In re Dependency of E.H. , 427 P.3d 587 ( 2018 )

This opinion was filed for record
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FIITE
IN CLERKS OFFICE
RJPRraE CCUST. STATE OF WASHINSTOfl (3" H(2,.^
c-z_jDCLflUOI8 SUSAN L. CARLSON
SUPREME COURT CLERK
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter ofthe Dependency ofE.H.
a minor child. No. 94798-8
(consolidated with No. 94970-1)
En Banc
In the Matter ofthe Dependency of S.K.-P.,
a minor child. Filed OCX 0 4 2018
OWENS,J. — Dependency proceedings are not uniform, although each creates
a tension between the State's ability to protect children as parens patriae and the
fundamental familial rights ofthe people who are involved in the proceedings. In
some instances, such as when the parents agree to the dependency or when the State
does not assume legal or physical custody ofthe child, this tension will be lessened.
In other instances, where the dependency is contested or when the State assumes
custody of a child, the tension may be heightened. Accordingly, the amount of
process due to children in dependency proceedings will vary with each case.
The legislature gave children a discretionary right to counsel in dependency
proceedings in RCW 13.34.100(7)(a). The petitioners argue that our constitution
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
requires that all children be appointed counsel at all stages ofthe dependency
proceedings. For the following reasons, we find that RCW 13.34.100(7)(a) is
adequate under article I, section 3 ofthe Washington Constitution. Further, we find
that in this case the trial court did not abuse its discretion in denying a motion to
appoint counsel. Finally, in light of amendments to GR 15, we hold that confidential
juvenile court records remain sealed and confidential on appeal, recognizing the
abrogation ofIn re Dependency ofJ.B.S., 122 Wash. 2d 131, 856 P.2d 694(1993).
Accordingly, we grant the joint motion to seal.
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
ofRCW 13.34.100's discretionary standard for appointment of counsel for children in
dependency proceedings and seek instead a categorical right to counsel for all children
in dependency proceedings. We consolidated these cases to address that issue. R.R.,
S.K.-P., and the Department of Social and Health Services (Department)jointly
moved to seal the appellate records and to use the parents' and children's initials in
publicly filed documents. R.R. additionally challenges the juvenile court's denial of
her motion for counsel for E.H.
In re Dependency ofE.H.
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 ofthe 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 ofthis abuse as it was occurring.
In May 2014, the children moved into the home of another family friend, and
the Department filed a dependency petition. R.R. entered an agreed order of
dependency as to all six of her children in September 2014. E.H. was six years old
when the dependency petition was filed, and it took about eight months to find a
stable placement. E.H. and the siblings were placed in foster care in December 2014.
E.H. was sent to three respite placements over the course ofthree months. Finally, on
January 30, 2015, E.H. was placed in E.H.'s current foster home. E.H. has stated a
strong desire to stay in the current placement until R.R. can return from prison.
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
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 Wash. 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
ofthe 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
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 B.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 ofthe
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 ofS.K.-P.
In re Dependency ofS.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
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
GAL reported that S.K.-P. was having regular visitation with both parents. In
September 2015, the court ordered that S.K.-P.'s mother could resume providing care.
Five days later, through an attorney who appeared for the limited purpose ofthe
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." M 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
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 Wash. App. 86,92,401 P.3d 442(2017). On its own motion, the court
considered whether to dismiss the appeal as moot.
In light ofthis court's guidance in Sorenson v. City ofBellingham, 80 Wn.2d
547,496 P.2d 512(1972), the Court of Appeals deelined 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 ease by case basis. S.K.-P., 200
Wash. App. at 92. S.K.-P. filed a petition for review, which this court granted, and
consolidated with/w re Dependency ofE.H., 189 Wash. 2d 1030 (2017).
ISSUES
1. Is the mechanism for appointment of counsel for children contained
within RCW 13.34.100(7) sufficient to protect the due proeess rights of children in
dependency proceedings under article I, section 3 ofthe Washington Constitution?
2. Did the juvenile court abuse its discretion by denying the motion to
appoint counsel for E.H.?
3. Should the joint motion to seal the records ofthese consolidated cases be
granted?
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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.
RCW 13.34.100(7)(a). The court may also appoint an attorney on its own initiative.
Id. In 2012, this court addressed whether this discretionary right, along with the right
to appellate review, was sufficient under the United States Constitution's guaranty of
due process at termination proceedings. In re Dependency ofM.S.R., 174 Wash. 2d 1,
20, 271 P.3d 234(2012). We are now tasked with answering whether RCW
13.34.100(7)(a) is sufficient at the dependency stages and under the state
constitution's corollary provision.
