In re E.H.

• Decision Date: 04 October 2018
• Docket Number: No. 94798-8,consolidated with No. 94970-1,94798-8
• Citation: 427 P.3d 587
• Parties: In the MATTER OF the DEPENDENCY OF E.H., a minor child. In the Matter of the Dependency of S.K.-P., a minor child.
• Court: Washington Supreme Court

427 P.3d 587

In the MATTER OF the DEPENDENCY OF E.H., a minor child.

In the Matter of the Dependency of S.K.-P., a minor child.

No. 94798-8

consolidated with No. 94970-1

Supreme Court of Washington.

Oral Argument Date: March 20, 2018

Filed October 4, 2018

OWENS, J.

¶ 1 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 of the 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 of the 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.

¶ 2 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 requires that all children be appointed counsel at all stages of the dependency proceedings. For the following reasons, we find that RCW 13.34.100(7)(a) is adequate under article I, section 3 of the 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 of In re Dependency of J.B.S., 122 Wash.2d 131, 856 P.2d 694 (1993). Accordingly, we grant the joint motion to seal.

FACTS AND PROCEDURAL POSTURE

¶ 3 This matter involves two unrelated juveniles, E.H. and S.K.-P., in unrelated dependency proceedings. R.R., E.H.’s mother, and S.K.-P. both challenge the validity of RCW 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 of E.H.

¶ 4 In 2013, E.H.’s mother, R.R., was sent to prison in California with a scheduled release date in July 2019. She arranged for a family friend to live in the family home and care for her six children while she was incarcerated. Six months after assuming responsibility for the children, the friend sent three of the children (not including E.H.) to live with another friend, who physically and emotionally abused the children in his care. R.R. was not aware of this abuse as it was occurring.

¶ 5 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 of three 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.

¶ 6 E.H. has a court-appointed special advocate (CASA) who fulfills the role of a guardian ad litem (GAL) by representing and advocating for E.H.’s best interests throughout the dependency proceedings and informing the court of E.H.’s stated interests. At a February 2016 permanency planning hearing, the CASA supported a primary plan of terminating R.R.’s parental rights so that E.H. could be adopted. In May 2016, the CASA added guardianship as a secondary possibility based on E.H.’s stated interest in family reunification, noting that E.H.’s current foster placement was a good environment and that the foster parents were willing to serve as long-term guardians. However, the CASA continued to advocate for termination of R.R.’s parental rights based on the CASA’s assessment of E.H.’s best interests.

¶ 7 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).

¶ 8 Beginning from the premise that there is no federal due process right to appointed counsel for all children in dependency cases, the court analyzed the Mathews factors as applied to E.H.’s case individually. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The court recognized the importance of the interests at stake, but also noted E.H.’s CASA was actively involved in E.H.’s case and had been forthright in conveying E.H.’s stated preferences to the court, even though the CASA believed those preferences were contrary to E.H.’s best interests. Critically, although E.H.’s CASA believed that termination of R.R.’s parental rights was in E.H.’s best interest and E.H. continued to desire reunification as a permanency plan, at the time the motion for counsel was made termination was not an issue. The issues being addressed at that 90 day review hearing related to visitation between E.H. and E.H.’s siblings. E.H., E.H.’s CASA, and all persons present supported visitation. The court thus saw "no benefit to [E.H.] in appointing counsel at this juncture" and denied the motion to revise, noting that if the Department moved to terminate and E.H. remained opposed to that position, the issue of appointment of counsel would be revisited. Pet'r's Suppl. Br. (E.H.), J.A. at 10.

¶ 9 R.R. sought discretionary review. A commissioner at Division One of the Court of Appeals denied review, and the Court of Appeals denied the mother’s motion to modify. This court granted the mother’s motion for discretionary review and consolidated this case with In re Dependency of S.K.-P.

In re Dependency of S.K.-P.

¶ 10 S. K.-P. and two half-siblings were removed from their home after allegations of abuse. S.K.-P. was placed in S.K.-P.’s grandmother’s home. Based on its most recent investigation, the Department filed a dependency petition in November 2014, when S.K.-P. was seven years old, and the court appointed S.K.-P. a GAL. In January 2015, S.K.-P.’s mother entered an agreed order of dependency, continuing S.K.-P.’s placement with the grandmother. In February 2015, S.K.-P.’s GAL filed a report with the court, stating that S.K.-P. reported no concerns with the placement and that S.K.-P. has everything S.K.-P. needs and feels safe in the home. In July 2015, the GAL reported that 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.

¶ 11 Five days later, through an attorney who appeared for the limited purpose of the motion only, S.K.-P. moved for appointed counsel. With the motion, S.K.-P. submitted a declaration expressing a desire for maternal placement but challenging visits by the father. The father had no relationship with S.K.-P. prior to the dependency, and according to the grandmother, he was "known for illegal activity in the community and for perpetrating domestic abuse against [S.K.-P.’s] mother." Clerk’s Papers (S.K.-P.) at 29. S.K.-P. had previously reported to the CASA frightening thoughts of being removed and placed with the father. S.K.-P. therefore declared, "I want an attorney to help me with these things and help tell the judge what I want." Id. at 138.

¶ 12 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.

¶ 13 The Court of Appeals granted S.K.-P.’s motion for discretionary review, in which she argued that all children have the right to attorneys in dependency proceedings. On that same day, the Department dismissed S.K.-P.’s dependency petition, and S.K.-P. was returned to the mother’s custody. In re Dependency of S.K.-P., 200 Wash. App. 86, 92, 401 P.3d 442 (2017). On its own motion, the court considered whether to dismiss the appeal as moot.

¶ 14 In light of this court’s guidance in Sorenson v. City of Bellingham, 80 Wash.2d 547, 496 P.2d 512 (1972), the Court of Appeals declined to dismiss and ultimately held that children in dependency proceedings do not have a categorical right to counsel. Instead, the Court of Appeals held that juvenile courts should continue to use the Mathews balancing test to appoint counsel on a case by case basis. S.K.-P., 200 Wash. App. at 92, 401 P.3d 442. S.K.-P. filed a petition for review, which this court granted, and consolidated with In re Dependency of E.H., 189 Wash.2d 1030, 408 P.3d 1094 (2017).

ISSUES

1. Is the mechanism for appointment of counsel for children contained within RCW 13.34.100(7) sufficient to protect the due process rights of children in dependency proceedings under article I, section 3 of the Washington Constitution ?

2. Did the juvenile court abuse its discretion by denying the motion to...