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### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter ofthe Welfare of HIM
A Minor Child. No. 46504 - 3 -II

UNPUBLISHED OPINION
WORSWICK, P. J. — DD is the father of BD, a 

### boy born in 2011. DD moved to modify a 

### commissioner' s ruling affirming thejuvenile court's order terminating his parental rights asto BD. 

### Specifically, DD soughtto modifythe commissioner' s rulings that (1) he was not denied the right to counsel while unrepresented during atwo week period priorto the termination trial, 

### 2) his right to effective assistance ofcounsel was notviolated by thejuvenile court's denial of his motion for substitute counsel, and (3) his due process rights were not violated by the guardian ad litem' s ( GAL) conduct. On April 22, 2015, we granted DD' s motion to modify to the extent 

### necessary to refer the matter to a panel fora decision on the motion. After reviewing the motion and hearing arguments from the parties, we deny DD' s motion to modify with respect to the 

### commissioner' s ruling on the GAL' s conduct inthis case. We grant in part DD' s motion to 

### modifywith respectto the remaining two issues, which issues we address in this opinion,butwe

nonetheless affirm the juvenile court' s order terminating DD' s parental rights as to BD.No. 46504 - 3 -II FACTS I. DEPENDENCY PROCEEDINGS 

### On August 16, 2011, the Department of Social and Health,Services filed a dependency 

### petition as to BD, alleging BD was abused or neglected and had no parent, guardian, or custodian capable ofadequately caring for him, such that he was in circumstances which constituted a danger of substantial damage to his psychological or physical development. Thejuvenile court entered an agreed order ofdependency as to BD on December 14, 2011, which order required DD to participate in a domestic violence assessment and a psychological evaluation with a parenting component.' At the time, thejuvenile court allowed DD to have one supervised visit per week with BD. 

### During the dependency action,the Department offered DD domestic violence assessments, domestic violence treatment, a psychological evaluation, hands-on parenting 

### training, and counseling. The Department also offered DD parent-child visits with BD, although thejuvenile court restricted visitation at various times throughout the dependency. Between August 2011 and April 2012, visitation was offered twice per week. DDmissed 22 ofthe 50 scheduled visits and was late to several ofthe visits he attended. In March 2012, DD quit 

### attending visits altogether, claiming thatthe linoleum floors and one-way mirrors atthe Department's visitation site caused him anxiety. Although the Department offered DD a room without mirrors, he still refused to attend.

Almost ayear later, on December 11, 2012, DD filed a motion to vacate the agreed dependency order on the basis that he was under emotional distress at the time he agreed to the order. The juvenile court denied DD' s motion to vacate the dependency order, which order a commissioner ofthis court later affirmed.
2No. 46504 - 3 -II 

### Between May and August 2012, the parent-child visits occurred in the community,with supervision provided through a private agency. The private supervising agency eventually 

### refused to supervise any more visits, however, because DD was secretly audio - recording one of its employees. In addition, BD' s mother e-mailed the Department in August 2012, accusing DD
of making threats to " go on a murder spree if things did not go his way." Clerk' s Papers ( CP) at 194. Thereafter, thejuvenile court ordered the visits to return to either the Department or the Department of Youth for Christ. DD refused to attend visits at either location. 

### In late October 2012, the Department supervised visits at a public library. A private 

### agencytook overthe supervision ofthe visits until November2012,when DD reported he could no longer attend visits because ofa shoulder injury. Parent-child visits resumed atthe library 

### again in February 2013, butwere returned to the Department's office the following month based on a comment DD had made to the visitation supervisor regarding his friend, Josh Powell,who had murdered his children.2 DD again refused to attend visits at the Department. In October 2013, DD agreed to attend visits atthe Department' s Tumwater office. Visitation with BD occurred there until late November 2013, when the Department received an

e- mail from DD' s psychologist that he had concerns for BD if visits continued with DD. On December 12, 2013, thejuvenile court suspended parent-child visits between DD and BD, 

### finding that BD was at riskbased on the psychologist' s e-mail. Thejuvenile court's order stated, This shall be revisited upon further information from the father' s Greater Lakes Mental Health

counselor that the father is making progress and not a risk to his son." Ex. 39 at 2.