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
Wash. 2d at 20 n.l 1 (declining to address state constitutional claims). This opinion turns
first to our recent state precedent holding that in similar contexts, article I, section 3
should not be interpreted independently of its federal counterpart before using the
Gunwall factors to support that conclusion.
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 Wash. 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 ofA. W., this court held that in the context of a
dependency guardianship proceeding,' "[t]he Washington Constitution, article I,
section 3, does not afford greater due process protection than the United States
Constitution." 182 Wash. 2d 689, 701-02, 344 P.3d 1186(2015). In^. 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.
'Dependency guardianships are statutory altematives to the termination of parental rights. In re
Guardianship ofD.S., 178 Wash. App. 681, 682, 317 P.3d 489(2013). They are one example of a
dependency proceeding (see JuCR 3.11). A.W. is a recent, well-reasoned, post-Gunwall
precedent where this court found that article I, section 3 should be interpreted consistent with its
federal counterpart in the specific context of dependency proceedings.
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
In 2012, this court addressed whether discretionary appointment of counsel for
children at termination hearings satisfied federal due process requirements. In re
Dependency ofM.S.R., 174 Wash. 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 1, section 3's independent protections, we could have
used our inherent authority to reach the issue (Alverado v. Wash. Pub. Power Supply
Sys., 111 Wash. 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 fmding that article 1, 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 ofthe 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.2dat58.
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No. 94798-8 (consolidated with No. 94970-1)
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 Wash. 2d 467, 480, 880 P.2d
517(1994); State v. Ortiz, 119 Wash. 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. RCW 4.08.050. Thus, the general rule in Washington has historically
been that children cannot appear in court as parties and must instead appear by and
through guardians. This 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.^
^ The dissent cites In re Dependency ofJ.H, 117 Wash. 2d 460, All, 815 P.2d 1380(1991)in
support ofthe proposition that children are parties in dependency proceedings. Dissent at 15.
This court's statement that the "[IJegislature has determined that children involved in
dependency and termination actions are parties to those actions" was dicta and supported by a
citation to RCW 13.34.100. J.H., 117 Wash. 2d at 477. When 7//. was published, RCW 13.34.100
stated in part that "[t]he court, at any stage of a proceeding under this chapter, may appoint an
attomey and/or guardian ad litem for a child who is a party to the proceedings...." Former
RCW 13.34.100(1979)(emphasis added). That statute was amended in 1993, after 7/7. was
published, and the above italicized portion was removed. RCW 13.34.100(1993). See Laura
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In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
The fifth factor, structural differences between the state and federal
constitution, supports independent interpretation ofthe 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 Wash. 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 Wash. 2d at 701-02.
B. Federal Guidance Supports a Case-bv-Case Approach
The purpose ofthe test set forth in Gunwall is to determine when and to what
extent'"[fjederal precedent in areas addressed by similar provisions in our state
Baird, Note, An Inconsistent Invitation: Am IInvited To Be a Party? How Not Affording Party
Status to Youth in Washington Dependency Hearings Can Be a Violation ofDue Process, 11
Seattle J. For Soc. Just. 715 (2013). This opinion does not take any position on whether
children are parties in dependency proceedings and notes the incapacity of infancy only to
support the conclusion that preexisting state law regarding appointment of attorneys for children
is not more protective than federal law.
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In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
constitutions can be meaningful and instructive.'" Gunwall, 106 Wash. 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 ofSoc. 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
ease, 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 offactors 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
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In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
formal rules of evidence are in force, that there are a number of procedural rights that
may be waived by a criminal defendant if not timely raised, and that communicating
arguments to untrained jurors may be aided by the assistance of counsel. Id. In
probation revocation hearings, the State is represented not by a prosecutor but by a
parole officer, who has a dual interest in rehabilitation and protecting the public from
recidivism. Id. Likewise, evidentiary and procedural rules are relaxed in probation
proceedings. Id. Finally, the members ofthe hearing board, the ultimate decision-
makers,"are familiar with the problems and practice" ofthe system. Id. at 789.
Because ofthese differences, the Court held that "[t]he need for counsel at
revocation hearings derives, not from the invariable attributes ofthose 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
ofthe 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
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In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
dependency hearing is to serve and protect the best interests ofthe child, and that
purpose makes those hearings orthogonal to truly adversarial proceedings.
Furthermore, the State is not always a party, let alone represented by coimsel.
