In the Matter of the Dependency of: J.D.H. & L.L.R.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Dependency of
JDH,
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In the Matter of the Dependency of
LLR,
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No. 38614-7-III
Consolidated with
No. 38615-5-III
UNPUBLISHED OPINION
STAAB, J. — Following a fact-finding hearing conducted via Zoom in which KH
was represented by an attorney and a guardian ad litem (GAL), the trial court found JDH
and LLR were dependent. KH appeals, arguing for the first time that she was deprived of
her right to counsel because her attorney could not communicate effectively with the
GAL during the hearing. To support her argument, she points to the lack of affirmative
evidence in the record that the two were communicating. From this, she reasons that the
absence of evidence equates with the absence of communication. We decline to review
this newly-raised issue because the inadequate record prevents KH from demonstrating
actual prejudice sufficient to meet her burden of demonstrating a manifest error of
constitutional magnitude.
FILED
JANUARY 10, 2023
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 38614-7-III (Consolidated with 38615-5-III)
In re Dependency of J.D.H and L.L.R.
2
BACKGROUND
Because KH does not assign error to any of the trial court’s findings of fact, they
are considered verities on appeal.
KH was the legal custodian of JDH and the biological mother of LLR. Following
an incident in KH’s home during which she experienced delusions and was arrested for
fourth degree assault, the State removed JDH and LLR from KH’s care and filed
dependency petitions for both of them.
The trial court subsequently appointed a GAL for KH pursuant to RCW 4.08.060,
which requires trial courts to appoint a GAL when an incapacitated person is a defendant
and certain other requirements are met. The trial court ordered that the GAL’s duty was
“to represent the best interest of [KH] and to stand in the role of [KH].” Clerk’s Papers
(CP) at 341.
KH contested both dependency cases, and the trial court held a fact-finding
hearing. Due to the COVID-19 pandemic, the trial court held the hearing remotely via
Zoom. In its order for a remote hearing, the trial court stated:
If an attorney needs to speak privately with a client, inform the Court and
the Court will create a breakout room to allow private communications.
Note that the timing of when a breakout room can be used, and for how
long, is at the discretion of the Court.
CP at 349.

No. 38614-7-III (Consolidated with 38615-5-III)
In re Dependency of J.D.H and L.L.R.
3
At the outset of the hearing, KH’s attorney moved to continue the trial, indicating
that KH did not have access to a computer, could not join the hearing on Zoom, and was
instead appearing in person. The attorney expressed concern that this would hinder her
ability to communicate with KH in real-time during the hearing. The attorney noted that
she had previously understood that KH had planned to appear via Zoom and accordingly
planned to do the same. However, the attorney had learned just prior to the hearing that
KH would not be able to appear via Zoom and stated that she believed that, to facilitate
better communication between her, KH, and the GAL, she should appear in person if KH
was in person and via Zoom if KH was via Zoom.
After a discussion between the parties and the trial court, the court decided to
place KH in a private jury room and provide her with a laptop so that she could
participate via Zoom and better communicate with her attorney and the GAL. The
hearing then proceeded as planned.
During the second day of the hearing, KH’s attorney made the following statement
to the trial court regarding her ability to communicate with KH:
[KH’s attorney]: Your Honor, I just want to lay a brief record regarding
communication just because these Zoom hearings are a little bit weird and
tricky. So, I just wanted to make a record that [KH] has had access to me
via text message during the trial. She and I were able to communicate that
way during trial and she knows that she has that access to me today as well.
And likely when the State rests I will be asking to, go into a breakout room
with her—

No. 38614-7-III (Consolidated with 38615-5-III)
In re Dependency of J.D.H and L.L.R.
4
THE COURT: Sure.
[KH’s attorney]: but I just wanted it noted on the record that she has
been able to have access to me when she’s needed during trial.
Report of Proceedings (RP) (Sept. 21, 2021) at 5-6.
Following the fact-finding hearing, the trial court found that JDH and LLR were
dependent. KH appeals.
ANALYSIS
KH argues that the trial court failed to ensure that her GAL was able to
contemporaneously and continuously communicate with her attorney during the hearing.
She claims that she was deprived of her right to counsel because nothing in the record
shows that there was an opportunity for the GAL to communicate with her attorney in
real-time during the hearing. We disagree.
KH failed to raise any objection regarding this issue before the trial court.
Typically, this court will not address issues raised for the first time on appeal, including
the due process right to counsel at a dependency hearing. In re Dependency of M.S.R.,
174 Wn.2d 1, 11, 271 P.3d 234 (2012); RAP 2.5(a). However, this court may address
issues where an appellant demonstrates a “manifest error affecting a constitutional right.”
RAP 2.5(a).

No. 38614-7-III (Consolidated with 38615-5-III)
In re Dependency of J.D.H and L.L.R.
5
Although KH’s argument concerns due process, which is a constitutional issue,
she fails to argue or show that there was a manifest error. A manifest error requires a
showing of actual prejudice. Actual prejudice requires a “‘plausible showing by the
[appellant] that the asserted error had practical and identifiable consequences in the trial
of the case.’” State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007) (quoting State
v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). Actual prejudice asks
“whether the error is so obvious on the record that the error warrants appellate review.”
State v. O’Hara, 167 Wn.2d 91, 99-100, 217 P.3d 756 (2009). In other words, for KH to
show actual prejudice, the record must be sufficient to determine the merits of the
purported error. Id. at 99.
KH argues that because nothing in the record shows that her attorney had an
opportunity to communicate with her GAL in real-time during the hearing and a GAL
“stands in the shoes of the client,” the GAL’s inability to communicate with her attorney
deprived KH of her right to counsel. In re Det. of Hatfield, 191 Wn. App. 378, 399, 362
P.3d 997 (2015). Rather than supporting her position, the inadequate record undermines
KH’s argument. KH is unable to show actual prejudice sufficient to demonstrate a
manifest error. Because she cannot demonstrate manifest error, we decline to consider
the arguments she raises for the first time on appeal.

No. 38614-7-III (Consolidated with 38615-5-III)
In re Dependency of J.D.H and L.L.R.
6
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
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Staab, J.
WE CONCUR:
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Fearing, J.
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Lawrence-Berrey, A.C.J.