2 

### According to the supervisor, DD said that "he hoped that ifhis rights were terminated with BD] that he did not do a Josh Powell." 2 Report or Proceedings at 182.No. 46504 - 3 - II The Department social worker, Naz Qureshi, thereafter contacted DD' s counselor, who reported that DD had not been in counseling since December 19, 2013. At the next dependency 

### review hearing on January 23, 2014, thejuvenile court found that DD was not in compliance 

### with its court order and was not making progress on correcting his parenting deficiencies. It ordered for visits to remain suspended. As ofthe termination fact finding hearing in June 2014, visitation had not resumed. II. CLAY' S REPRESENTATION On June 24, 2013, the Department ofAssigned Counsel (DAC) filed a notice with the 

### juvenile court that Christopher Clay was being substituted as court appointed counsel for DD in 

### the dependency and termination proceedings. Claywas DD' s fifth attorney representing him in this matter. Over nine months later, on March 28, 2014, the Department filed a motion for an 

### order releasing DD' s drug/alcohol, medical, and mental healthtreatment records from various providers.3 

### Atthe April 17 hearing to address the Department' s records release motion, Clay informed thejuvenile court commissioner that DD was filing a bar complaint against him. Clay requested a continuance ofthe records release hearing to allow him time to file a formal motion to withdraw as counsel. Clay stated: 

### I talkedto Ms. Calhoun [the assistant attorney general] aboutthis. She would [like] to go forward. I think, on the records motion. But uh, I think everything, if we continue any of it; it all has to be continued for [DD]. 

### I was validly served. I mean



### 3 These providers included Greater Lakes Mental Health, Social Treatment Opportunity Program, Mark Whitehall, Ph.D., Loren W. McCollom, Ph.D., and Foster Care Resource Network. 11No. 46504 - 3 -II 

### that motion is timely fortoday. But uh, I can't honestly represent him in any legal capacity in today's hearing because ofwhat I've been told this morning. Suppl. Report of Proceedings (RP) (April 17, 2014) at 4. Thejuvenile court commissioner then heard from DD, who stated that he had received 

### ineffective representation by Clay. Thejuvenile court commissioner asked DD why he thought 

### Clay was ineffective, to which DD responded that Clay had a conflict ofinterestbecause he ( 1) had not advocated for visitation or a process to get visitation resumed after the last hearing, (2) 

### failed to objectto evidence presented atthe hearing, and (3) was inadequately prepared for certain motions. Thejuvenile court commissioner then stated that he was going to release Clay from representation, not because DD had established a conflict of interest, but because DD had 

### lost confidence in Clay. Thejuvenile court commissioner ordered the DAC to appoint new counsel for DD and ruled thatthe termination trial set for May 21, 2014 would proceed as

scheduled. Immediately after removing Clay as counsel and without appointing new counsel, the juvenile court commissioner addressed the Department' s records motion, asking if DD wished to be heard on the motion. DD stated that he did not know if he was prepared to represent himself 

### in the matter. Without responding to DD' s comment,thejuvenile court commissioner stated, 

### I' m going to orderthatthe records motion be granted. It may be subject to be revisited by
another attorney at a later point in time, as the matter comes on for trial." Suppl. RP (April 17, 2014) at 8. In its written ruling,thejuvenile court commissioner ordered that any copies of 

### records the Department received would be provided to DD' s new attorney. In addition,the juvenile court commissioner ordered that the confidentiality privilege was waived and theNo. 46504 - 3 -II 

### drug/alcohol, medical, and mental health treatment personnel would be allowed to testify atthe termination trial. On April 22, 2014, the DAC filed a motion to revise the juvenile court commissioner' s 

### ruling, arguing thatthe reasons given by DD atthe April 17 hearing were insufficientfor appointment ofa new attorney. Following a hearing before thejuvenile court on the motion the 

### following day,thejuvenile court concludedthatthe DAC had standing forpurposes ofits motion to revise, and it ordered the DAC to appoint counsel for DD " only as it relates to the motion to
revise." CP at 99. On April 24, 2014, the DAC appointed Andrew Makar as DD' s counsel for the motion to 

### revise thejuvenile court commissioner' s ruling. On May 1, 2014, the parties appeared before the 

### juvenile courtto addressthe DAC's motion to revise. Following argument,4thejuvenile court revised the commissioner' s ruling and reinstated Clay as DD' s attorney. It also denied DD' s 

### motion to stay the termination trial setfor May 21, 2014. DD thereafterfiled a motion for 

### discretionary reviewwith this court,which motionwe denied. The termination proceedings went forward on May 21 with Clay as counsel for DD. DD did not appear in court on May 21. 

