination trial for November 13, 2014. Still Ms. Busha, according to the court, had no right to appear at the hearing, so such notice held no impact. Just as important, the State, without notice to Ms. Busha, changed the trial date. Because ofa lack ofnotice to Penelope Deaton and her counsel, the trial court held no discretion butto vacate the default order oftermination ofparental rights. 23No. 33762-6-III In re the Welfare of E.R.D. (dissent)

The State emphasizes that, during the October 23 hearing, the trial court commented to Cathy Bushathat, before any later hearing, she "will-Ms. Busha, you'll be able to--have contact withyour client, and take whatever steps are necessary. Okay?" RP (Oct. 23, 2014) at 5 (emphasis added). The State may suggestthat the trial court's comment cures any defects in later entering a default order oftermination. Nevertheless, the trial court did not directly instruct Bushato attempt to locate Penelope Deaton. Cathy Busha did not answer the court's question. Despite the trial court's referring to Penelope Deaton as Ms. Busha's client, the trial court had refused to let Ms. Busha appear for Deaton. We have no evidence that Ms. Busha soughtto locate Deaton, and Ms. Busha would hold no reason to seek the location since no attorney-clientrelationship had been established. The State writes that "[i]t [the trial court] declined to sign the [default] order on October 23, 2014." Resp't's Br. at 12. From this, the State implies that the trial court wanted to give more time for someone to locate Penelope Deaton before entering a default order. The record does not supportthe assertion thatthe trial court "declined"to sign any default order on October 23. To the contrary, the State, during the hearing, asked for an order ofdefault, and the trial court responded: "I'll do that." RP (Oct. 23, 2014) at 4. The State, on October 23, never suggested any delay in presentation ofan order ofdefault in orderto accommodate Deaton. Instead, the State added that Deaton could seek to vacate the default order at a later date. For all we know, the delay in 24No. 33762-6-III In re the Welfare of E.R.D. (dissent) signing the default orderuntil November 5 was the result ofa delay in paperwork. The State also writes that: Additionally, the trial court held two substantive hearings on the mother's motion to vacate: one on July 23, 2015 to address the mother's motion, and another one on July 30, 2015 to specifically determine whether she had beenproperly served with a copy ofthe terminationpetition and notice and summons. See RP (Jul. 23, 2015) at 7-13; see RP (Jul. 30, 2015) at 2-23. The motherwas afforded notice and a meaningful hearing, both on the merits ofthe terminationpetition and on the mother's motion to vacate; her due process rights were not violated. Resp't's Br. at 35-36. This passage conveys the false impression that the trial court again reviewed the merits ofthe terminationpetition, with Penelope Deaton present and with Deaton granted the opportunity to challenge the evidence against her, on July 23 and 30. Although Deaton's counsel mentioned that Deaton had changed her behavior, the court did not conduct any hearing on the merits. Thejudge only addressed whetherthe default order should be vacated. I do not base my dissent on confusion in the pleadings served on Penelope Deaton. I comment, however, thatthe note for trial setting served on Deaton established a hearing date ofOctober 27, 2014, for the purpose ofscheduling a later trial date. The notice-first set termination hearing and the notice and summons/order established atermination trial ofOctober 23, 2014. The reader ofthe pleadings would face confusion as to the date to appear in court. Issue 4: Whether this appeals courtmay review thepropriety of the entry of the

25No. 33762-6-III In re the Welfare of E.R.D. (dissent) default order? Answer4: Yes, butwhether the court can review the default order is immaterial. Penelope Deaton also appealedthe denial of her motion to vacate andthis denial must be reversed. As previously noted, the State constructs several obstacles to this courtreaching the merits ofPenelope Deaton's argument that her constitutional rights were denied when the court entered an order ofdefault. First, the State argues that the only orderthis appellate court may review is the order denying the motion to vacate the default judgment. According to the State, Deaton failed to timely appeal the earlier default order, and, thus, this court may not review the order ofdefault. I disagree. The State relies onBjurstrom v. Campbell, 27 Wn. App. 449,618 P.2d 533 (1980), in which this court held that an appeal from denial ofa motion to vacate a default judgment is limited to the propriety ofthe denial not the impropriety ofthe underlying judgment. This court's majority cites other decisions for the same rule. In re Parenting & Support ofC.T., 193 Wn. App. 427,435,378 P.3d 183 (2016); In re Dependency of JMR., 160 Wn. App. 929, 938-39 n.4, 249 P.3d 193, reviewgranted inpart, 172 Wn.2d 1017, 262 P.3d 64 (2011). This rule has no application in our appeal because Penelope Deaton did not limit her appeal to the order denying her motion to vacate. In all three earlier decisions, the appellant only appealed the order denying the motion to vacate. The decisions do notpreclude the appellant from appealing both an order denying a motion to 26No. 33762-6-III In re the Welfare of E.R.D. (dissent)

