In re E.M.

• Decision Date: 15 April 2021
• Docket Number: No. 98596-1,98596-1
• Citation: 484 P.3d 461,197 Wash.2d 492
• Parties: In the MATTER OF the DEPENDENCY OF E.M., a minor child
• Court: Washington Supreme Court

197 Wash.2d 492

484 P.3d 461

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

No. 98596-1

Supreme Court of Washington.

Oral Argument Date: January 19, 2021

Filed: April 15, 2021

Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Petitioner.

Kelly L. Taylor, Office of the Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, Alicia O. Young, WA State Attorney General's Office, Po Box 40100, Olympia, WA, 98504-0100, for Respondent.

Kathleen Carney Martin, Dependency CASA Program, 401 4th Ave. N. Rm. 3081, Kent, WA, 98032-4429, for Guardian(s) Ad Litem.

Jeffrey Todd Even, Office of The Attorney General, Po Box 40100, 1125 Washington St. Se, Olympia, WA, 98504-0100, for Amicus Curiae on behalf of Office of Civil Legal Aid.

Sungah Annie Chung, Legal Counsel For Youth and Children, Po Box 28629, Seattle, WA, 98118-8629, for Amicus Curiae on behalf of Legal Counsel for Youth and Children.

D'Adre Beth Cunningham, Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Washington Defender Association.

Lisa Ann Kelly, University of Washington, Po Box 85110, William H. Gates Hall, Ste. 265, Seattle, WA, 98145-1110, for Amicus Curiae on behalf of Children and Youth Advocacy Clinic.

Nancy Lynn Talner, ACLU-WA, Julia Mizutani, Attorney at Law, Po Box 2728, Seattle, WA, 98111-2728, Antoinette M. Davis, American Civil Liberties Union of Washington, Po Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of ACLU of Washington.

Tara Urs, La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of King County Department of Public Defense.

Thomas E. Weaver Jr., Attorney at Law, Po Box 1056, Bremerton, WA, 98337-0221, for Amicus Curiae on behalf of WA Criminal Defense Lawyers.

OWENS, J.

¶ 1 This case asks whether a private attorney can represent a child in a dependency proceeding without first obtaining the court's approval. In 2018, E.M. was a three-year-old boy who had lived with his grandmother since birth as a dependent child of the State. When his grandmother sought to return to work, E.M. suddenly found himself in a custodial tug-of-war between his biological parents, his grandmother, and the State. After the dust had settled, the King County Superior Court placed E.M. in foster care—separating E.M. from his family for the first time in his young life.

¶ 2 E.M.’s grandmother quickly retained an attorney for E.M. for the purpose of asking the King County Superior Court to reconsider its decision. The attorney, however, was unable to meet with E.M. because the Department of Children, Youth, and Families (Department) would not provide contact details or arrange a meeting with E.M. Ultimately, the court declined reconsidering E.M.’s placement in foster care because it ruled that the attorney was not appointed by the court to represent E.M. and because the representation raised numerous ethical issues. E.M.’s mother appealed this ruling, and the Court of Appeals affirmed.

¶ 3 Washington litigants involved in a broad range of matters enjoy the paramount right to retain a private attorney of their choice to best represent their interests—without the court's interference. Dependency proceedings carry drastic consequences that may forever dwell on a child. Children at such an important crossroads in life must also be afforded this right when they are sufficiently mature to make such a decision. However, when a child is not sufficiently mature to make such a consequential decision, the court inherently has plenary authority in deciding whether to allow a representation to proceed.

¶ 4 Nonetheless, circumstances may arise where an attorney must undertake a representation to protect a person's interest in limited circumstances before the attorney has had a chance to meet with the person or obtain the court's approval. Accordingly, before striking a representation, the court must first consider whether the circumstances may authorize such a limited representation. As the superior court failed to make this consideration before striking the notice of appearance, we reverse.

I. STATEMENT OF FACTS

¶ 5 E.M. is a young boy who was born in 2015. He was declared to be a dependent child of the State shortly after his birth and lived with his grandmother during the following years.¹ In 2017, E.M.’s grandmother (Grandmother) sought to return to work and supported a change in placement to his mother (Mother), provided there was a visitation monitor present to monitor their contact at all times. Although Grandmother sought a return to work, ensuring E.M. had a safe place to live took precedence.