Dependency petitions may be brought by "[a]ny person." RCW 13.34.040(1). Family
members can petition a court to find a child dependent in order to be granted
guardianship over the child. Juveniles themselves may initiate dependency actions in
order to gain a predicate order to obtain special juvenile immigrant status and the
resulting relieffrom removability. 8U.S.C. § 1101(a)(27)(J). When a private party
initiates a dependency petition, the Department is not involved, and, as in Gagnon,
there is not an asymmetry of representation. Similarly, the rules of evidence do not
necessarily apply in dependency proceedings. See JuCR 1.4; ER 1101(c)(3)(evidence
rules inapplicable in disposition, review, and permanency planning hearings). And, as
in probation revocation hearings, the decision-maker in dependency hearings is not a
jury in need of explanation, but a judicial officer who is familiar with the system.
Accordingly, as in Gagnon, a case-by-case system for appointment of counsel in
dependency proceedings is more appropriate than a categorical approach.
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
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In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
ofthe deprivation of liberty are complex or otherwise difficult to develop or present,
and when the person requesting cotmsel is not capable of speaking effectively for
himself or herself. Id. at 790-91. In addition to the age and custodial status ofthe
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 Wash. 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.
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In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
Lassiter, 452 U.S. at 27. The source ofthat 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.^ 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 Wash. 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 RCW 13.34.100(7)(a)'s constitutionality under
either is largely the same.
^ The continued viability of the state constitutional analysis ofIn re Welfare ofMyricks, 85
Wash. 2d 252, 255, 533 P.2d 841 (1975) and/« re Welfare ofLuscier, 84 Wash. 2d 135, 138, 524 P.2d
906(1974)is not presented in this ease, nor is it questioned by this opinion. Both of those cases
predated both Gunwall and Mathews. The contemporary analysis used to determine what
protections article I, section 3 provides is different from the analysis employed in those opinions.
Those opinions have stood for 40 years, and stare decisis protects their holdings.
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In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 Wash. 2d at 717
(Chambers, J., dissenting)("Nevertheless, the balancing test adopted by the United
States Supreme Court mMathews 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]ovemment'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 Wash. 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.
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In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 due to the abuse or neglect of one
parent under RCW 13.34.030(6)(b) but remains in the legal and physical custody of
the other parent, the child's interests will be very low. Likewise, even if a child is
found dependent with regard to both parents, the statutory preference for placement is
with relatives. RCW 13.34.060(2), .138(2)(c)(viii). Thus, in many instances, the
State does not assume custody of the child and does not make important decisions
about placement, medical care, or education.
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
19
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
occur in the dependency setting only when the State abridges a child's liberty based
on an erroneous determination ofthe best interest ofthat 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 RCW 13.34.100
that would grant a categorical right of counsel to all children in dependency
proceedings).
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
20
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 article I, section 3 ofthe
Washington Constitution. However, we emphasize that in many instances due
process might require appointment of counsel, and that trial courts should address the
issue of appointment of counsel on the record at as early a time as is practicable, to
preserve the right of appeal.
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 exhaustive list, courts should consider at least the age of
the child, whether the child is in legal or physical custody ofthe State, whether the
child's stated interests are aligned with the GAL's assessment ofthe child's best
21
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
interest (if a GAL has been appointed) or with another represented party's desires,
whether the child disputes the facts that form a basis for the dependency
determination, whether the child presents a complex argument against the State's
proposed action, and the issues that are actually disputed or to be addressed in the
hearing.
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 ofthe motion for appointment of counsel for E.H. in that case."^ 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 oflaw and fact.
As such, the standard ofreview typically "depends—on whether answering it entails
primarily legal or factual work." U.S. BankNat'lAss'n v. Vill. atLakeridge, LLC,
^U.S. , 138 S. Ct. 960, 967,200 L. Ed. 2d 218(2018). The constitutional nature
ofthe 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
The dissent purports to dissent only in part, as it relates to E.H.'s as applied challenge. Dissent
at 30. In actuality, the dissent presents a facial challenge to RCW 13.34.ICG's discretionary
appointment mechanism and seeks its invalidation categorically for all children in dependency
proceedings. Dissent at 2-22.
22
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 ofthe "specific circumstances ... at the time the motion for
appointed counsel [wa]s made." Dissent at 23 (citingM.S.R., 174 Wash. 2d at 22 n.l3).
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 ofthat placement. Thus, the interest at risk ofbeing 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
23
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
E.H.'s interest in visits. The trial court identified the exemplary performance ofthe
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 misaligmnent between E.H. and E.H.'s CASA regarding visitation, and
thus the risk of an erroneous deprivation ofthat 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 only
issue being addressed at that time. Everyone present agreed that sibling visitation was
appropriate. Thus, the denial of that motion for appointment of counsel, brought at
that time, was not error.
The commissioner noted that if the Department moved to terminated 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 ofthose proceedings pending
the publication of this decision. Once that stay is lifted, the trial court should
24
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
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 ofthe children and parents involved in these disputes. A commissioner ofthe
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 oiJ.B.S., 122 Wash. 2d at 137-38.
