In the Matter of the Dependency of E.H., a minor child. In the Matter of the Dependency of S.K.-P., a minor child.
No. 94798-8 (consolidated with No. 94970-1)
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
OCT 04 2018
En Banc
The legislature gave children a discretionary right to counsel in dependency proceedings in
FACTS AND PROCEDURAL POSTURE
This matter involves two unrelated juveniles, E.H. and S.K.-P., in unrelated dependency proceedings. R.R., E.H.‘s mother, and S.K.-P. both challenge the validity of
In re Dependency of E.H.
In 2013, E.H.‘s mother, R.R., was sent to prison in California with a scheduled release date in July 2019. She arranged for a family friend to live in the family home and care for her six children while she was incarcerated. Six months after assuming responsibility for the children, the friend sent three of the children (not including E.H.) to live with another friend, who physically and emotionally abused the children in his care. R.R. was not aware of this abuse as it was occurring.
E.H. has a court-appointed special advocate (CASA) who fulfills the role of a guardian ad litem (GAL) by representing and advocating for E.H.‘s best interests throughout the dependency proceedings and informing the court of E.H.‘s stated interests. At a February 2016 permanency planning hearing, the CASA supported a primary plan of terminating R.R.‘s parental rights so that E.H. could be adopted. In May 2016, the CASA added guardianship as a secondary possibility based on E.H.‘s stated interest in family reunification, noting that E.H.‘s current foster placement was a good environment and that the foster parents were willing to serve as long-term guardians. However, the CASA continued to advocate for termination of R.R.‘s parental rights based on the CASA‘s assessment of E.H.‘s best interests.
On August 17, 2016, R.R. filed a motion for appointment of counsel on E.H.‘s behalf. A superior court commissioner denied the motion and the superior court denied the mother‘s motion to revise in a memorandum opinion. The court found no basis for construing the state due process protection more broadly than its federal counterpart after analyzing the Gunwall factors and therefore considered only whether the Fourteenth Amendment to the United States Constitution required appointment of counsel. State v. Gunwall, 106 Wn.2d 54, 62, 720 P.2d 808 (1986).
Beginning from the premise that there is no federal due process right to appointed counsel for all children in dependency cases, the court analyzed the Mathews factors as applied to E.H.‘s case individually. See Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The court recognized the importance of the interests at stake, but also noted E.H.‘s CASA was actively involved in E.H.‘s case and had been forthright in conveying E.H.‘s stated preferences to the court, even though the CASA believed those preferences were contrary to E.H.‘s best interests. Critically, although E.H.‘s CASA believed that termination of R.R.‘s parental rights was in E.H.‘s best interest and E.H. continued to desire reunification as a permanency plan, at the time the motion for counsel was made termination was not an issue. The issues being addressed at that 90 day review hearing related to visitation between E.H. and E.H.‘s siblings. E.H., E.H.‘s CASA, and all persons present supported visitation. The court thus saw “no benefit to [E.H.] in appointing counsel at this juncture” and denied the motion to revise, noting that if the Department moved to terminate and E.H. remained opposed to that position, the issue of appointment of counsel would be revisited. Pet‘r‘s Suppl. Br. (E.H.), J.A. at 10.
R.R. sought discretionary review. A commissioner at Division One of the Court of Appeals denied review, and the Court of Appeals denied the mother‘s motion to modify. This court granted the mother‘s motion for discretionary review and consolidated this case with In re Dependency of S.K.-P.
In re Dependency of S.K.-P.
S.K.-P. and two half-siblings were removed from their home after allegations of abuse. S.K.-P. was placed in S.K.-P.‘s grandmother‘s home. Based on its most recent investigation, the Department filed a dependency petition in November 2014, when S.K.-P. was seven years old, and the court appointed S.K.-P. a GAL. In January 2015, S.K.-P.‘s mother entered an agreed order of dependency, continuing S.K.-P.‘s placement with the grandmother. In February 2015, S.K.-P.‘s GAL filed a report with the court, stating that S.K.-P. reported no concerns with the placement and that S.K.-P. has everything S.K.-P. needs and feels safe in the home. In July 2015, the GAL reported that
Five days later, through an attorney who appeared for the limited purpose of the motion only, S.K.-P. moved for appointed counsel. With the motion, S.K.-P. submitted a declaration expressing a desire for maternal placement but challenging visits by the father. The father had no relationship with S.K.-P. prior to the dependency, and according to the grandmother, he was “known for illegal activity in the community and for perpetrating domestic abuse against [S.K.-P.‘s] mother.” Clerk‘s Papers (S.K.-P.) at 29. S.K.-P. had previously reported to the CASA frightening thoughts of being removed and placed with the father. S.K.-P. therefore declared, “I want an attorney to help me with these things and help tell the judge what I want.” Id. at 138.
S.K.-P.‘s mother supported the motion, but the Department opposed it and S.K.-P.‘s GAL was neutral. The court held a hearing and then entered an order denying the motion for counsel without prejudice. The trial court found that based on the Mathews factors, there was no need to appoint counsel because S.K.-P.‘s interests were adequately safeguarded by the GAL and by S.K.-P.‘s mother, who was represented by counsel and whose interests aligned with S.K.-P.‘s.
The Court of Appeals granted S.K.-P.‘s motion for discretionary review, in which she argued that all children have the right to attorneys in dependency proceedings. On that same day, the Department dismissed S.K.-P.‘s dependency petition, and S.K.-P. was returned to the mother‘s custody. In re Dependency of S.K.-P., 200 Wn. App. 86, 92, 401 P.3d 442 (2017). On its own motion, the court considered whether to dismiss the appeal as moot.
In light of this court‘s guidance in Sorenson v. City of Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972), the Court of Appeals declined to dismiss and ultimately held that children in dependency proceedings do not have a categorical right to counsel. Instead, the Court of Appeals held that juvenile courts should continue to use the Mathews balancing test to appoint counsel on a case by case basis. S.K.-P., 200 Wn. App. at 92. S.K.-P. filed a petition for review, which this court granted, and consolidated with In re Dependency of E.H., 189 Wn.2d 1030 (2017).
ISSUES
- Is the mechanism for appointment of counsel for children contained within
RCW 13.34.100(7) sufficient to protect the due process rights of children in dependency proceedings under article I, section 3 of the Washington Constitution? - Did the juvenile court abuse its discretion by denying the motion to appoint counsel for E.H?
- Should the joint motion to seal the records of these consolidated cases be granted?
ANALYSIS
1. Facial Procedural Due Process Challenge and the Right to Counsel
Our current statutory law grants children a discretionary right to counsel. A child, a parent, a guardian, a caregiver, or the Department may petition the court to appoint counsel at public expense to represent a child in a dependency proceeding.