### On that date, Clay informed thejuvenile courtthat DD 

### wished to have a new attorney appointed. Thejuvenile court declined to hearthe request because DD was not present. DD appeared the following day for a dependency review hearing, atwhich time DD again moved for substitute counsel, alleging a complete breakdown in 

### communication with Clay. Thejuvenile court commissioner declined to hearthe motion, stating


### 4The record from that proceeding is not before us.
0No. 46504 - 3 -II that the termination trial was scheduled to be heard by atrial judge who should rule on DD' s motion for substitute counsel. 

### Following the May 22 hearing, the Department filed a memorandum regarding the status ofDD' s counsel. The Department argued that DD had forfeited his right to an attorney through 

### extremely dilatory conduct. The Department asserted that DD had caused delay in the 

### proceedings by.filing multiple appeals with this Court, one ofwhich resulted in astay ofthe termination trial, and by threatening bar'complaints against Clay and making other complaints against his former attorneys. On June 4, 2014, the parties appeared before thejuvenile court and addressed the 

### Department's memorandum regarding the status ofDD' s counsel. Thejuvenile court stated that itthought the issue of DD' s representation had been putto restbythe previous order reinstating 

### Clay. But Clay stated thatthejuvenile court should readdress the issue, as anumber ofthings had happened since the order was entered. Clay stated that, although he had promised the 

### juvenile court atthe May 1 hearing, at which he was reappointed as counsel for DD, that he would.be prepared to proceed with the scheduled termination trial, there were issues that had 

### arisen since the May 1 hearing that caused him difficulty in preparing fortrial. Clay stated there 

### had been a change in his relationship with DO since he was reappointed, resulting in DD' s filing ofthe bar complaint, as well as a complete communication breakdown. Clay also stated thatthe juvenile court should hear from DD regarding his other complaints. 

## Thejuvenile courtthen heard from DD,who stated Clay had not argued previous issues to his liking or in atimely fashion, such as the motion to vacate the agreed dependency order. The juvenile court then stated:

7No. 46504 - 3 -II 

### Okay. Your disagreement with a lawyer about whether a motion is appropriate or not isn' t a basis for a new attorney. 

### He' s the one practicing law. 

### He' s the one who' s making appropriate decisions about how your case ought to proceed. You may disagree with your lawyer, and that's fine, but ultimately, your lawyer has an ethical obligation to present motions that he thinks are taken in good 

### faith, argue them in a way that are argued in good faith, and represent you in the best way he can. That' s his job. Whether you like the way it turns out or not is a completely different issue. 1 RP at 31. 

### DD continued to explain why he believed his prior attorneys had been ineffective, and he asked thejuvenile courtto assign him a new attorney so he could bring a motion for inadequate 

### counsel. The Department responded thatthe issue regarding the agreed dependency order had 

### already been decided bythis court. Clay again interjected, stating thatthere was "more to itthan that." 1 RP at 34. Specifically, Clay stated:

DD] is still upset overthe [motion to vacate] issue, butthere are subsequent 

### issues that I think are relevant today, and that is the complete breakdown in communication between myselfand my client. 

### We were having communication difficulties priorto my first removal from the case, but since I was put back on, [ DD]— and I have permission from him now 

### to discuss these, and these were the concerns I was afraid, ifwe brought up, might 

### prejudice him in some way, even though you are the trier of fact and can discriminate between what is and isn' t relevant. 

### But, he' s refused to help me prepare for trial, prepare witness lists. He's blocked my [ e- mails]. He' s only communicated with me through my assistant, because he doesn' t trust me. He wants paper trails. He' s refused to meet with me 

### privately. He' s asked witnesses to be present and still alleges via declaration that there' s a Bar complaint filed with the State Bar, so I am operating as his attorney under a Bar complaint, as well, apparently. 

### So, those issues are more importanttoday dealing with the issue ofwhether 

### or not we should stay orwhether or not I should be removed,what should happen. 1 RP at 34- 35. 

### Clay informed thejuvenile courtthat, during a recess, DD had asked him to make a request for him to speak with the judge without the Department present, as he had something toNo. 46504 - 3 - II 

### disclose regarding a particular providerthat might be helpful to thejuvenile court in making a decision. The juvenile court asked DD if he had anything else to add, and DD responded, " I think that covers it." RP at 36. The juvenile court then denied DD' s request for ex parte contact. 