ROW 13.50.100 provides that records ofjuvenile court hearings not relating to
juvenile offenses "shall be confidential" and proscribes limited instances in which
they may be released. RCW 13.50.100(2). In 1993, this court held that the
requirement of confidentiality contained in RCW 13.50.100 does not apply to
appellate court proceedings based on the definition of"court" contained elsewhere
within the Juvenile Court Act. 122 Wash. 2d at 135. Thus, this court found that a
GR 15 motion to seal is required to seal such records. /J. at 137. It directed lower
courts to use the Ishikawa factors when determining whether to grant such a motion
25
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
but, resolving the matter on statutory interpretation grounds, did not reach the
constitutional question of whether article I, section 10 applies to juvenile records. See
id. at 137-38; Seattle Times Co. v. Ishikawa, 97 Wash. 2d 30, 38,640 P.2d 716(1982).
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, article I, section 10 does not apply to juvenile records. See
State V. S.J.C., 183 Wash. 2d 408, 352 P.3d 749(2015).
In 1997, GR 15 was amended to include what is now GR 15(g):"Use of Sealed
Records on Appeal." See In re Dependency ofG.A.R., 137 Wash. App. 1, 13, 150 P.3d
643 (2007). That provision provides that "[cjourt records sealed in the trial court shall
be sealed from public access in the appellate court subject to further order ofthe
appellate court." GR 15(g). As the Court of Appeals in G.A.R. held, GR 15(g)
preserves the confidentiality ofjuvenile court files and records. G.A.R., 137 Wash. App.
at 13. This new provision partially abrogated J.B.S. to the extent that our opinion in
that ease held that confidential trial records are unsealed on appeal. Accordingly,
records that are confidential under RCW 13.50.100(2) remain confidential on appeal,
subject to the exceptions provided in RCW 13.50.100 and RCW 13.50.010. Such
records should be sealed from public access without need for a party to bring a GR 15
motion to seal.
26
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
CONCLUSION
Under both the state and federal constitutions, the discretionary standard for
appointment of counsel in ROW 13.34.100(7Xa) provides children with sufficient due
process protection, provided that juvenile courts apply the Mathews factors on the
record at an early practicable time and without a presumption against appointment of
counsel. Review of a juvenile court's denial of appointed counsel should be
performed de novo, with due deference given to findings offact made by the juvenile
court in the first instance. We are confident iu the ability of trial judges to perform
this function, as the Mathews test is familiar to judges and has proved capable of
protecting procedural due process for decades. On review ofthe record, we affirm the
denial of R.R.'s motion for an attorney for E.H.
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
122 Wash. 2d 135, by the promulgation of GR 15(g), we hold that the
confidential nature of dependency proceedings granted by RCW 13.50.100(2) is not
lost through appeal. Accordingly, courts of appeal should sua sponte seal the records
and appendices of such proceedings, except as provided for in RCW 13.50.100 and
RCW 13.50.010.
27
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)
7^
WE CONCUR:
. CC\ .
28
In re Dependency ofE.H and S.K.-P.
(Stephens, J., concurring in part and dissenting in part)
94798-8
STEPHENS,J.(concurring in part, dissenting in part)—join the lead opinion
in all respects save for its resolution ofthe parties' motion to seal the record. I agree
with Justice Gordon McCloud's partial dissent that the motion to seal should be
denied under article I, section 10 ofthe Washington State Constitution.
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)
No. 94798-8
GORDON McCLOUD,J.(concurring in part and dissenting in part)—I agree
with the lead opinion that both RCW 13.34.700(7)(a) and the due process clause of
the Washington Constitution provide a child with the right to counsel in dependency
proceedings in certain circumstances. WASH.CONST, art. I, § 3.1 write separately for
two reasons:(1)to highlight the fact that all members of this court now agree that a
trial court must consider certain key factors before making that decision about
appointment of counsel,see lead opinion at 21; dissent at 20, and(2)to dissent from
the decision to seal the records of all dependency cases from public view, even on
appeal.
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
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)
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 Wash. 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 article I, section 10 of the Washington Constitution to the contrary. Lead opinion
at 25-26. However, article I, section 10 does indeed say something to the contrary:
it provides that "[ijustice in all cases shall be administered openly." Wash. Const.
art. I, § 10. It does not have an exemption for cases involving juveniles (or adults)
in dependency proceedings.
The lead and dissenting opinions reason that S.J.C. already held that article I,
section 10—despite its clear and categorical ("all cases")language—does not apply
to the dependency proceedings at issue in this case.