The appellants contend that the state due process clause is more protective than its federal counterpart and that therefore M.S.R. does not control. See M.S.R., 174 Wn.2d at 20 n.11 (declining to address state constitutional claims). This opinion turns first to our recent state precedent holding that in similar contexts, article
A. This Court Should Consider Federal Precedent
i. Recent State Precedent
In 2011, this court applied the Gunwall factors to determine whether, in the context of appointment of counsel for children in initial truancy hearings, the state due process clause was broader than the federal counterpart. Bellevue Sch. Dist. v. E.S., 171 Wn.2d 695, 714, 257 P.3d 570 (2011). We found that it was not. Id. Turning to federal guidance, we found that procedural due process did not require appointment of counsel for children in initial truancy hearings, notwithstanding the potential of a future contempt order stemming from the initial truancy hearing. Id.
More recently, in In re Welfare of A.W., this court held that in the context of a dependency guardianship proceeding,1 “[t]he Washington Constitution, article I, section 3, does not afford greater due process protection than the United States Constitution.” 182 Wn.2d 689, 701-02, 344 P.3d 1186 (2015). In A.W., this court held that the establishment of a dependency guardianship by a mere preponderance of the evidence was adequate under both the federal and state due process clauses. Id. at 702-03.
In 2012, this court addressed whether discretionary appointment of counsel for children at termination hearings satisfied federal due process requirements. In re Dependency of M.S.R., 174 Wn.2d at 20. We unanimously found that the Mathews test, applied on a case-by-case basis, provided adequate protection. Id. Although we did not reach the state constitutional question due to waiver, see id. n.11, if we had grave concerns about the article I, section 3‘s independent protections, we could have used our inherent authority to reach the issue (Alverado v. Wash. Pub. Power Supply Sys., 111 Wn.2d 424, 429, 759 P.2d 427 (1988) (WPPSS)) or directed the parties to submit supplemental briefing on that issue.
Thus, our recent precedent supports a finding that article I, section 3 should not be interpreted independently from its federal counterpart in the context of appointment of counsel for children. The same outcome would be reached through applying the Gunwall factors to this specific case.
ii. Gunwall Analysis
In Gunwall, we set forth the following nonexclusive factors to be considered when determining whether a provision of the state constitution should be interpreted independently of its corresponding federal constitutional provision: “(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.” 106 Wn.2d at 58.
The first, second, and third factors all support applying federal precedent because the texts are “nearly identical,” and there is no legislative history supporting an independent analysis. See State v. Wittenbarger, 124 Wn.2d 467, 480, 880 P.2d 517 (1994); State v. Ortiz, 119 Wn.2d 294, 303, 831 P.2d 1060 (1992).
The fourth factor, preexisting state law regarding appointment of attorneys for children, also does not support independent analysis. Historically, the statutory and common law viewed the presence of a guardian as necessary to protect the interests of children who were parties to an action for so long as they suffered under the incapacity of infancy. See CODE OF 1881, ch. I, § 12. The common law incapacity of minors persists, with two exceptions for actions relating to domestic violence and child truancy.
The fifth factor, structural differences between the state and federal constitution, supports independent interpretation of the state constitution in every case. State v. Foster, 135 Wn.2d 441, 458-59, 957 P.2d 712 (1998) (plurality opinion). The sixth factor, whether the matters are of particular state interest or local concern, more accurately addresses whether there “appear[s] to be a need for national uniformity” regarding the subject matter. Gunwall, 106 Wn.2d at 62. There is no need for national uniformity for procedures in dependency hearings, and thus the sixth factor favors independent state analysis.
On balance, the Gunwall factors support utilizing federal guidance. Only the fifth and sixth factors support independent analysis. The other four factors, as well as our recent precedent in the dependency context, holding that article I, section 3‘s protections are coextensive with the Fourteenth Amendment‘s, support following federal precedent regarding when a case-by-case approach to appointment of counsel is appropriate. See A.W., 182 Wn.2d at 701-02.
B. Federal Guidance Supports a Case-by-Case Approach
The purpose of the test set forth in Gunwall is to determine when and to what extent ““[f]ederal precedent in areas addressed by similar provisions in our state constitutions can be meaningful and instructive.“” Gunwall, 106 Wn.2d at 60 (quoting State v. Hunt, 91 N.J. 338, 363, 450 A.2d 952 (1982) (Handler, J., concurring)). The United States Supreme Court addressed the issue of whether indigent parents have a categorical right to representation in termination proceedings. Lassiter v. Dep‘t of Soc. Servs., 452 U.S. 18, 26, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). In applying the case-by-case approach, the Lassiter Court relied on an earlier case, Gagnon, which addressed whether due process required the appointment of counsel at public expense for indigent probationers in probation revocation hearings. Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). Although it addressed counsel in a different type of proceeding, the reasoning in Gagnon supports applying the case-by-case approach in the dependency setting.
In Gagnon, the Court identified a number of factors that were relevant in finding a case-by-case approach appropriate. Gagnon, 411 U.S. at 789. First, the court noted the rehabilitative purpose of probation hearings and that the flexibility that hearing boards are afforded in those proceedings allows them to exercise both a quasi-judicial role as a fact finder and an equitable role in helping probationers reintegrate into society. Id. at 786-89.
Second, in contrasting probation revocation hearings with criminal trials, the Court noted that in criminal trials the State is represented by a prosecutor, that the formal rules of evidence are in force, that there
Because of these differences, the Court held that “[t]he need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases.” Id. Therefore, rather than create what it called “a new inflexible constitutional rule with respect to the requirement of counsel,” the Court left the decision as to the need for counsel to be made on a case-by-case basis. Id. at 790. This approach makes sense in dependency proceedings, where the State assumes the protective responsibilities of parents.
Dependency proceedings are more similar to probation revocation hearings than criminal hearings, in particular as they relate to the children who are the subject of the proceedings. Unlike the parents, who stand in equipoise with the State and whose interests are more directly adverse to the State‘s, a child‘s relationship with the Department is similar to a probationer‘s with a probation officer. The purpose of a dependency hearing is to serve and protect the best interests of the child, and that purpose makes those hearings orthogonal to truly adversarial proceedings.
Furthermore, the State is not always a party, let alone represented by counsel. Dependency petitions may be brought by “[a]ny person.”
The Gagnon Court noted that in certain cases, fundamental fairness requires the appointment of counsel at public expense and listed some scenarios in which this would presumptively be the case. Gagnon, 411 U.S. at 790. Those scenarios included when the underlying facts are disputed, when the reasons given in opposition of the deprivation of liberty are complex or otherwise difficult to develop or present, and when the person requesting counsel is not capable of speaking effectively for himself or herself. Id. at 790-91. In addition to the age and custodial status of the child, courts should consider whether a particular scenario warrants appointment.