### It also denied his motion to remove Clay from the case and any motion to continue, stating:

I]fthe Court ofAppeals takes some sort of action, they can take some sort 

### ofaction and stop us mid trial or combine whatever result happens with whatever appeal might be pending. I thinkthis case is ready for trial, and I think we should proceed. RP at 36-37. III. TERMINATION TRIAL 

### The termination trial commenced on June 4. Following the termination trial,thejuvenile court found that the Department had proved all ofthe elements fortermination under RCW 13. 34. 180( 1) and that termination of DD' s parental rights was in BD' s best interests. The 

### juvenile court entered an orderterminating DD' s parental rights as to BD. DD appealed the 

### termination orderto this Court, asserting thatthejuvenile courtviolated his rightto counsel by 

### ruling on the Department' s records release motion while he was unrepresented,thejuvenile court violated his rightto effective assistance ofcounsel by denying his motion for new counsel, and his and BD' s due process rights were violated bythe guardian ad litem's ( GAL) failure to conduct an independent investigation. IV. COMMISSIONER' S RULING 

### On February 5, 2015, acommissioner ofthis court entered a ruling affirming thejuvenile court' s orderterminating DD' s parental rights as to BD. The commissioner' s ruling concluded in relevant part that (1) thejuvenile court did not violate DD' s due process right to counsel by ruling on the Department' s records release motion while DD was unrepresented; (2) in the
ENo. 46504 - 3 -II 

### alternative, any error in ruling on the Department' s records release motion while DD was unrepresented was harmless beyond a reasonable doubt; and (3) thejuvenile court properly denied DD' s motion for substitute counsel.5 DD filed a motion to modify the commissioner' s ruling, which motion we granted on April 22, 2015 to the extent necessary to refer the matter to a three judge panel. Following our 

### review of DD' s motion to modify and after hearing arguments from the parties, we deny DD' s 

### motion to modifythe commissioner's ruling with respectto the issues regarding the GAL' S conduct. We grant in part DD' s motion to modify the commissioner' s ruling with respect to the 

### issues regarding (1) DD' s rightto counsel priorto thetermination trial and (2) thejuvenile court' s denial ofhis motion for substitute counsel, which issues we address in this opinion. We 

### affirm thejuvenile court' s orderterminating DD' s parental rights as to BD. ANALYSIS I. RIGHT TO COUNSEL DD first contends thatthejuvenile court violated his statutory and due process rightto counsel for a two week period priorto the termination trial. Specifically, DD contends that the 

### juvenile court violated his rightto counsel by releasing Clay from representation and 

### subsequently ruling on the Department's record release motion while DD remained unrepresented. We agree with DD thatthejuvenile court violated his statutory right to counsel 

### by ruling on the Department's motion while he was unrepresented by counsel, but we hold the violation harmless because thejuvenile court' s release ofrecords had no impact on the 

### 5 The commissioner's ruling also concluded that DD' s due process rights were notviolated by the GAL' s conduct inthe case. Because we deny DD' s motion to modify as itpertains to that portion ofthe commissioner' s ruling, we do not further address itin this opinion.
10No. 46504 - 3 -II termination proceedings. We need not reach the issue ofwhether DD' s denial of counsel at the 

### pretrial motion hearing amounted to adue process violation because, even assuming that a due process violation had occurred, the Department has shown such violation to be harmless beyond a reasonable doubt. A. Statutory Right to Counsel in Parental Dependency/Termination Proceedings

RCW 13. 34.090 provides in relevant part: 

### 1) Anyparty has a right to be represented by an attorney in allproceedings under this chapter.... 

### 2) Atallstages ofaproceeding in which a child is alleged to be dependent, the child' s parent, guardian, or legal custodian has the right to be represented by 

### counsel, and if indigent, 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 such person (a) has appeared in the proceeding or requested 

### the court to appoint counsel and (b) is financially unable to obtain counsel because ofindigency. Emphasis added). 

### When interpreting a statute, our primary goal is to give effect to the legislature' s intent. In re Welfare ofL.N.B.-L., 157 Wn.App. 215, 238, 237 P.3d 944 (2010). And "[

### w]here the statute' s meaning is plain and unambiguous, we derive legislative intent from the statute' s plain language." In re L.N.B.-L., 

### 157 Wn.App. at 238. Here, RCW 13.34.090' s 

### plain language unambiguously entitled DD to representation by counsel atthe proceeding addressing the Department's records release motion. The Department does not argue tothe contrary. 