I respectfully disagree.SJ.C. addressed one issue, and it concerned the sealing
of dispositions in juvenile criminal cases—^not dependency cases. As the
introduction to the opinion in that case clearly stated, the question before the court
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)
was "whether article I, section 10 ofthe Washington Constitution requires the court
to apply the Ishikawd" factors when a former juvenile offender has satisfied the
statutory requirements of former RCW 13.50.050 (2011) to seal his or her juvenile
court record." S.J.C., 183 Wash. 2d at 411 (footnote omitted).
To be sure, I disagreed with the decision in that case to exempt juvenile
criminal proceedings from that constitutional protection. S.J.C., 183 Wash. 2d at 435
(Stephens, J., dissenting). But I do not rest my assessment ofthe 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 Wash. 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 at435 (Stephens, J., dissenting); next.
Seattle Times Co. v. Ishikawa, 97 Wash. 2d 30, 37-39, 640 P.2d 716 (1982).
3
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)
certain therapeutic courts, State v. Sykes, 182 Wash. 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.
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
No. 94798-8
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 Wash. 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 ofS.K.-P., 200 Wash. App. 86, 92,401 P.3d 442, review granted, 189
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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 article I, section 3 has no independent meaning in this context and, therefore,
provides no protections beyond the minimum required by the Fourteenth
Amendment. WASH. CONST, art. I, § 3; U.S. CONST, amend XIV. It is clear from
our cases and statutes that all children in dependency cases are continuously at risk
of being erroneously deprived oftheir most fundamental rights. It has also been
repeatedly shown that an attorney representing the child's position dramatically
decreases that risk. It is apparent, however, that our current discretionary approach
to appointing counsel for children in dependency cases has failed to protect
children's state due proeess rights.
ANALYSIS
A. The discretionary, case-by-case approach to appointing counsel for children
in dependency cases violates the Washington Constitution
All ehildren in dependeney 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. RCW 13.34.090(1). As
In re Dependency ofE.H. & S.K.-P.,'Ho. 94798-8
(Yu, J., dissenting in part)
clearly recognized by our legislature's provision that an attorney may be appointed
to represent the child's position, we cannot assume the child's interests will be
aligned with the State's in any case. RCW 13.34.100(7)(a). However, the
unguided discretion that trial courts currently have in appointing counsel allows for
inconsistent practices that leave many children with no voice and no one to
advocate for their rights. This arrangement does not satisfy the heightened due
process protections provided in this context by article I, section 3.
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 ofthe state constitutional provision and its
prior interpretations actually compel a particular result.'" State v. Pugh, 167
Wash. 2d 825, 835, 225 P.3d 892(2009)(internal quotation marks omitted)(quoting
State V. Chenoweth, 160 Wash. 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 Wash. 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 Gunwalf factors and
'State V. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986)
In re Dependency ofE.H. & S.K.-P.,E^o. 94798-8
(Yu, J., dissenting in part)
recent precedent lead me to conclude that article I, section 3 is more protective
than the Fourteenth Amendment.
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 article I, section 3, while the fifth and sixth factors do. Lead
opinion at 10-12. However, I would hold that the fourth factor (preexisting state
law) does support an independent interpretation, leaving the nonexclusive Gunwall
factors evenly split.
In evaluating preexisting state law, we must "consider the degree of
protection that Washington State has historically given in similar situations."
Grant County Fire Prat. Dist. No: 5 v. City ofMoses Lake, 150 Wash. 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
In re Dependency ofE.H. & S.K.-P.,'Ho. 9A19%-?i
(Yu, J., dissenting in part)
the laws of the States and not to the laws ofthe United States.'" Rose v. Rose, 481
U.S. 619, 625, 107 S. Ct. 2029,95 L. Ed. 2d 599(1987)(quoting/,p2 reBurrus, 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
particular right at issue. Gunwall, 106 Wash. 2d at 61-62. A provision that a child
shall appear through a representative is unquestionably more protective of a child's
right to representation than no provision at all.
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 ofL.B.,
155 Wash. 2d 679, 696-97, 122 P.3d 161 (2005){citmgBorenbackv. Borenback, 34
Wash. 2d 172, 208 P.2d 635 (1949)(citing Allen v. Allen, 28 Wash. 2d 219, 182 P.2d 23
(1947); Mitchell v. Mitchell, 24 Wash. 2d 701, 166 P.2d 938(1946); Lindblom v.
In re Dependency ofE.K & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
Lindblom, 22 Wash. 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 Wash. 2d at
66. Most notably, for federal purposes,"[njearly everyone would identify 1967 as
the most important year in the history of counsel for children in the United States."
Martin Guggenheim, Reconsidering the Needfor Counselfor Children in Custody,
Visitation and Child Protection Proceedings, 29 LOY. U. CHI. L.J. 299, 301 (1998).