When a child disputes the facts that form a basis for a dependency, when a child presents a complex or sophisticated argument against the State‘s proposed decision, or when a child old enough to voice a preference is rendered voiceless in the proceedings because his or her stated wishes are misaligned with his or her GAL‘s assessment of his or her best interests, appointment of counsel is likely proper.
Further, the Court in Gagnon required that in every case, the basis for the denial of a request for counsel be “stated succinctly in the record.” Id. at 791. We agree with this requirement, as well, to preserve the additional safeguard of appellate review. See M.S.R., 174 Wn.2d at 21. To protect against challenges to dependency proceedings, we urge trial courts to sua sponte raise the issue of representation for children at the earliest practicable time in the proceedings.
Finally, while the United States Supreme Court in Lassiter held that the Mathews test was appropriate for a case-by-case determination of whether an indigent parent in a termination proceeding was entitled to counsel, it held that courts must then set the net weight of the Mathews elements against the presumption that there is a right to appointed counsel only where the requester‘s personal freedom is at risk.
Lassiter, 452 U.S. at 27. The source of that presumption was federal precedent. Id. at 26 (citing Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979)). Because no such state precedent applies, it does not follow that a federal presumption against counsel should be imported into this analysis. Therefore, the burden of a movant requesting counsel for a child is the preponderance standard, and movants need not rebut any presumption against appointment of counsel.
C. Independent State Constitutional Analysis
Although we hold that federal precedent should be used to guide our reasoning, the due process protection in our state constitution is generally the same as the federal guaranty, even in the context of dependency proceedings.3 For regardless of whether we turn to federal guidance to interpret the state protection, the true “question is what the state‘s guarantee means and how it applies to the case at hand.” Malyon v. Pierce County, 131 Wn. 2d 779, 798 n.30, 935 P.2d 1272 (1997). Because the Mathews test is adequate to ensure procedural due process protections under both the state and federal constitutions, the question of
Our state guaranty of due process shares the same basic concerns as the federal counterpart. A procedural due process challenge under our state provision turns on whether the increased decisional accuracy afforded by additional procedure to safeguard against an erroneous deprivation of a private interest is outweighed by the State‘s legitimate reasons for denying more protections. See E.S., 171 Wn.2d at 717 (Chambers, J., dissenting) (“Nevertheless, the balancing test adopted by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), offers a valuable tool when determining what is required under article I, section 3 as well as the Fourteenth Amendment to the United States Constitution.“).
This analysis requires us to compare the status quo to the procedures sought and identify (1) “the private interest that will be affected by the official action“; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards“; and (3) “the [g]overnment‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335; E.S., 171 Wn.2d at 705.
Here, the comparison to be made is between the current statutory regime, in which children have a discretionary right to petition for counsel, and a strict rule under which all children in dependency proceedings must be represented by attorneys, absent waiver. Applying the Mathews factors to this inquiry, the appropriateness of a case-by-case approach is made all the more clear.
First, the private interest will vary depending on the circumstances. In some cases, such as when a child is found dependent
Second, the amount of decisional accuracy added by adopting the proposed rule of automatic appointment of counsel is based on both the increased decisional accuracy afforded by attorneys when they are constitutionally warranted and the likelihood that the current case-by-case approach fails to appoint an attorney when one is required. If the current system leads to the appointment of counsel whenever it is constitutionally required, then the proposed automatic appointment rule provides no additional constitutional protections. This calculation is exceedingly difficult, as whether counsel is required depends on the facts of each underlying case.
Further, the amount of increased decisional accuracy afforded by an attorney will vary. Procedural due process protects against erroneous state actions. This will occur in the dependency setting only when the State abridges a child‘s liberty based on an erroneous determination of the best interest of that child. If a child‘s stated interests are indeterminable due to infancy or if they are aligned with his or her GAL‘s assessment of what is in his or her best interest, then the increased decisional accuracy of an attorney will likely be low. While there may be substantial policy arguments supporting the appointment of attorneys for children to decrease the duration of dependencies and increase the children‘s comfort and agency in the courtroom, it is only the value with regard to decreasing erroneous deprivations of liberty that is considered under procedural due process. Those other policy arguments are legislative in nature and should be balanced against other public interests and concerns. See SUBSTITUTE H.B. 1251, 65th Leg., Reg. Sess. (Wash. 2017); S.B. 5363, 65th Leg. Reg. Sess. (Wash. 2017) (proposed amendments to
Finally, the government‘s interest against adopting a categorical requirement of representation is high. Concerns include both cost and practicability, as some counties may be faced with a shortage of attorneys for children. See ENGROSSED SUBSTITUTE S.B. REP. 6126, 63d Leg., Reg. Sess. (Wash. 2014). Requiring the appointment of counsel prior to removal, as petitioners request, lessens the State‘s ability to expediently protect at-risk children. Because each family is different, each
dependency proceeding is different. Those differences are accounted for in the flexibility afforded to trial courts under the current case-by-case regime, and that flexibility is a boon to the State‘s ability to protect children.
Thus, analyzing the state provision independently from its federal counterpart, the discretionary right to counsel granted to children in dependency proceedings is adequate under our state‘s due process guaranty.
D. Mathews Remains the Test for Appointment of Counsel
For the above reasons, we find that the statutory scheme regarding appointment of counsel for children is constitutionally adequate under
In determining whether counsel is required, courts are to apply the Mathews factors on a case-by-case basis, taking into account the specific interests at risk in each instance, the additional decisional accuracy that would be afforded by appointing an attorney, and the government‘s interest in not appointing counsel. Mathews, 424 U.S. at 335. Although not an
2. The Trial Court Did Not Err in Denying E.H. Counsel
In addition to the facial challenge to the statutory scheme, E.H. challenges the denial of the motion for appointment of counsel for E.H. in that case.4 While categorical Mathews challenges are questions of pure law, whether E.H. individually was entitled to an attorney under the Mathews test is a mixed question of law and fact. As such, the standard of review typically “depends on whether answering it entails primarily legal or factual work.” U.S. Bank Nat‘l Ass‘n v. Vill. at Lakeridge, LLC, ___ U.S. ___, 138 S. Ct. 960, 967, 200 L. Ed. 2d 218 (2018). The constitutional nature of the issue “favors de novo review even when answering a mixed question primarily involves plunging into a factual record.” Id. at n.4. Thus, on appeal, the determination of whether an attorney was constitutionally required under Mathews is performed de novo, with deference given to the factual findings made by the trial court in the first instance, where appropriate.