### The Department, however, asserts that (1) by requesting the appointment of new counsel 

### atthe hearing to address the Department's records release motion, DD invited thejuvenile court' s error in ruling on the motion while DD was unrepresented, and (2) any error in ruling on the records release motion while DD was unrepresented was harmless beyond a reasonable

11No. 46504 - 3 -II doubt. We reject the Department' s assertion that DD invited the juvenile court' s error, but we agree with the Department that the error was harmless beyond a reasonable doubt. B. Invited Error The invited error doctrine prevents a party from obtaining reliefon appeal from an error 

### the party caused attrial. Grange Ins.Ass' n v. Roberts, 179 Wn.App. 739, 774, 320 P.3d 77 2013), review.denied, 180 Wn.2d 1026 (2014). The invited error doctrine applies when a party takes affirmative and voluntary action that induces the trial court to take an action that party later challenges on appeal." 

### Grange Ins.Ass' n, 179 Wn.App. at 774. Here, DD' s action in 

### requesting the appointment ofnew counsel did not induce thejuvenile courtto rule on the Department' s motion while DD awaited the appointment ofhis new counsel. Moreover, DD 

### clearly objectedto thejuvenile courtruling onthe Department's motion while DD was unrepresented: Commissioner]:... Do you wish to be heard on the records motion for the

state to have those records provided to the state?

DD]: I um, I can't, I don't know if I am prepared to um, represent myself in that matter.

Commissioner]: 

### I'm going to order thatthe records motion be granted. It 

### may be subject to be revisited by another attorney at a later point in time, as the matter comes on for trial.

DD]: 

### May I askthat it be stayed pending assignment ofcounsel? Commissioner]: No. You may ask and I will deny it. RP (April 17, 2014) at 7- 8. We hold that DD did not invite the error he complains of on appeal.

12No. 46504 - 3 -II C. Harmless Error

1. Inapplicability of Structural Error 

### Before addressing harmless error,we considerwhether such an analysis is appropriate here. DD argues that aviolation ofthe right to.counsel during a child termination proceeding constitutes structural error not subject to harmless error analysis. We disagree.

A structural error is an error "` affecting the framework within which the trial proceeds"'

and is " not subject to harmless error review." State v. Frost, 160 Wn.2d 765, 779, 161 P.3d 361 2007) (

### quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 1991)). " In contrast, trial errors— those affecting ` the trial process itself —

### may be reviewed for harmless error." Frost, 160 Wn.2d at 779 (quoting Fulminante, 499 U.S. at 310). In the criminal context, where the right to counsel derives from the Sixth Amendment ofthe United States Constitution and article I, section 22 ofthe Washington Constitution, the denial ofthe right to 

### counsel constitutes structural error not subjectto harmless erroranalysis.6 See, e.g., United States v. Gonzalez -

Lopez, 548 U.S. 140, 148-49, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006) 

### discussing structural defects not subjectto harmless error analysis including the denial of

counsel in criminal proceedings); State v. Watt, 160 Wn.2d 626, 632-33, 160 P.3d 640 (2007) same); see also State v. Harell, 80 Wn.App. 802, 805, 911 P. 2d .1034 ( 1996) (" An outright denial ofthe right to counsel is presumed prejudicial and warrants reversal without a harmless

6 Article I, section 22 ofour State Constitution provides the same protection ofthe right to counsel in criminal proceedings as the Sixth Amendment. State v. Medlock, 86 Wn.App. 89, 98- 99, 935 P.2d 693 ( 1997).

13No. 46504 - 3 -II

error analysis."). DD' s right to counsel in the termination proceedings, however, did not derive from the Sixth Amendment. Several Washington cases have held or recognized that structural error does not applyto civil proceedings. For example, in In re Detention ofD.F.F.,our Supreme Court addressed the 

### appropriate remedy for aviolation ofthe public trial right in a civil commitment proceeding under article I, section 10 of our State Constitution. 172 Wn.2d 37, 256 P.3d 357 (2011). Although fourjustices in the D.F.F.lead plurality opinion determined that a violation ofthe public trial right under article I, section 10 constituted structural error requiring reversal without 

### a showing ofprejudice, the twojustices in the concurring opinion agreed with thethree dissenting justices that "` structural error' analysis does not apply in the civil context." 172 Wn.2d at 48 (J. M. Johnson, J., concurring). 

