In Re Dependency Of G.l., 11/28/00, Dshs, Resp v. Perry Lee And Crista Johnson, Apps, 74065-2

Background

Griffin Lee, born 2000, is profoundly disabled (seizures, mitochondrial disorder, cortical visual impairment, nonverbal, nonambulatory) and was cared for by parents Perry Lee and Crista Johnson at home for over a decade without consistent state-funded in-home services.
Physicians placed Griffin on a ketogenic diet; he repeatedly suffered chronic vomiting and failure to thrive; hospitals recommended a permanent gastrostomy (g‑tube) at times but parents resisted due to quality‑of‑life and tube‑removal concerns. Two SCH ethics consultations in 2011 and 2013 concluded the parents’ refusal was ethically defensible given circumstances; a third ethics consult in June 2014 followed his near‑death hospitalization.
In June 2014 Griffin was hospitalized severely emaciated; hospital staff concluded he was starved, nasal tube feeding was used without parental consent, and CPS filed dependency petitions. Griffin was removed from parents’ custody; he later received a court‑ordered g‑tube and gained weight but suffered injuries while in state care.
At fact‑finding the trial court found parental abuse/neglect and entered dependency orders; the court excluded a late‑disclosed defense psychologist (Dr. Marsha Hedrick) from the fact‑finding phase but allowed her to testify at disposition; the court denied parents’ request for independent counsel for Griffin.
On appeal, the Court of Appeals reversed and remanded for new fact‑finding and disposition hearings because the trial court erred by excluding Dr. Hedrick without applying the required Burnet factors and that error was not harmless. The appellate court also directed appointment of independent counsel for Griffin on remand and discussed evidentiary scope (including prior ethics consultations and remedial services issues).

Issues

Issue	Parents' Argument	Department's Argument	Held
Exclusion of late‑disclosed expert (Dr. Hedrick)	Exclusion improper; non‑willful late disclosure; admission could be limited	Prejudice from late witness disclosure; unfair to Department	Reversed: trial court failed to apply Burnet factors; exclusion not harmless because testimony bore on fact‑finding
Sufficiency of evidence for abuse/neglect (failure to thrive; refusal of g‑tube)	Medical causes could explain malnutrition; ethics consults supported parents; hindsight cannot be used to find neglect	Parents’ refusal of g‑tube and lack of monitoring led to clear and present danger to Griffin	Remanded: appellate court found trial court improperly relied on hindsight and did not account for ethics opinions; scope of evidence to be reconsidered on remand
Reasonable efforts / remedial services before removal	Department failed to provide in‑home remedial services or pursue funding; parents requested services	Department claimed parents uncooperative and that hospitalized care obviated in‑home services	Questionable on record; remand required so findings about reasonable efforts and services can be reassessed
Appointment of independent counsel for Griffin	Parents sought independent counsel to pursue DDA/Medicaid appeals and protect Griffin’s interests	Department argued court lacked authority to appoint counsel to litigate benefits separately	Court directed appointment on remand under Mathews balancing: child’s strong interests and risk of erroneous deprivation warranted counsel

Key Cases Cited

Jones v. City of Seattle, 179 Wn.2d 322 (procedural‑sanction analysis and harmless‑error principles)
Burnet v. Spokane Ambulance, 131 Wn.2d 484 (factors required before excluding late‑disclosed witnesses)
Keck v. Collins, 184 Wn.2d 358 (procedural sanctions precedent applying Burnet analysis)
Teter v. Deck, 174 Wn.2d 207 (same rule on pretrial witness disclosures)
Blair v. TA‑Seattle E., No. 176, 171 Wn.2d 342 (harm from substituting appellate fact‑finding for trial findings)
In re Dependency of E.L.F., 117 Wn. App. 241 (failure‑to‑thrive may support neglect where home environment explains condition)
Brown v. Dep’t of Soc. & Health Servs., 190 Wn. App. 572 (limits on using hindsight and rejecting a "reasonable person" negligence standard in dependency findings)
In re Dependency of M.S.R., 174 Wn.2d 1 (Mathews balancing for appointment of counsel in dependency/termination context)
Mathews v. Eldridge, 424 U.S. 319 (due process balancing test)
Lassiter v. Dep’t of Soc. Servs. of Durham County, 452 U.S. 18 (child’s interest in counsel and due process considerations)