In this case, the Mathews factors did not require appointment of counsel. This is chiefly because of the “specific circumstances . . . at the time the motion for appointed counsel [wa]s made.” Dissent at 23 (citing M.S.R., 174 Wn.2d at 22 n.13). The particular interest that was at risk of erroneous deprivation when the motion was made involved E.H.‘s visitation with siblings. No decisions regarding placement were at issue. At the time the motion was made, being returned to R.R.‘s care was not an option due to her incarceration. Nor was the Department moving to terminate R.R.‘s parental rights. E.H. had been living in the same foster placement for over two years, and there was no indication in the record of any concerns regarding the safety or stability of that placement. Thus, the interest at risk of being erroneously deprived when the motion was made was E.H.‘s interest in sibling visitation.
Without minimizing that interest, under the Mathews prong, that interest is of a comparatively lesser constitutional magnitude than an interest in physical autonomy or medical or educational decisions, although it is a recognized liberty interest.
Under the second Mathews prong, however, it is unclear what additional decisional accuracy an attorney for E.H. would have provided the trial court in making its decision regarding visitation. Many of the parties present had attorneys, and their interests overlapped with E.H.‘s. E.H.‘s CASA was present and stated E.H.‘s interest in visits. The trial court identified the exemplary performance of the parties, attorneys, and GALs at raising issues regarding visitation preemptively and quickly, and stressed that there was not an imminent risk of an erroneous deprivation. There was no misalignment between E.H. and E.H.‘s CASA regarding visitation, and thus the risk of an erroneous deprivation of that interest was low.
The trial court accurately identified that the State‘s primary interest was reaching permanent and safe placement for E.H. and that that interest was not frustrated by the appointment of counsel for E.H. It also identified a financial interest, and while that interest is not sufficient to deny a safeguard to protect against an erroneous deprivation, at the time the motion for counsel was made, appointing counsel for E.H. would not have added any meaningful protections regarding
The commissioner noted that if the Department moved to terminate R.R.‘s parental rights and E.H. remained at odds with the CASA‘s recommendation, the issue of appointment of counsel should likely be reconsidered. The Department has moved to terminate, and this court stayed consideration of those proceedings pending the publication of this decision. Once that stay is lifted, the trial court should reconsider the appropriateness of counsel for E.H. in light of this decision, applying the Mathews test to the particular interests E.H. is at risk of erroneously losing.
3. The Record Is Sealed under GR 15(g)
The parties jointly moved to seal records in the underlying juvenile court files and the appellate files in this matter, and to require the use of initials to protect the identity of the children and parents involved in these disputes. A commissioner of the Court of Appeals has granted much of this relief. The remaining request is to seal the trial court records contained in appellate files. The parties’ joint GR 15 motion to seal these records is granted. Further, to provide guidance to future parties and intermediate appellate courts, we hold that trial court records of nondelinquency juvenile court hearings should remain sealed on appeal, recognizing GR 15(g)‘s abrogation of J.B.S., 122 Wn.2d at 137-38.
Two significant changes have occurred since this court‘s decision in 1993. First, in 1997, GR 15 was amended to include a new provision. Second, we addressed the constitutional question that we declined to reach in J.B.S. and ruled that under the experience and logic test,
In 1997, GR 15 was amended to include what is now GR 15(g): “Use of Sealed Records on Appeal.” See In re Dependency of G.A.R., 137 Wn. App. 1, 13, 150 P.3d 643 (2007). That provision provides that “[c]ourt records sealed in the trial court shall be sealed from public access in the appellate court subject to further order of the appellate court.” GR 15(g). As the Court of Appeals in G.A.R. held, GR 15(g) preserves the confidentiality of juvenile court files and records. G.A.R., 137 Wn. App. at 13. This new provision partially abrogated J.B.S. to the extent that our opinion in that case held that confidential trial records are unsealed on appeal. Accordingly, records that are confidential under
CONCLUSION
Under both the state and federal constitutions, the discretionary standard for appointment of counsel in
We grant the joint motion to seal the appellate record. To provide clarity to intermediate appellate courts, we reach the question of whether such a motion is necessary, given the 1997 amendments to GR 15. Recognizing the abrogation of J.B.S., 122 Wn.2d 135, by the promulgation of GR 15(g), we hold that the confidential nature of dependency proceedings granted by
WE CONCUR:
Owens, J.
Fairhurst, C.J.
Johnson, J.
Wiggins, J.
STEPHENS, J. (concurring in part, dissenting in part)—I join the lead opinion in all respects save for its resolution of the parties’ motion to seal the record. I agree with Justice Gordon McCloud‘s partial dissent that the motion to seal should be denied under
Stephens, J.
GORDON McCLOUD, J. (concurring in part and dissenting in part)—I agree with the lead opinion that both
With regard to the first issue—the child‘s right to appointment of counsel during a dependency proceeding—the lead opinion and the dissent agree on one key point. They agree that before making a decision on whether to appoint counsel, the trial court must consider “[whether the] child disputes the facts that form a basis for a dependency, [whether the] child presents a complex or sophisticated argument against the State‘s proposed decision,” and whether “a child old enough to voice a preference” about the dependency voices a position different from the position advanced by the guardian ad litem. Lead opinion at 16; see also dissent at 26. Full consideration of these and any other factors raised by the parties when considering whether to appoint counsel for the child should go a long way towards addressing the problems detailed in the dissent. Dissent at 23-25.
However, I disagree with the lead opinion‘s resolution of the parties’ joint motion to seal the record in this court. The lead opinion holds that State v. S.J.C., 183 Wn.2d 408, 352 P.3d 749 (2015), and GR 15(g) authorize the appellate courts to seal the complete record in all dependency proceedings—regardless of anything in
The lead and dissenting opinions reason that S.J.C. already held that
I respectfully disagree. S.J.C. addressed one issue, and it concerned the sealing of dispositions in juvenile criminal
To be sure, I disagreed with the decision in that case to exempt juvenile criminal proceedings from that constitutional protection. S.J.C., 183 Wn.2d at 435 (Stephens, J., dissenting). But I do not rest my assessment of the parties’ motion to seal the record in this case on a prior dissent. Instead, I rest it on the fact that the question presented here is different from the question presented there—this case involves the record of a dependency proceeding. S.J.C. involved the record of a criminal disposition held in juvenile court specifically to avoid the stigma, formalities, and nonrehabilitative adverse consequences of an adult criminal conviction, and it based its decision on our state‘s historical treatment of such juvenile criminal dispositions. S.J.C., 183 Wn.2d at 418-19.
For that reason, I would deny the parties’ agreed motion to discard the constitutional protection that “justice shall be administered openly” in all courts of our state. I fear that we are carving out courts to shield from public view one by one—first, juvenile courts, S.J.C., 183 Wn.2d at 435 (Stephens, J., dissenting); next, certain therapeutic courts, State v. Sykes, 182 Wn.2d 168, 339 P.3d 972 (2014); and now, dependency proceedings.