### Thus, a majority in D.F.F.determined that structural error analysis is inapplicable in the civil context. 

### Similarly, relying on D.F.F.,Division One ofthis courthas held that structural error does not applyto apublic trial violation in dependency and termination proceedings. In re Adoption ofM. S.M.- P., 181 Wn.App. 301, 313- 14, 325 P.3d 392 (2014) (termination proceeding), review granted, 182 Wn.2d 1001 ( 2015); 

### In re Dependency ofJ. A.F.,168 Wn.App. 653, 663, 278 P.3d 673 ( 2012) (dependency proceeding). 

### And, in a case predating D.F.F.,Division One ofthis court applied constitutional harmless error analysis to an alleged due process violation in a 

### dependency proceeding. In re Dependency ofA.W.,53 Wn.App. 22, 27, 765 P.2d 307 ( 1988). Because no Washington case has applied structural error analysis in the civil context, we decline to do so here, and we hold that aviolation ofa right to counsel in pretrial termination proceedings does not require automatic reversal.

14No. 46504 - 3 -II
2. Harmless Error Analysis We turn to whether DD' s deprivation of counsel constituted harmless error. For purposes ofour harmless error analysis, we assume without deciding thatthejuvenile court' s error in 

### ruling on the Department' s motion while DD was unrepresented violated DD' s due process right to counsel and,thus, applythe more stringent constitutional harmless errortest.

We presume that constitutional errors are prejudicial and, to overcome this presumption, the State must prove beyond a reasonable doubt that the result ofthe proceedings would have been the same absent the error. Watt, 160 Wn.2d at 635. The Department argues that the 

### juvenile court's error in ruling on its records release motion while DD was unrepresented was harmless beyond a reasonable doubt because ( 1) the Department already possessed several ofthe documents disclosed to it as.a result ofthejuvenile court' s order and (2) it was entitled to receive 

### the remaining documents thatwere disclosed pursuantto thejuvenile court' s order. The Department thus asserts that thejuvenile court's ruling on its records release motion while DD was unrepresented had no impact on the termination proceedings. We agree.

Here, thejuvenile court' s records release order: ( 1) released to the Department mental 

### health records pertaining to DD thatwere possessed byfive providers: Dr. Mark Whitehill, Dr. Loren McCollum, Social Treatment Opportunity Program, Foster Care Resource Network, and Greater Lakes Mental Health; (

### 2) waived the confidentiality privilege for purposes ofthe termination trial; and (3) allowed treatment personnel to testify atthe termination trial. As the 

### record demonstrates, the Department already possessed several ofthe requested documents, 

### including reports from Dr.Whitehill, Dr. McCollum, and the Social Treatment Opportunity Program and, thus, the portion ofthejuvenile court order releasing those documents had no

15No. 46504 - 3 -II 

### impact on the termination proceedings and was clearly harmless beyond a reasonable doubt. The release ofdocuments from Foster Care Resource Networkwas similarly harmless beyond a reasonable doubt because itwas the provider contracted by the Department to supervise DD' s visitation with BD, and it did not owe DD a duty ofconfidentiality. Finally, prior to the records release order, DD signed a consent form allowing Greater Lakes Mental Health to release 

### information to.the Department and, thus, the order releasing records from Greater Lakes Mental Health was also harmless beyond a reasonable doubt. DD contends thatthe portion ofthe order waiving confidentiality and allowing treatment 

### providers to testify at the termination trial was not harmless beyond a reasonable doubt because the treatment providers testified at his termination trial. But DD provides no authority or argument that his communications with the treatment providers were privileged and, therefore, not admissible at his termination trial. Moreover, DD' s December 14, 2011, agreed dependency order demonstrates that his communications with treatment providers were not privileged because the order required him to " sign a release of information for all services providers to
provide information to the social worker and guardian ad litem." Ex. 5 at 6 ( emphasis added). 