By that time,"[m]ost ofthe practices prescribed by the Supreme Court were
already in place in Washington." S.J.C., 183 Wash. 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.
"[TJhis court has been zealous in its protection of familial relationships," and the
legislature has consistently and repeatedly built on earlier law to increase
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
procedural protections for children's representation in family law cases. In re
Dependency ofM.S.R., 174 Wash. 2d 1, 15-16, 271 P.3d 234(2012). The substance
and direction ofthis recent law show that article I, section 3 of the Washington
Constitution provides more protection than the Fourteenth Amendment in this
context.
Over 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 Wash. 2d 142, 147, 702 P.2d
1179(1985)(quoting Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wash. 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 ofJ.H., 117 Wash. 2d 460, 477, 815 P.2d 1380
(1991)(emphasis added)(footnotes omitted).^ And in 2005, we strongly urged
^ I do not cite J.H. in connection to the fourth Gunwall factor or in relation to the issue,
not presented here, of whether a child is a party in some technical sense. Contra lead opinion at
11 n.2. I cite it as recent precedent indicating a consistent trend of providing growing protections
for a child's right to representation in family law cases. The legislative amendment referred to
by the lead opinion is irrelevant to this purpose, as it merely changed the phrase "a child who is a
party to the proceedings" to "a child who is the subjeet of an action." Laws of 1993, ch. 241,
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
trial courts "to consider the interests of children in dependency, parentage,
visitation, custody, and support proceedings, and whether appointing counsel, in
addition to and separatefrom the appointment of a [guardian ad litem], to act on
their behalf and represent their interests would be appropriate and in the interests
ofjustice." 1.5., 155 Wash. 2d at 712 n.29(emphasis added). Relevant recent
precedent thus recognizes significant, consistently growing procedural protections
for children's representation in dependency and similar family law cases.
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, eh. 180, § 2; Laws of 2014, ch. 108, § 2. By
comparison. Congress has enacted only "a limited statutory right of representation
§ 2(1). There is no indication that this amendment was intended to limit a child's right to
representation, and I do not see how it could do so.
8
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
(though not necessarily by attorney)... as a condition for receiving federal funds."
M.S.R., 174 Wash. 2d at 14 n.7 (citing.42 U.S.C. §§ 5101-5107).
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 Wash. 2d 695\In re Welfare ofA.W., 182 Wash. 2d 689, 344 P.3d 1186
{20\5)-M.S.R., 174 Wash. 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 Wash. 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 proofin a dependency
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
guardianship. 182 Wash. 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.l6. 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
Wash. 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 proofthat 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 article I, section 3 is more protective than
the Fourteenth Amendment of a child's right to representation in a dependency
case. And because I would analyze Washington's due process clause
10
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
independently in this context, the assertion that for federal due process purposes, a
child in a dependency case is similarly situated to an adult in a probation
revocation hearing is irrelevant. See lead opinion at 13-16 (discussing Gagnon v.
ScarpelU, 411 U.S. 778,93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). I simply note
that such a comparison is entirely inappropriate as a matter of fact, and as a matter
of law, it is contrary to our precedent's explicit guidance that "context matters."
E.S., 171 Wn.2dat711.
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
Wash. 2d 230, 238, 635 P.2d 108 (1981)(quoting The FEDERALIST No. 51, at 339(A.
Hamilton or J. Madison)(Modem Library ed., 1937)). The lead opinion effects
just such a deprivation here.
11
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
I would hold that in light ofthe 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
article I, section 3.
Every dependency case implicates the protected interests and statutory rights
of every child involved. M.S.R., 174 Wash. 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 ofthe 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.
12
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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 ofthe 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.
Inre Custody ofShields, 157 Wash. 2d 126, 152, 136 P.3d 117(2006)(Bridge, J.,
concuiTing)(alterations in original)(citations and quotation marks omitted)
(quoting iSmfr/z v. Org. ofFoster Familiesfor 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 Wash. 2d at 20.
However, damage to family relationships is only one ofthe many risks
children in dependency cases face. Unlike a parent, a child in a dependency case
may be "physically removed from the parent's home." Id. at 16. Regardless of
whether the child is placed with relatives or in the care of the State, removal has
13
In re Dependency ofE.H. & S.K.-P.,^o. 94798-8
(Yu, J., dissenting in part)
enormous consequences for every aspect ofthe child's life. "Children who are
removed from their parents' care face a loss of physical liberty and may be forced
to change homes, schools, and care facilities. Such movement may cause children
significant harm." In re Dependency of,Lee, 200 Wash. App. 414, 450, 404 P.3d 575
(2017), review denied, 190 Wn.2d 1006,415 P.3d 99(2018).