While I concur in the lead opinion‘s holding on the due process question presented by this case, I respectfully dissent from its conclusion that dependency proceedings can now join the growing list of cases that are exempt from the benefits that the constitutional guaranty of open courtrooms, open court files, and open government was supposed to bring to the people.
Gordon McCloud, J.
YU, J. (dissenting in part) — Our jurisprudence has evolved in its understanding that children have cognizable rights and protected interests. We have correspondingly grown in our recognition that children‘s rights and interests are entitled to legal protection. Therefore, “the law has constructed a constitutional wall around juveniles, maintaining its integrity through a continuous process of refining its contours and repairing its cracks.” State v. S.J.C., 183 Wn.2d 408, 413, 352 P.3d 749 (2015). Today, the lead opinion abruptly reverses course, rejecting the progress we have made and reverting to the view that children in dependency cases are commodities to be allocated, not individuals to be heard. I cannot join the lead opinion‘s retreat to a perspective that treats children as mere “chattels incident to adult domestic relations.” Id.
The dependency case involving S.K.-P. has been dismissed. In re Dependency of S.K.-P., 200 Wn. App. 86, 92, 401 P.3d 442, review granted, 189 Wn.2d 1030, 408 P.3d 1094 (2017). Therefore, reversing the ruling denying appointed counsel in E.H.‘s case on a narrow, case-by-case basis would be sufficient to resolve the pending issues presented. Further, I agree that the joint motion to seal should be granted. I thus respectfully dissent in part.
However, I must register my deep concern at the lead opinion‘s conclusion that
A. The discretionary, case-by-case approach to appointing counsel for children in dependency cases violates the Washington Constitution
All children in dependency cases unquestionably have significant, substantive rights pursuant to Washington law, including the right to state their positions and to have those positions represented in court.
1. Article I, section 3 is more protective of a child‘s right to appointed counsel in dependency cases than the Fourteenth Amendment is
“In determining the meaning of a state constitutional provision, ‘the focus is on whether the unique characteristics of the state constitutional provision and its prior interpretations actually compel a particular result.‘” State v. Pugh, 167 Wn.2d 825, 835, 225 P.3d 892 (2009) (internal quotation marks omitted) (quoting State v. Chenoweth, 160 Wn.2d 454, 463, 158 P.3d 595 (2007)). Therefore, “context matters when we are determining whether to independently analyze the state due process clause.” Bellevue Sch. Dist. v. E.S., 171 Wn.2d 695, 711, 257 P.3d 570 (2011). The specific context presented here is a child‘s right to representation in a dependency case. In this context, the Gunwall1 factors and recent precedent lead me to conclude that
a. The Gunwall factors are evenly split because preexisting state law supports an independent interpretation
I agree that the first three Gunwall factors do not support an independent interpretation of
In evaluating preexisting state law, we must “consider the degree of protection that Washington State has historically given in similar situations.” Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 809, 83 P.3d 419 (2004). The question is not whether Washington has historically accorded children extensive due process rights generally. It is whether Washington law has been more protective than federal law in the context presented. Historical statutory and common law demonstrate a long-standing commitment in Washington State to providing representation for children in dependency cases and similar contexts. Such a commitment is noticeably and unsurprisingly lacking in historical federal law because, as the Supreme Court of the United States has noted, any question about familial relationships ““belongs to the laws of the States and not to the laws of the United States.“” Rose v. Rose, 481 U.S. 619, 625, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987) (quoting In re Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 34 L. Ed. 500 (1890)).
It is true that historically, Washington has required that children who are parties in a court case must appear by guardian. Lead opinion at 11. However, it is not true that this long-standing requirement “cuts against any finding that the state due process clause expands protections for the appointment of attorneys for children, as historically children have not had the right to appear in court at all, let alone with counsel.” Id. Gunwall is a threshold inquiry. Therefore, the fourth Gunwall factor asks whether state law has historically been more protective than the federal constitution, not whether historical state law already recognizes the
Washington‘s historical practice of having children appear through a guardian reflects Washington‘s overall historical protections, “particularly in disputes touching on the rights and protection of minors.” In re Parentage of L.B., 155 Wn.2d 679, 696-97, 122 P.3d 161 (2005) (citing Borenback v. Borenback, 34 Wn.2d 172, 208 P.2d 635 (1949) (citing Allen v. Allen, 28 Wn.2d 219, 182 P.2d 23 (1947); Mitchell v. Mitchell, 24 Wn.2d 701, 166 P.2d 938 (1946); Lindblom v. Lindblom, 22 Wn.2d 291, 155 P.2d 790 (1945); Flagg v. Flagg, 192 Wash. 679, 74 P.2d 189 (1937); Wixson v. Wixson, 172 Wash. 151, 19 P.2d 912 (1933))). These protections “extend[ ] considerably greater protections to our citizens in this regard than do comparable federal statutes and rulings thereon.” Gunwall, 106 Wn.2d at 66. Most notably, for federal purposes, “[n]early everyone would identify 1967 as the most important year in the history of counsel for children in the United States.” Martin Guggenheim, Reconsidering the Need for Counsel for Children in Custody, Visitation and Child Protection Proceedings, 29 LOY. U. CHI. L.J. 299, 301 (1998). By that time, “[m]ost of the practices prescribed by the Supreme Court were already in place in Washington.” S.J.C., 183 Wn.2d at 424.
Preexisting state law thus shows Washington has historically granted more procedural protections for children‘s representation in court than federal law has done. The fourth Gunwall factor supports an independent interpretation, leaving the Gunwall factors evenly split.
