In re Dependency S.K-P.

• Decision Date: 08 August 2017
• Docket Number: No. 48299-1-II.,48299-1-II.
• Citation: 401 P.3d 442,200 Wash.App. 86
• Parties: In the MATTER OF the DEPENDENCY OF S.K-P.
• Court: Washington Court of Appeals

200 Wash.App. 86

401 P.3d 442

In the MATTER OF the DEPENDENCY OF S.K-P.

No. 48299-1-II.

Court of Appeals of Washington, Division 2.

August 8, 2017

Hillary Adele Madsen, Columbia Legal Services, 101 Yesler Way, Ste. 300, Seattle, WA, 98104-2528, Candelaria Murillo, Columbia Legal Services, 7103 W. Clearwater Ave., Ste. C, Kennewick, WA, 99336-1713, for Petitioner.

Bailey Elizabeth Zydek, Wildwood Legal, PS, 622 Tacoma Ave. S., Ste. 1, Tacoma, WA, 98402-2335, Fred Thorne, Fred E. Thorne, P.S. Inc., 1008 Yakima Ave., Ste. 202, Tacoma, WA, 98405-4850, Brian G. Ward, Attorney General's Office, Tacoma, P.O. Box 2317, Tacoma, WA, 98401-2317, for Respondent.

Alicia Marie Burton, Pierce County Prosecutor's Office, 955 Tacoma Ave. S., Ste. 301, Tacoma, WA, 98402-2160, for Respondent Intervenor.

Joyce Lida Frost-Wolf, Office of Disability Adjudication and Review, 2440 Tulare St., Ste. 300, Fresno, CA, 93721-2292, for Guardian Ad Litem.

Jared Van Kirk, Garvey Schubert Barer, 1191 2nd Ave., Ste. 1800, Seattle, WA, 98101-2939, Victoria M. Slade, Garvey Schubert Barer, 1191 2nd Ave., Fl. 18, Seattle, WA, 98101-2996, as Amicus Curiae on behalf of Mockingbird Society.

Jessica Levin, Seattle University School of Law, 901 12th Ave., Korematsu Center for Law & Equality, Seattle, WA, 98122-4411, as Amicus Curiae on behalf of Fred T. Korematsu Center for Law and Equality.

Deborah Perluss, Northwest Justice Project 401 2nd Ave. S., Ste. 407, Seattle, WA, 98104-3811, as Amicus Curiae on behalf of Northwest Justice Project.

Robin Allister Romanovich, Legal Counsel for Youth and Children, P.O. Box 16083, Seattle, WA, 98116-0083, as Amicus Curiae on behalf of Legal Counsel for Youth and Children.

Jared Van Kirk, Garvey Schubert Barer, 1191 2nd Ave., Ste. 1800, Seattle, WA, 98101-2939, Victoria M. Slade, Garvey Schubert Barer, 1191 2nd Ave., Fl. 18, Seattle, WA, 98101-2996, as Amicus Curiae on behalf of Center for Children & Youth Justice.

Bonnie Alison Linville, TeamChild 32 N. 3rd St., Ste. 410, Yakima, WA, 98901-2789, as Amicus Curiae on behalf of TeamChild.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of Children's Rights, Inc.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of Juvenile Law Center.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of National Association of Counsel for Children.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of Michael J. Prof Dale.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of Nova Southeastern University Law Center.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of First Star Institute.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of Lawyers for Children.

Laura Kristine Clinton, Baker & McKenzie LLP, 2212 Queen Anne N., # 156, Seattle, WA, 98109-2312, as Amicus Curiae on behalf of Washington Defender Association.

Worswick, P.J.¶1 SK-P asks us to determine (1) whether children in dependency proceedings have a categorical procedural due process right to court-appointed counsel under article I, section 3 of the Washington Constitution and the Fourteenth Amendment to the United States Constitution, and (2) if not, whether a case-by-case application of the Mathews¹ balancing test is appropriate to evaluate a dependent child's request for the appointment of counsel. We hold that children in dependency proceedings do not have a categorical due process right to court-appointed counsel and that juvenile courts should use the Mathews balancing test when evaluating a dependent juvenile's request for court-appointed counsel. We affirm.

FACTS

I. PROCEDURAL FACTS

¶2 SK-P entered foster care when she was seven years old. During her dependency proceedings, SK-P requested legal representation, and Pierce County intervened for the limited purpose of opposing SK-P's request for the appointment of counsel based on Pierce County's financial interests. The juvenile court denied SK-P's request after applying the Mathews test. SK-P sought, and we granted, discretionary review.

