In re Dependency of E.H.
427 P.3d 587
Wash.2018Background
- Two consolidated dependency cases: E.H. (mother R.R.) and S.K.-P.; both challenged RCW 13.34.100(7)(a)’s discretionary appointment of counsel for children and sought a categorical right to counsel.
- E.H.: six-year-old placed in foster care; CASA (acting as GAL) reported E.H. wanted reunification while CASA recommended termination; mother moved to appoint counsel for E.H.; trial court denied; denial upheld on review and review granted by the Supreme Court.
- S.K.-P.: seven-year-old placed with grandmother; GAL reported placement safe; child moved for counsel (joined by mother); trial court denied without prejudice; dependency later dismissed but appellate review addressed the broader legal issue.
- Legislature provides discretionary appointment: anyone (child, parent, caregiver, DSHS) may move to appoint counsel; court may appoint sua sponte (RCW 13.34.100(7)(a)).
- Parties jointly moved to seal juvenile court and appellate records and to use initials; the court addressed sealing in light of GR 15(g) and prior precedent (J.B.S.).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RCW 13.34.100(7)(a)’s discretionary appointment mechanism satisfies Washington Constitution art. I, §3 (due process) | RCW 13.34.100(7)(a) is insufficient; state constitution requires categorical appointment of counsel for all children in dependency proceedings | Discretionary, case-by-case appointment guided by Mathews provides adequate process; state clause is coextensive with federal due process here | Statute is adequate; Mathews balancing (case-by-case) governs appointment; no presumption against appointment and trial courts must record analysis early |
| Whether the trial court abused discretion in denying counsel for E.H. | R.R.: denial violated due process because E.H. voiced reunification preference contrary to CASA and faced risk of wrongful deprivation; counsel needed | State/trial court: at time of motion issues were limited (sibling visitation), CASA reported E.H.’s preference, no imminent placement or termination decision; counsel unnecessary then | Denial affirmed: on the record at that time Mathews factors did not require appointment; court noted counsel should be reconsidered if termination pursued |
| Whether juvenile dependency records remain sealed on appeal | Parties: GR 15(g)/statute require sealing and use of initials; appellate records should be sealed | Opponents (concurring/dissenting views): article I, §10 (open courts) limits sealing; J.B.S. and constitutional concerns | Joint motion to seal granted; GR 15(g) and RCW 13.50.100 keep nondelinquency juvenile records sealed on appeal; J.B.S. effectively abrogated to this extent |
Key Cases Cited
- State v. Gunwall, 106 Wash.2d 54 (Wash. 1986) (factors for when to interpret state constitutional provisions independently)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (three‑part procedural due process balancing test)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (advising case‑by‑case appointment of counsel in revocation‑type proceedings)
- Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (U.S. 1981) (Mathews applied to appointed counsel in parental termination proceedings)
- In re Dependency of M.S.R., 174 Wash.2d 1 (Wash. 2012) (upholding discretionary counsel at termination stage under Mathews)
- State v. S.J.C., 183 Wash.2d 408 (Wash. 2015) (addressing whether article I, §10 applies to juvenile records and related experience‑and‑logic analysis)
- In re Dependency of J.B.S., 122 Wash.2d 131 (Wash. 1993) (prior holding that juvenile confidentiality did not automatically extend on appeal; superseded in part by GR 15(g))