vacate and a previous order entered by the trial court. No rule or decision precludes an appellant from appealing other orders in addition to an order denying a motion to vacate a default order. Any such rule would be unfair and couldpreclude this court from addressing an error in the trial court. Penelope Deaton's notice ofappeal expressly challenges the entry ofthe default order in October 2014. In her motion for accelerated review, she assigns error to the failure ofthe trial courtto appoint her counsel, the failure ofthe State to provide her counsel five days' notice before entering a default, and the entry ofthe default order. In her notice ofappeal, she also impliedly sought review ofthe order denying her motion to vacate when she mentioned the later order in her appeal notice. She assigns error, in her motion, to the trial court's failure to vacate the default order. The majority impliedly concludes that Penelope Deaton may not challenge the November 2014 termination order by default because our court commissioner's ruling on appealability included the language "the mother may appeal as a matter ofright the October 7, 2015 Order [denying vacation ofdefault]." Majority at 10-11. Nevertheless, the court commissioner did not rule that Deaton could not challenge any other order, or that a challenge to the order denying the motion to vacate did not include a challenge to the default order. The court commissioner's ruling came in the context ofdetermining appealability ofthe case as a whole, not in the context ofwhat decisions Deaton could appeal. 27 

# lNo. 33762-6-111 In re the Welfare of E.R.D. (dissent) Penelope Deatontimely appealed the order ofdefault entered on October 23, 2014. A party need not file a notice ofappeal within thirty days ofevery appealable order orjudgmentbut may instead await the final decision in the case. Fox v. Sunmaster Products, Inc., 115 Wn.2d 498, 505, 798 P.2d 808 (1990). Ifa timely notice ofappeal is filed from a final decision, the appellate court will reviewprior orders andjudgments,

even those which were immediately appealable, ifthey prejudicially affect the final judgment. Fox v. SunmasterProducts, Inc., 115 Wn.2d at 505. It makes no sense to mandate an immediate appeal from the earlier decision because to do so would only encourage multiple appeals. Franz v. Lance, 119 Wn.2d 780, 781, 836 P.2d 832 (1992). Penelope Deaton's timely appeal ofthe denial ofthe motion to vacate the default order of termination rendered timely her appeal ofthe default order. In the end, the dispute overwhether Penelope Deaton may appeal the entry ofthe default order lacks any relevance. The State does not contend that Deaton may not appeal the denial ofDeaton's motion to vacate the default order. Ample grounds exist to hold that the trial court erred when denying the motion to vacate. Issue 5: Whether PenelopeDeaton may raise on appeal the arguments that Cathy Busha appearedon her behalf andthe State deniedher constitutional right to an attorney, whenDeaton didnot raise those contentions during the litigation of her motion to vacate the default order? Answer 5: Yes, because the arguments entail lackof jurisdiction andmanifest 28No. 33762-6-111 In re the Welfare of E.R.D. (dissent)

constitutional error. The State may complain that Penelope Deaton did not raise below, during her motion to vacate, her argument that she had made an appearance and that the trial court should have appointed her counsel when Cathy Busha spoke on herbehalf. The record is not clear as to whetherDeatonraised the contentionbelow. Her major argument was that she had notbeen servedwith process. She filed no briefin support ofher motion. Nevertheless, her counsel, during the motion to vacate hearing, remarked that, during the October 23, 2014 hearing, she sought a continuance ofany attempt to enter a default and Deaton, by her motion to vacate, sought due process. Regardless, ofwhether Penelope Deaton raised her salient arguments at the time ofthe motion to vacate, we should still entertain the arguments. As shownpreviously, the arguments concern well established rules that, as a matter ofdue process, she is entitled to appointment ofcounsel and the defaultjudgment should not have been entered without notice to Deaton through counsel. Thus, her contentions, ifnew, constitute manifest constitutional error and defeat the trial court'sjurisdiction. RAP 2.5(a) reads: The appellate court may refuse to review any claim oferror which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack oftrial court jurisdiction, (2) failure to establish facts upon which reliefcan be granted, and (3) manifest error affecting a constitutional right. RAP 2.5(a) allows an appellant to raise for the first time "manifest error affecting a 29 

# INo. 33762-6-III In re the Welfare of E.R.D. (dissent)

constitutional right" and "lack oftrial courtjurisdiction." Constitutional errors are treated specially under RAP 2.5(a) because they often result in serious injustice to the accused and may adversely affectpublic perceptions ofthe fairness and integrity of judicialproceedings. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). Whether aparty received notice ofa default hearing is a question ofdue process which is ofconstitutional magnitude. In re C.R.B., 62 Wn. App. at 614-15 (1991). Under CR 55(a)(3) and CR 55(f)(l), a trial court acts without authority when it purports to enter a defaultjudgmentwithout notice against a party who has previously appeared. Shreve v. Chamberlin, 66 Wn. App. at 731 (1992). A trial court's lack of jurisdiction may be raised for the first time on appeal. In re Estate of Alsup, 181 Wn. App. 856, 868, 327 P.3d 1266 (2014). The majority relies onthe rule that the reviewing court will not entertain an argument in support ofa motion to vacate a defaultjudgmentthat was not raised before the trial court. Majority at 13 n.2. This rule does not apply, however, to a claim for first time on appeal thatthe trial court lackedjurisdiction orto issues affecting fundamental constitutional rights. State v. Santos, 104 Wn.2d 142, 145-46, 702 P.2d 1179 (1985).

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