b. Recent court and legislative decisions confirm that article I, section 3 should be interpreted independently in this context
Because the six Gunwall factors are explicitly nonexclusive, we should resolve the split by looking to recent decisions by this court and the legislature. “[T]his court has been zealous in its protection of familial relationships,” and the legislature has consistently and repeatedly built on earlier law to increase
procedural protections for children‘s representation in family law cases. In re Dependency of M.S.R., 174 Wn.2d 1, 15-16, 271 P.3d 234 (2012). The substance and direction of this recent law show thatOver 30 years ago, this court recognized in an action to determine parentage that “[a] child must not be a party in name only. It is fundamental that parties whose interests are at stake must have an opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” State v. Santos, 104 Wn.2d 142, 147, 702 P.2d 1179 (1985) (quoting Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 422, 511 P.2d 1002 (1973)). A few years later, we reemphasized that “children involved in dependency and termination actions are parties to those actions and entitled to representation. Children have a right to be represented by a guardian ad litem or an attorney or both, who have the right to fully participate in all proceedings.” In re Dependency of J.H., 117 Wn.2d 460, 477, 815 P.2d 1380 (1991) (emphasis added) (footnotes omitted).2 And in 2005, we strongly urged trial courts “to consider the interests of children in dependency, parentage, visitation, custody, and support proceedings, and whether appointing counsel, in addition to and separate from the appointment of a [guardian ad litem], to act on their behalf and represent their interests would be appropriate
Additionally, the legislature has taken important steps to provide for appointed counsel for children in dependency and termination cases that exceed federal statutory protections. Within the past 10 years, the legislature has enacted statutes that (1) require the State and the guardian ad litem (GAL) or court appointed special advocate (CASA) to notify all children who are at least 12 years old that they have a right to request counsel, (2) require appointment of counsel for children six months after all parental rights have been terminated, and (3) permit judges to appoint counsel for children in all dependency proceedings on a case-by-case basis. LAWS OF 2010, ch. 180, § 2; LAWS OF 2014, ch. 108, § 2. By comparison, Congress has enacted only “a limited statutory right of representation (though not necessarily by attorney) . . . as a condition for receiving federal funds.” M.S.R., 174 Wn.2d at 14 n.7 (citing
The lead opinion renders these legislative efforts largely meaningless by holding that a child‘s statutory right to counsel in a dependency case is coextensive with the right to counsel that a child already has pursuant to the federal due process clause. Lead opinion at 21-22. In addition, the recent cases the lead opinion points to are of little to no relevance in this context. Id. at 9-10 (citing E.S., 171 Wn.2d 695; In re Welfare of A.W., 182 Wn.2d 689, 344 P.3d 1186 (2015); M.S.R., 174 Wn.2d 1).
E.S. considered a child‘s right to appointed counsel only “in the context of an initial truancy proceeding,” explicitly stated that the “right to counsel in a context entirely outside the scope of truancy is not instructive,” and specifically declined to give weight to cases concerning the right to counsel in dependency cases. 171 Wn.2d at 711-13. Moreover, the court declined to find a right to appointed counsel in E.S. because the petitioner “failed to show any private interest that was affected by the initial truancy hearing.” Id. at 708 (emphasis added). The same cannot possibly be said of any hearing in a dependency case.
A.W. did consider a similar type of case, but an entirely different aspect of due process. It did not consider appointment of counsel for anyone, much less for children. A.W. considered only the applicable burden of proof in a dependency guardianship. 182 Wn.2d at 703. Further, it expressly did not consider the child‘s rights as independent of the parent‘s rights because “[t]he State must assume that the interests of the parent and the child converge until the State proves by the requisite standard that there is parental unfitness,” which of course cannot happen until the requisite standard is defined. Id. at 707 n.16. A.W. is therefore not instructive on the issue presented.
Finally, the outcome of M.S.R. is entirely irrelevant to determining whether the state constitution is more protective than the federal. M.S.R. explicitly did not reach any state constitution claims because they were inadequately briefed. 174 Wn.2d at 20 n.11. We have the authority to request additional briefing, but this court‘s declining to reach inadequately briefed issues is not proof that we are unconcerned with the merits. Contra lead opinion at 10. Treating it as such inappropriately disregards the basic structure of appellate proceedings in which the parties have both the right and the duty to brief the issues as they see fit. It also sets dangerous precedent, inviting parties to assume we have implicitly decided issues that our published opinions explicitly declined to address.
Therefore, while the nonexclusive Gunwall factors are evenly split, recent cases and statutes conclusively show that
2. Article I, section 3 requires consistent practices for appointing counsel to represent children in dependency cases
I agree that for both state and federal purposes, a procedural due process analysis requires consideration of the private and government interests at stake, the risk of erroneous deprivation, and the value of additional procedural safeguards. Lead opinion at 17-18. However, the lead opinion (despite its insistence that the federal constitution controls) purports to conduct an independent state analysis without accounting for relevant features of state law. Id. at 17-21. “When a state court neglects its duty to evaluate and apply its state constitution, it deprives the people of their ‘double security.‘” Alderwood Assocs. v. Wash. Envtl. Council, 96 Wn.2d 230, 238, 635 P.2d 108 (1981) (quoting THE FEDERALIST NO. 51, at 339 (A. Hamilton or J. Madison) (Modern Library ed., 1937)). The lead opinion effects just such a deprivation here.
I would hold that in light of the interests and rights at stake in dependency proceedings specifically as a matter of state (as opposed to federal) law, it is clear that the current, case-by-case approach to appointing counsel does not satisfy
Every dependency case implicates the protected interests and statutory rights of every child involved. M.S.R., 174 Wn.2d at 17-18. And in every dependency case, the child faces at least some risk that he or she will be erroneously deprived of his or her rights. Without any statutory guidance as to when counsel should be appointed to protect the child‘s rights, though, each child is subject to the policies and viewpoint of the particular court presiding over the case, limited only by the minimum requirements of constitutional due process. This system does not sufficiently protect the significant substantive rights at stake for children in dependency proceedings.
a. All children have protected interests and statutory rights at stake in dependency cases
Every child in a dependency case has the same interests and faces the same risks at various points in the proceedings. The most obvious protected interest at risk is the child‘s interest in maintaining continuous relationships with his or her family. “In a dependency or termination proceeding . . . the child is at risk of not only losing a parent but also relationships with sibling(s), grandparents, aunts, uncles, and other extended family.” Id. at 15. This risk is far more important than the lead opinion today realizes. See lead opinion at 23.
[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promot[ing] a way of life through the instruction of children as well as from the fact of blood relationship.
Once we recognize that the child‘s interest in his or her familial bonds is constitutionally protected, and that familial bonds stem not just from biology, but also from the intimacies of daily association, then it logically follows that a child has a constitutionally protected interest in whatever relationships comprise his or her family unit.
In re Custody of Shields, 157 Wn.2d 126, 152, 136 P.3d 117 (2006) (Bridge, J., concurring) (alterations in original) (citations and quotation marks omitted) (quoting Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 844, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977)). Therefore, “maintaining the integrity of the family relationships, including the child‘s parents, siblings, and other familiar relationships” is a protected liberty interest that every child has and that every child risks losing in a dependency case. M.S.R., 174 Wn.2d at 20.
Where a child in a dependency case is in the care of his or her parents or other relatives, the child has the right to a safe, secure, and appropriate placement to protect his or her physical liberty and bodily integrity. M.S.R., 174 Wn.2d at 16-17. But where a child is removed from his or her parents’ care and cannot be placed with a relative or someone else the child knows, the child must “face the daunting challenge of having his or her person put in the custody of the State as a foster child, powerless and voiceless, to be forced to move from one foster home to another.” Id. at 16. All children in foster care have “substantive due process rights that the State, in its exercise of executive authority, is bound to respect,” particularly the “right to be free from unreasonable risk of harm, including a risk flowing from the lack of basic services, and a right to reasonable safety.” Braam v. State, 150 Wn.2d 689, 698-99, 81 P.3d 851 (2003).