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 Wash. 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 Wash. 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." RCW 13.34.090(1). This
right is not merely my view ofthe best policy or a nicety that may be offered to
14
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
"increase the children's comfort and agency in the courtroom," Lead opinion at
20. It is the legislature's declaration, consistent with this court's decisions, that a
child in a dependency case has the "right to fully participate in all proceedings."
J.H., 117 Wn.2d at All (citing RCW 13.34.090,.100; JuCR 9.2(b)(1)). This is
crucial because "[w]hen adjudicating the 'best interests of the child,' we must in
fact remain centrally focused on those whose interests with which we are
concerned, recognizing that not only are they often the most vulnerable, but also
powerless and voiceless." L.B., 155 Wash. 2d at 713 n.29.
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 oftheir 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.
15
In re Dependency ofE.H & S.K.-P.,I^o. 94798-8
(Yu, J., dissenting in part)
Const.L.& Pub.Pol'Y 179, 212(2016). Such misunderstandings create an
extremely high risk that unrepresented children in dependency cases will be
deprived oftheir 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 counsel will be appointed in all
(or even most)cases where it is necessary to protect the child's rights.
It has been empirically shown that children who are not represented by
attorneys are routinely erroneously deprived oftheir 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).
16
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
Amicus Curiae Br, of Legal Counsel for Youth & Children at 13. All children
have the right to be placed with people they know instead ofthe foster care system
where possible. RCW 13.34.130(5). But whether that right is actually protected
varies, depending on whether the child has an attorney.
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-eontent/uploads/2017/01/UW-
Study-2016-Defending-Our-Children.pdf[https://perma.cc/5KUG-Z8L6]). Ifthe
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.
17
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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 ofthe
child." M.S.R., 174 Wn.2d at21. Instead, their statutorily mandated role is "[t]o
represent and be an advocate for the best interests ofthe child." RCW
13.34.105(l)(f). In some cases, the child's stated position might align with the
State's view ofthe child's best interests, but in many cases, their positions will
diverge. "[CJourtroom observers recently found that CASA[]s and GAL[]s 'only
presented arguments to support the child's position 30 [percent] of the time.'"
Amici Curiae Br. of CCYJ at 13 (quoting Defending Our Children at 22). This is a
disturbingly low figure and may still underestimate how often the child's position
goes unrepresented because without an attorney to act as the child's confidential
counselor, it can be more difficult to ascertain what the child's position actually is.
"Unlike GALs or CASAs,lawyers maintain confidential communications,
which are privileged in court." M.S.R., 171 Wash. 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."
RCW 13.34.105(l)(b).
18
In re Dependency ofE.H & 5.AT.-P., No. 94798-8
(Yu, J., dissenting in part)
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 Wash. App.
at 110; State Dep't of Soc. & Health Sei-vs. 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 position and
mandatory appointment of a CASA or GAL to "report" it. RCW 13.34.100(7)(a),
.105(l)(b).
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
19
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
child's expressed preferences differ from the GAL's or CASA's assessment ofthe
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 RCW 13.34.100(7)(a), the legislature's
intent was to ensure that counsel would be appointed where needed to represent the
child's position. The legislature has also attempted to increase the likelihood of
appointed eounsel by requiring the State and the GAL or CASA to notify all
children who are at least 12 years old that they have a right to request counsel.
20
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
RCW 13.34.100(7)(c). However, Washington courts have not consistently
honored the legislature's intent. In practice, courts may deny counsel on the basis
that there are no "extreme circumstances" or "simply eonclude[]that the parents
themselves were sufficient to perform the services ofindependent counsel."
Clerk's Papers at 329; Lee, 200 Wash. App. at 450. Children deserve more careful
consideration of their protected rights, and they are entitled to it in accordance with
article I, section 3 ofthe Washington Constitution.
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 ofthe child and in 'an accurate and just decision.'"
M.S.R., 174 Wash. 2d at 18 (quoting Lassiter v. Dep't ofSoc. 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
21
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
the State has is saving money, but "[fjinancial 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).
Considering the interests at stake and the high risk of erroneous deprivation
under the current system, it is apparent that the Washington Constitution demands
what the majority of states already provide: every child in a dependency or
termination case who cannot afford a private attorney is presumptively entitled to
appointed counsel. Children's Advocacy Inst.& First Star, A Child's Right
TO Counsel: A National Report Card on Legal Representation for Abused
& Neglected Children 10(3d ed. 2012)[https://perma.ccAf6BD-DDVA]; Am.
Amicus Curiae Br. of Children's Rights, Inc., et al. at 19.
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
article I, section 3,1 would hold that E.H. is entitled to appointed counsel on a
case-by-case basis even under the minimal protections of the federal constitution. I
would therefore reverse and remand for counsel to be appointed for E.H.