### 7 Afterwe heard arguments in this case, DD submitted a statement ofadditional authority citing RCW 5. 60. 060(9). RCW 5. 60.060(9) provides in relevant part: A mental health counselor, independent clinical social worker, or marriage and family therapist . . 

### may not disclose, or be compelled to testify about, any information acquired from persons consulting the individual in a professional 

### capacity when the information was necessary to enable the individual to render professional services to those persons except:

a) With the written authorization of that person.... Because DD' s agreed dependency order required him to authorize the release of information from all service providers, RCW 5. 60.060(9)( a)' s exception to the mental health

16No. 46504 - 3 -II 

### Because the Department' s requested records were either already in their possession or were subject to disclosure, and because DD' s communications with treatment providers were not privileged, we are convinced beyond a reasonable doubt thatthejuvenile court's error in ruling on the Department' s motion to release records and to allow treatment providers to testify at the 

### termination hearing while DD was unrepresented was harmless. Because the error is harmless beyond a reasonable doubt, even assuming that DD' s due process right to counsel was violated, reversal is not required. H. MOTION TO SUBSTITUTE COUNSEL 

### Next, DD contends that the trial court erred by denying his May 22, 2014, motion forthe
appointment of new counsel.$ We disagree and, thus, affirm thejuvenile court order terminating DD' s parental rights as to BD. When an attorney-client relationship completely collapses, the refusal to substitute new counsel violates the defendant' s right to effective assistance. State v. Cross, 156 Wn.2d 580, 606, 132 P. 3d 80 ( 2006). A defendant who is dissatisfied with appointed counsel must show good cause to warrant substitution ofcounsel, such as conflict ofinterest, an irreconcilable conflict, or a complete breakdown in communication. State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 ( 1997). " 

### Generally, adefendant's loss ofconfidence ortrust in his counsel is not
sufficient reason to appoint new counsel." State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 professional -

patient privilege applies. Additionally,to the extent DD relies on the physician - patient privilege under RCW 5. 60. 060(4), such privilege does not apply in parental termination 

### proceedings. In re Welfare ofDodge, 29 Wn. App. 486, 491- 94, 628 P.2d 1343 ( 1981). 

### 8 DD did not appeal from thejuvenile court's May 1 decision to reinstate Clay as DD' s counsel. We thus assume thatthejuvenile court properly determined that DD' s relationship with Clay as ofthat date did not warrant the substitution of counsel.
17No. 46504 - 3 -II 2004). See also Cross, 156 Wn.2d at 606 ("[ T]here is a difference between a complete collapse
and mere lack of accord."); State v. Sinclair, 46 Wn. App. 433, 436, 730 P.2d 742 ( 1986) defendant' s " general discomfort" with attorney' s representation did not constitute a valid reason to substitute counsel). 

### In determining whether thejuvenile court properly denied DD' s motion to substitute
counsel, we must consider: ( 1) the extent - of the conflict, (

### 2) the adequacy ofthejuvenile court' s 

### inquiry, and (3) thetimeliness ofthe motion. In re Personal Restraint ofStenson, 142 Wn.2d 710, 723- 24, 16 P. 3d 1 ( 2001). We review the juvenile court' s refusal to appoint new counsel for an abuse ofdiscretion. Cross, 156 Wn.2d at 607. A court abuses its discretion when its decision adopts a view that no reasonable person would take or is based on untenable grounds or reasons. State v. Sisouvanh, 175 Wn:2d 607, 623, 290 P.3d 942 (2012) A. Extent ofConflict 

### In examining the extent ofthe conflict between counsel and client,we consider "the extent and nature ofthe breakdown in the relationship and its effect on the representation actually presented." State v. Schaller, 143 Wn.App. 258, 270, 177 P.3d 1139 (2007). " Because the purpose of providing assistance of counsel is to.ensure ... a fair trial, the appropriate inquiry 

### necessarily must focus on the adversarial process, notonly onthe [client' s] relationship with his lawyer.. . . " Shaller, 143 Wn. App. at 270. 