In addition to these constitutionally protected interests, every child has the statutory right “to be heard in his or her own behalf.”
Thus, every dependency case implicates fundamental rights that every child has in accordance with Washington law. As discussed further below, all children who are not represented by attorneys are placed at an unacceptably high risk of being erroneously deprived of their rights in a dependency case. Despite these common interests and risks, however, the current, unguided, discretionary system for appointing counsel ensures that whether a child will have an attorney varies depending on which court is considering his or her case.
b. The risk that a child without an attorney will be erroneously deprived of protected interests and rights is unacceptably high, and the current discretionary system does not mitigate that risk
“While an adult may have an understanding of substantive and procedural issues, and court process, children are at great risk of misunderstanding both.” Amy E. Halbrook, Custody: Kids, Counsel and the Constitution, 12 DUKE J. CONST. L. & PUB. POL‘Y 179, 212 (2016). Such misunderstandings create an extremely high risk that unrepresented children in dependency cases will be deprived of their protected interests and statutory rights, with potentially devastating consequences.
The State places great emphasis on the procedural protections already in place for children, including their right to an appointed GAL or CASA and the possibility of counsel being appointed on a discretionary, case-by-case basis. However, an appointed GAL or CASA does not play the same role as an attorney representing the child‘s position and does not mitigate the risk of erroneous deprivation as an attorney does. Moreover, the current discretionary system for appointed counsel is not sufficient to ensure that
It has been empirically shown that children who are not represented by attorneys are routinely erroneously deprived of their most fundamental protected interests and statutory rights, even when they have an appointed GAL or CASA. For instance,
youth who were appointed an attorney at the first dependency hearing were 20 percent more likely to reside with known persons instead of foster parents than those children appointed attorneys sometime after the initial shelter care hearing (and 27 percent more than those children without an attorney until after termination of parental rights).
Amicus Curiae Br. of Legal Counsel for Youth & Children at 13. All children have the right to be placed with people they know instead of the foster care system where possible.
In addition, a child might not know that he or she had the right to “‘speak up if he didn‘t feel good in a placement.‘” Amici Curiae Br. of Ctr. for Children & Youth Justice & Mockingbird Soc‘y (CCYJ) at 5 (quoting ALICIA LEVEZU, CHILDREN & YOUTH ADVOCACY CLINIC AT UNIV. OF WASH., DEFENDING OUR CHILDREN: A CHILD‘S ACCESS TO JUSTICE IN WASHINGTON STATE 5 (Aug. 2016) (Defending Our Children), http://cdcasa.org/wp-content/uploads/2017/01/UW-Study-2016-Defending-Our-Children.pdf [https://perma.cc/5KUG-Z8L6]). If the child is being abused or neglected in that placement, he or she may become trapped in an even more perilous situation than the one that existed before the dependency case began. It is unlikely that a child who has been placed in an abusive situation by the State will know that he or she has a right to be heard unless that right is explained to the child by an attorney. Even a child who does know his or her rights, however, will likely “stop[] seeing the value in expressing his opinion and [begin] to feel lost in the system” after being subjected to inappropriate placements or frequent moves without anyone to advocate for the child‘s position. Id. at 10.
The fact that children who have a GAL or CASA but no attorney are more likely to be erroneously deprived of their rights is not surprising because “GALs and CASAs are not trained to, nor is it their role to, protect the legal rights of the child.” M.S.R., 174 Wn.2d at 21. Instead, their statutorily mandated role is “[t]o represent and be an advocate for the best interests of the child.”
“Unlike GALs or CASAs, lawyers maintain confidential communications, which are privileged in court.” M.S.R., 174 Wn.2d at 21. An attorney can therefore encourage a child to freely express what he or she thinks and wants, and can honestly promise not to divulge information the child wants to keep private. GALs and CASAs cannot because they are required to “report to the court any views or positions expressed by the child on issues pending before the court.”
In addition to making it more difficult for a child to communicate honestly, the GAL‘s or CASA‘s mandatory reporting duty might be mistakenly viewed as giving the child a sufficient voice in the proceedings. E.g., S.K.-P., 200 Wn. App. at 110; State Dep‘t of Soc. & Health Servs. Suppl. Br. at 14. A GAL or CASA is charged with reporting the child‘s position, not representing it. These are two different functions, clearly reflected by the fact that the legislature provides for both discretionary appointment of counsel to “represent” the child‘s
An appointed GAL or CASA is not a confidential counsel or advocate. An appointed attorney is. When children have attorneys, the risk that they will be erroneously deprived of their protected interests and statutory rights drops dramatically.
Because all children have fundamental, substantive interests and rights in their dependency cases, one might reasonably assume that all similarly situated children will receive appointed counsel on the same basis so their voices can be heard and their legal rights can be protected. One might also reasonably assume that a court‘s discretionary decision whether to appoint counsel would necessarily involve careful consideration of case-specific factors, including the child‘s age and mental capacity, the child‘s ability to express his or her preferences, whether the child‘s expressed preferences differ from the GAL‘s or CASA‘s assessment of the child‘s best interests, whether the child‘s position is being adequately represented in the proceedings, and the complexity of the underlying facts or legal issues.
Unfortunately, such reasonable assumptions would be misplaced. The discretionary and unguided nature of our current statute has resulted in inconsistent practices, such that “‘[w]hether or not a child is represented by an attorney in a dependency proceeding depends largely on local practices in the county where the child‘s case is heard.‘” Amicus Curiae Br. of Legal Counsel for Youth & Children at 17 (quoting OFFICE OF FAMILY & CHILDREN‘S OMBUDS, 2013 ANNUAL REPORT 55 (Jan. 2014), http://ofco.wa.gov/wp-content/uploads/ofco_2013_annual.pdf [https://perma.cc/GN75-UNBZ]). “In fact, across Snohomish, King and Pierce counties, the discretionary appointment of counsel at hearings occurred for less than 1 [percent] of all children without advocates.” Amici Curiae Br. of CCYJ at 15 (emphasis added) (citing Defending Our Children at 28). This circumstance is both unethical and unconstitutional.
As reflected by the plain language of
c. No countervailing government interests justify the risks that unrepresented children face in dependency cases
In every dependency and termination case, “the State has a compelling interest in both the welfare of the child and in ‘an accurate and just decision.‘” M.S.R., 174 Wn.2d at 18 (quoting Lassiter v. Dep‘t of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981)). However, these interests would be furthered, not hindered, by appointing counsel for children in dependency cases.