¶ 6 Mother petitioned for E.M. to live with her and a friend (a visitation monitor), while E.M.’s father (Father) filed a competing motion, seeking to place E.M. in foster care. The commissioner granted Mother's request. E.M. lived with Mother and the visitation monitor for a very brief time. Father moved to revise the commissioner's decision in King County Superior Court. Father asserted that Mother was alone with E.M. when the visitation monitor was at work in violation of the court's order. Father further argued that E.M. should not move back with Grandmother because Grandmother berated Father in front of E.M., thereby reducing Father's chances of reunification. Instead, Father asked the court to place E.M. in foster care. The superior court agreed and ordered E.M. to be placed in foster care.

¶ 7 In response to the order, Grandmother quickly retained an attorney, Ms. Aimée Sutton,² to represent E.M. five days after E.M. was moved to foster care. The attorney was unable to meet with E.M. because the Department would not provide contact details to the attorney or allow the attorney to meet with E.M. The attorney promptly filed a notice of appearance days before filing a motion to reconsider the court's decision to place E.M. in foster care. On the same day the attorney filed the notice of appearance, the court appointed a guardian ad litem for E.M., as E.M. had been without a guardian ad litem for the previous several months.

¶ 8 The attorney filed a timely motion for reconsideration a few days later, noting that the turbulence of the placement changes had begun to negatively affect E.M. The attorney noted that E.M. had been moved between placements four times within a month, visited Mother less often, and had a number of meetings with Mother unexpectedly cancelled. The attorney argued that E.M.’s transition to foster care could result in significant psychological consequences as E.M. had always previously lived with a family member. The attorney advocated for E.M. to return to Grandmother, where he lived before the placement changes began.

¶ 9 Father and the Department opposed the attorney's representation of E.M. in their responses to the motion for reconsideration. At the reconsideration hearing, the court preliminarily struck the attorney's notice of appearance and refused to hear the substance of the motion. The superior court ruled that the attorney could not represent E.M. because the attorney was not appointed pursuant to RCW 13.34.100 and because the representation presented numerous ethical issues. Mother appealed the ruling, and Division I of the Court of Appeals affirmed the trial court. In re Dependency of E.M. , 12 Wash. App. 2d 510, 458 P.3d 810 (2020). The attorney has placed fees for this representation in trust, and the attorney has not drawn from these funds. E.M. has lived in foster care ever since.

II. ISSUES PRESENTED

1. Does RCW 13.34.100 require that private attorneys for children in dependency proceedings be appointed by the court prior to beginning representation?

2. Did the trial court err when it struck the attorney's notice of appearance based on the attorney's ability to comply with the Rules of Professional Conduct?

III. ANALYSIS

A. RCW 13.34.100 Does Not Require Private Attorneys for Children in Dependency Proceedings To Be Appointed by the Court

¶ 10 We are first³ tasked with determining whether RCW 13.34.100(7) requires privately retained attorneys for children in dependency proceedings to first be appointed by the court prior to beginning representation. This is a question of statutory interpretation, which we review de novo. Jametsky v. Olsen , 179 Wash.2d 756, 761-62, 317 P.3d 1003 (2014).

¶ 11 In resolving an issue of statutory construction, we first look to the plain meaning of the statute. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). Meaning must be ascertained from the plain language of the statute, unless the statute is ambiguous in that the language "remains susceptible to more than one reasonable meaning." Id . at 12, 43 P.3d 4 (citing Cockle v. Dep't of Labor & Indus ., 142 Wash.2d 801, 808, 16 P.3d 583 (2001) ). Thus, if the plain meaning of the statute is unambiguous, we end our inquiry. Only when the statute is ambiguous do we resort to the aids of statutory construction and legislative history. Id.

¶ 12 The Department primarily asserts that RCW 13.34.100 requires that all attorneys representing children in dependency proceedings first be appointed by the court. The Department asserts that the legislature envisioned a "gatekeeping" role for courts in permitting representation of children in dependency proceedings.

¶ 13 For support of its position, the Department compares subsection (7)(a) of RCW 13.34.100 with subsection (7)(b):

(7)(a) The court may appoint an attorney to represent the child's position in any dependency action on its own initiative, or upon the request of a parent, the child, a guardian ad litem, a caregiver, or the department.

(b)(i) If the court has not already appointed an attorney for a child, or the child is not represented by a privately retained attorney:

(A) The child's caregiver, or any individual, may refer the child to an attorney for the purposes of filing a

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