### At the June 4 hearing addressing Clay's representation, DD first argued in support ofhis motion for substitute counsel that Clay, like several ofhis other previously assigned attorneys, 

### had failed to argue previous issues in atimely fashion. Specifically, DD.stated to thejuvenile

court that "[ 

### e] ach time I've had a new attorney, I've had to waitforthem all to prepare and have

3No. 46504 - 3 -II issues get heard before the Court. I've had to give them an amount oftime before even trying to file any complaints or a follow-up with supervisors." 1 RP at 26. DD' s general dissatisfaction with the amount oftime counsel needed to prepare to represent him in the termination proceedings is not a valid basis to warrant the appointment ofsubstitute counsel, particularly 

### since DD failed to show any prejudice resulting from counsel' s required preparation time. Varga, 151 Wn.2d at 200. DD also raised several issues regarding the quality of representation from his previous attorneys, particularly with regard to a motion to vacate the agreed order of 

### dependency, butthese issues were not relevanttothe qualityofClay'srepresentation orthe extent ofthe conflict between DD and Clay. 

### Additionally, atthe June 4 hearing Clay told thejuvenile courtthat there was a complete 

### communication breakdown because DD has refused to help him prepare fortrial and has refused to communicate directly with him. But "[ i]t is well settled that a defendant is not entitled to demand a reassignment of counsel on the basis ofa breakdown in communications where he simply refuses to cooperate with his attorney[.]" Schaller, 143 Wn.App. at 271. At best, Clay' s 

### assertion atthe June 4 hearing showed thatthe alleged communication breakdown was based 

### solely on DD' s refusal to cooperate. And, although Clay asserted that DD had refused to help him prepare fortrial, at no point did Clay state that he was unprepared for trial due to DD' s lack
of cooperation. 

### Finally,Clay asserted a conflict ofinterestbased on DD's filing ofabar complaint against him. But to establish reversible error based upon an allegation ofa conflict of interest, 

### DD must "demonstrate that counsel actively represented conflicting interests and that an actual

conflict of interest adversely affected his lawyer' s performance." State v. Martinez, 53 Wn.App.

19No. 46504 - 3 -II 709, 715- 16, 770 P. 2d 646. Although DD' s bar complaint is not in the record before us, the 

### record suggests that the complaint centered on Clay' s filing ofthe motion to vacate the agreed dependency order and other trial tactics. But "[ c] ase law does not support the application ofthe
concept of a conflict of interest to conflicts between an attorney and client over trial strategy." In 

### re Stenson, 142 Wn.2d at 722. Accordingly, DD did not demonstrate atthe June 4 hearing that he and Clay had a complete communication breakdown or a conflict ofinterestwarranting the
substitution of counsel. B. Trial Court Inquiry 

### A] trial court conducts an adequate inquiry by allowing the defendant and counsel to

express their concerns fully." Schaller, 143 Wn.App. at 271. Here, the record clearly 

### demonstrates thatthejuvenile court asked DD why he felt substitute counsel was necessary and 

### attempted to clarify DD' s reasons on multiple occasions. DD expressed that he needed new 

### counsel to help him bring an ineffective assistance claim against Clay, as he was unhappy about the way Clay handled certain aspects ofthe case. Thejuvenile court also heard from Clay 

### regarding DD's concerns. Following Clay's description ofthe issue, DD confirmed that Clay had stated his concerns fairly. Finally,thejuvenile court heard Clay's description ofthe communication breakdown and asked DD ifhe wanted to add anything, to which DD responded, I think that covers it." 1 RP at 36. Based on the record, we conclude that thejuvenile court conducted an adequate inquiry. C. Timeliness ofMotion 

### DD argues that his motion for substitute counsel was timely because he initially asked for 

### anew attorney on April 17. He asserts that it was necessary to renew his request on June 4 - the

20No. 46504 - 3 -II first 

### day ofthe termination trial—because thejuvenile court reinstated Clay on May 1 and he
missed the 

### hearing on May 21. Regardless ofwhether DD' s motion for substitute counsel was 

### timely,thejuvenile court here did not abuse its discretion in denying DD' s motion based on the 

### above two factors. Accordingly,we affirm thejuvenile court's decision to deny DD' s motion for
substitute counsel. Because thejuvenile court's error in ruling on the Department' s records release motion while DD was unrepresented was harmless beyond a reasonable doubt, and because thejuvenile 

### court did not abuse its discretion by denying DD' s motion for substitute counsel, we affirm the orderterminating DD' s parental rights as to BD. 

### A majority ofthe panel having determinedthatthis opinionwill notbe printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. 

# V -

# al Worswick, P.J. We concur:
Maxa, J:

Lee, J.

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