¶3 The same day we granted review, the Department of Social and Health Services (the Department) dismissed SK-P's dependency. Although this appeal is moot due to the dependency's dismissal, it involves matters of continuing and substantial public interest. We agreed to review two issues: first, whether the Washington Constitution mandates the appointment of counsel for all children in dependency proceedings; and second, if children do not have a categorical right to court-appointed counsel in dependency proceedings, whether the juvenile court should apply the Mathews test when evaluating a dependent child's request for court-appointed counsel.² Ruling Den. Court-Initiated Mot. to Dismiss, In re Dependency of S.K-P. , No. 48299-1-II, at 3 (Wash. Ct. App. May 25, 2016).

II. DEPENDENCY PROCEEDINGS GENERALLY

¶4 When the Department receives a report that a child is alleged to have been abused, neglected, or abandoned it is required to investigate. RCW 26.44.050. If the Department determines that the "child's health, safety, and welfare will be seriously endangered if [he or she is] not taken into custody" and there is potential "imminent harm" to the child, the Department may take the child into protective custody under RCW 13.34.050. If the child is taken into protective custody, the Department then files a petition for dependency of the child. WAC 388-15-041. The juvenile court is required to hold a shelter care hearing within 72 hours to determine whether, under the Department's petition, it is in the "best interests of the child" to return home or remain in state custody. RCW 13.34.065(1)(a).

¶5 At the initial shelter care hearing, the juvenile court determines the child's placement and whether the child can be safely returned home in an in-home placement conditionedon certain services being provided to the child and parent or in an out-of-home placement with a suitable relative, guardian, or foster care provider. RCW 13.34.065(4). A child who has been removed from his or her home has a right to preferential placement with a relative or known suitable adult. RCW 13.34.130(5). The court also determines the nature of any contact the child may have with his or her parents and siblings under RCW 13.34.065(5)(a).

¶6 If a parent contests whether a child is "dependent," the juvenile court must hold an evidentiary "fact-finding hearing" to determine whether a continued dependency is warranted. RCW 13.34.110. At the hearing, the State bears the burden of establishing by a preponderance of the evidence that the child meets one of the statutory definitions of dependency.³ In re Dependency of Schermer , 161 Wash.2d 927, 942, 169 P.3d 452 (2007).

¶7 If the court finds the child to be dependent, it must enter an order determining, among other things, placement of the child, visitation with parents and siblings, the school the child will attend, and a plan for services tailored to correct any identified parental deficiencies. RCW 13.34.130. Typically, the juvenile court also determines the needs of the child, the parents' ability to meet those needs, and what services can be provided to assist the parents in meeting the needs of the child. RCW 13.34.130(1).

¶8 A dependency proceeding includes ongoing review hearings to assess the status of the case and whether the needs of the child are being met, whether the parental deficiencies are being addressed, and what progress each parent has made or is required to make in order for the court to allow the child to safely return home.

RCW 13.34.138(1). The review hearings occur until either the court orders that the child return home and dismisses the dependency, orders a guardianship for the child, enters an order terminating parental rights and the child is legally adopted, or the child ages out of the foster care system. RCW 13.34.138(1).

¶9 If the Department determines that termination of parental rights is appropriate, it files a petition seeking termination under a new cause number. RCW 13.34.132. Assuming the termination goes to trial, the Department must prove the parent is unfit such that the legal right of a parent to the care, custody, and control of her child should be terminated. RCW 13.34.180(1), .190.

III. HISTORICAL RIGHT TO APPOINTED COUNSEL IN DEPENDENCY & TERMINATION PROCEEDINGS

¶10 Currently in Washington, children do not have a categorical due process right to court-appointed counsel in dependency or termination proceedings. Statutory law and court rules grant juvenile courts the discretion to decide whether to appoint counsel to a child during dependency proceedings. RCW 13.34.100(7) ; JuCR 9.2(c)(1).⁴ In 2010, the legislature specifically required that children 12 years and older subject to dependency proceedings be informed of their right to request counsel and that the children be asked every subsequent year whether they wish to exercise that right. RCW 13.34.100(7).⁵ Additionally, some counties routinely appoint counsel for children in dependency proceedings.⁶ Moreover, all Washington juvenile courts must appoint counsel for every child whose parents' parental rights have been terminated for six months, regardless of the child's age. RCW 13.34.100(6).

¶11 In 2012, our Supreme Court addressed whether the Fourteenth Amendment compels the appointment of counsel to children in termination proceedings.⁷ In re Dependency of M.S.R. , 174 Wash.2d 1, 20, 271 P.3d 234 (2012). The court recognized that children involved in termination proceedings⁸ have vital liberty interests at stake and may...