The Fourteenth Amendment does not categorically require appointment of
counsel for all children in dependency cases. M.S.R., 174 Wash. 2d at 22. However,
22
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
children do have the right to a thoughtful analysis oftheir "individual and likely
unique circumstances" when courts are deciding whether to appoint counsel on a
case-by-case basis. Id. This analysis requires courts to consider carefully the
specific context ofthe individual case to determine whether '"the particular
situation demands'" appointment of counsel. Mathews,424 U.S. at 334(quoting
Morrissey v. Brewer,408 U.S. 471,481,92 S. Ct. 2593, 33 L. Ed. 2d 484(1972)).
E.H.'s particular situation demands that an attorney be appointed to represent him
and to advocate for his position.
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 Wash. 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
23
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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 10. At that time,
there was no risk that E.H. would be erroneously deprived of the interests that the
court recognized. And contrary to the lead opinion's view, the fact that the motion
to appoint counsel was initially heard by a commissioner at a review hearing where
24
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
visitation was also at issue does not mean that visitation was the only interest at
risk for E.H.^ Lead opinion at 23-24. E.H.'s mother did not move to appoint
counsel for that specific review hearing; she moved to appoint counsel for E.H. in
all of the proceedings going forward.
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. RCW 13.34.090(1); M.S.R., 174 Wash. 2d
at 15-16. E.H. has already been erroneously deprived ofthe former, and the latter
was, and still is, at risk of erroneous deprivation, a risk that continues to increase
over time.
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. RCW
13.34.090(1). This unambiguous statutory right gives rise to a protected liberty
interest, and under the particular circumstances presented, E.H. has been
erroneously deprived of it. At the time of the motion for appointed counsel, the
^ The decision of the superior court commissioner is not before us. Contra lead opinion
at 24. The motion to appoint counsel was decided by a superior courtjudge following a motion
to revise the commissioner's decision. Id. at 4. In a motion for revision, ajudge reviews a
commissioner's decision de novo, and appellate courts review only the judge's decision.
Faciszewski v. Brown, 187 Wash. 2d 308, 313 n.2, 386 P.3d 711 (2016).
25
In re Dependency ofE.H. & S.K.-P.,I:Io. 94798-8
(Yu, J., dissenting in part)
risk of erroneous deprivation was very high because E.H.'s position was(and
remains) directly at odds with the position of his CASA and the State: E.H. wants
to reunite with his mother, while the CASA and the State argue that termination of
parental rights is in his best interests. When the court denied appointed counsel,
that high risk became a certainty, and E.H. was erroneously deprived of his right to
be heard.
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 187
Wash. 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
26
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
position favoring reunification, and there is no apparent reason why that outcome
is not a reasonable possibility in accordance with the law ofthis 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 RCW 13.34.105(1)(b). However, the position
ofthe State and the CASA,that termination is in E.H.'s best interests, directly
conflicts with E.H.'s stated desire to reunite with his family.
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. RCW 13.34.105(l)(f). No one could possibly advocate for
both at the same time. The CASA's assessment of E.H.'s best interests therefore
make it impossible for her to represent his position. As discussed above, reporting
a child's position while strongly advocating against it does nothing to protect a
child's right to be heard. And in E.H.'s case, the CASA has an attorney to
represent and advocate for her position. E.H., who has far more at stake in this
case than the CASA ever will, does not.
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.
27
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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 Wash. 2d at 15-16; RCW 13.34.020. This includes visitation
with his siblings as well as his mother because "familial bonds stem notjust from
biology, but also from the intimacies of daily association." Shields, 157 Wn.2d at
152(Bridge, J., concurring). At the time the trial court denied appointed counsel,
E.H. faced a high risk of being erroneously deprived of his protected interest in his
family relationships.
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 ofthe child and his or her family. Everything that
28
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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
Wash. 2d at 705. Reunification is supposed to be the goal of dependency
proceedings. RCW 13.34.020; 187 Wash. 2d at 597. However,the CASA
was already recommending termination as the most appropriate outcome when the
trial court denied the motion to appoint counsel. The possibility of termination has
steadily increased since then.
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.
29
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)
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, article I, section 3 of the Washington
Constitution is more protective of a child's right to representation in dependency
cases than the Fourteenth Amendment, and our current system of appointing
counsel on a discretionary, case-by-case basis is failing to adequately protect the
rights of children in dependency cases as a matter of Washington law.
30
In re Dependency ofE.H. & S.K.-F., No. 94798-8
(Yu, J., dissenting in part)
31
In the Matter ofthe Dependency ofE.H. tSc S.K.-P.
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.