Trial courts cannot ascertain what is in the child‘s best interests by simply deferring to a CASA‘s or GAL‘s position. Courts must instead consider the positions of all the parties and reach their own conclusions. They cannot do so if the child‘s position is not represented. Therefore, the State‘s most compelling interests support the same result as the private interests at stake for the child: appoint counsel to represent the child‘s position. The only countervailing interest the State has is saving money, but “[f]inancial cost alone is not a controlling weight,” particularly when the private interests at stake are as fundamentally important as a child‘s interests in a dependency case are. Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
The lead opinion is wrong to conclude otherwise.
B. E.H. is entitled to appointed counsel pursuant to the Fourteenth Amendment
In addition to my strong disagreement with the lead opinion‘s analysis of
The
1. A case-by-case analysis must account for the particular interests that are currently at risk of erroneous deprivation
The trial court correctly recognized that E.H. could be appointed counsel on a case-by-case basis and that he had a “significant private interest” at stake. Pet‘r‘s Suppl. Br., Corrected J.A. at 9. However, it is not sufficient in a case-by-case analysis to recite the interests that are generally at stake for any child at some point in a dependency case. If the case-by-case analysis is to be meaningful, it must account for the specific circumstances and the particular child at the time the motion for appointed counsel is made. M.S.R., 174 Wn.2d at 22 n.13.
The court here, however, noted only the generally applicable risks that every child faces at some point in a dependency proceeding, including “removal from home, the possibility of repeated placements in foster care and the dangers of being returned to an unsafe home with biological parents who are not truly ready to assume care of the child.” Pet‘r‘s Suppl. Br., Corrected J.A. at 9. At the time, those were not the interests currently at risk for E.H.
He had already been removed from his home, not by the State but by his mother because she needed to make arrangements for him and his siblings while she was incarcerated. The dependency petition was filed only after E.H. was abused and neglected by the family friends entrusted with his care. Although it took about eight months to find a suitable foster home for E.H., he had been living with his foster parents since January 2015, nearly two years before the motion to appoint counsel was considered. He remains there today, and the record reveals no concerns about the stability or safety of his current placement. And being returned prematurely to his mother‘s home (which the record does not indicate was unsafe in the first place) was not an available option at the time due to her incarceration.
Thus, the generalized interests recited by the trial court do not accurately reflect the individualized interests actually at risk for E.H. when his mother moved to appoint counsel for him. It is therefore not surprising that the court saw “no benefit to [E.H.] in appointing counsel at this juncture.” Id. at
In fact, there was an intolerably high risk that E.H. would be erroneously deprived of important protected interests when his mother moved to appoint counsel for him. E.H., like every child in Washington, has a protected statutory right “to be heard in his or her own behalf” and a protected liberty interest in maintaining relationships with his family.
2. E.H. has been erroneously deprived of his right to be heard
As discussed above, E.H. has the right to be heard in his own behalf.
Although E.H. cannot reunite with his mother right now, she is scheduled to be released in July 2019, when E.H. will still have almost half of his childhood ahead of him. In the meantime, he is in a stable placement with foster parents who are willing to serve as long-term guardians for him. He has maintained a close relationship with his mother, and she has made every possible effort to remain an important part of his life. The CASA acknowledges long-term guardianship would be a means of accomplishing E.H.‘s goal of reunification but still advocates for termination. An attorney who is not advocating for termination might be able to come up with other solutions as well.
“The paramount goal of child welfare legislation is to reunite the child with the legal parents if reasonably possible.” In re Parental Rights to K.J.B., 187 Wn.2d 592, 597, 387 P.3d 1072 (2017). This paramount goal remains in place, even where the parent is incarcerated. Id. at 598-99. E.H. thus has a clearly stated position favoring reunification, and there is no apparent reason why that outcome is not a reasonable possibility in accordance with the law of this state.
The trial court noted that the CASA, though “somewhat leery,” reported E.H.‘s stated position to the court in accordance with her statutory duty. Pet‘r‘s Suppl. Br., Corrected J.A. at 10; see
The CASA is required to represent and advocate for termination in order to comply with her statutory duties, but termination and reunification are mutually exclusive outcomes.
Once E.H. and the CASA diverged on their respective positions, there was no way for E.H. to exercise his right to be heard in his own behalf without appointed counsel. The trial court‘s ruling denying appointed counsel was therefore an erroneous deprivation of that right. I would reverse.
The lead opinion appears to agree, noting that “when a child old enough to voice a preference is rendered voiceless in the proceedings because [his or her] stated wishes are misaligned with [the CASA‘s] assessment of [the child‘s] best interests, appointment of counsel is likely proper.” Lead opinion at 16. That is precisely E.H.‘s situation. I therefore do not understand how the lead opinion can affirm the ruling denying counsel for him on a case-by-case basis. Id. at 24.
3. Without counsel, E.H. faces an unacceptably high risk of being erroneously deprived of his family relationships
E.H. also has a protected liberty interest in maintaining his relationships with his family. M.S.R., 174 Wn.2d at 15-16;
In E.H.‘s case, leaving open the possibility of appointing counsel when the State petitioned for termination of parental rights was not sufficient to diminish this risk. Contra lead opinion at 24. Dependency and termination proceedings do not deal with discrete events having isolated effects, but with the ongoing life, relationships, and well-being of the child and his or her family. Everything that happens in a dependency case can affect what happens in a subsequent termination case. And while not all dependencies lead to termination, for E.H., termination of parental rights was not, and is not, “merely potential or hypothetical.” E.S., 171 Wn.2d at 705. Reunification is supposed to be the goal of dependency proceedings.
Notably, while review was pending before this court, E.H.‘s mother filed an emergency motion to stay the trial court proceedings. The case was about to move to the termination stage, with the trial scheduled to begin in early June. The CASA opposed staying the proceedings, reflecting her position that termination is in E.H.‘s best interests. This court, however, granted the stay, recognizing that regardless of whether termination should ultimately be ordered, that decision cannot be made before this court has determined whether E.H. has been erroneously deprived of his right to appointed counsel.
In sum, because the trial court did not sufficiently account for the high risk that E.H. would be erroneously deprived of protected interests under the particular circumstances presented, I would reverse the ruling denying counsel.
CONCLUSION
I agree that the joint motion to seal should be granted, but I would hold that E.H. is entitled to appointed counsel in accordance with even the minimum standards set by the federal due process clause. These holdings would be sufficient to resolve the pending issues presented, so I dissent only in part.
However, as my analysis shows,
Yu, J.
González, J.
No. 94798-8
(consol. w/ 94970-1)
MADSEN, J. (concurring in dissent)—I agree with the lead opinion that the joint motion to seal should be granted. I write separately to agree with the dissent that E.H. is entitled to appointment of counsel under the standards set by the federal due process clause. I also agree with the dissent that this is sufficient to resolve the issues presented in this case. Accordingly, I concur in Part B of Justice Yu‘s dissent.
Madsen, J.