King v. King
| Decision Date | 06 December 2007 |
| Docket Number | No. 79978-4.,79978-4. |
| Citation | 162 Wn.2d 378,174 P.3d 659 |
| Parties | In the Matter of the Marriage of Michael Steven KING, Respondent, v. Brenda Leone KING, Petitioner. |
| Court | Washington Supreme Court |
Kathleen M. O'Sullivan, Rebecca S. Engrav, Perkins Coie LLP, Nicholas Peter Gellert, Attorney at Law, Seattle, WA, for Appellant.
Bradley K. Crosta, Attorney at Law, Kenneth G. Christensen, Office of Ken Christensen, Seattle, WA, for Respondent.
Jeffrey Todd Even, Office of The Attorney General, Olympia, WA, for Amicus Curiae Attorney General of State of Washington.
Raven Clarke Lidman, Seattle University Law Clinic, Seattle, WA, Martha F. Davis, Northeastern School of Law, Boston, MA, for Amicus Curiae International Law School.
Vanessa Soriano Power, Stoel Rives LLP, Seattle, WA, Debra Gardner, Janet Hostetler, Public Justice Center, Baltimore, MD, Clare Pastore, Los Angeles, CA, Russell Engler, Boston, MA, for Amicus Curiae National Coalition for a Civil Right to Counsel.
Raegen Nicole Rasnic, Skellenger Bender PS, Seattle, WA, for Amicus Curiae Northwest Women's Law.
Fredric Tausend, Kirkpatrick & Lockhart Preston Gates Ellis, Seattle, WA, David S. Udell, Laura K. Abel, Brennan Center for Justice, Sidney S. Rosdeitcher, Michael N. Berger, Paul, Weiss, Rifkind, New York, NY, for Amicus Curiae Retired Washington State.
Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, for Amicus Curiae Washington State Association of Counties.
Robert Dean Welden, Washington State Bar Association, Marvin Lee Gray, Jr., Davis Wright Tremaine LLP, Seattle, WA, for Amicus Curiae Washington State Bar Association.
Erik DuPen Price, Lane Powell PC, Olympia, WA, for Amicus Curiae Washington State Legislature.
¶ 1 This case involves the issue of whether an indigent parent has a constitutional right, primarily under the Washington State Constitution, to appointment of counsel at public expense in a dissolution proceeding. The constitutional claims are primarily based on article I, section 3, article I, section 10, and article I, section 12 of the Washington State Constitution. During a five day trial, the petitioner, Brenda King, acted pro se and the respondent, Michael King, was represented by counsel. At the trial's conclusion, the superior court entered a parenting plan granting primary residential care of the children to the father-respondent. The plan granted visitation rights to the petitioner-mother. The petitioner then obtained assistance of counsel and filed a motion for a new trial, a motion that the trial judge denied. We granted direct review of that decision and affirm.
¶ 2 Brenda and Michael King were married for approximately 10 years and had three children. During the marriage, the petitioner was the primary at-home caregiver for their children. In September 2004, the parties separated and the respondent filed for dissolution of the marriage. He sought to become the primary residential parent for their three children.
¶ 3 The respondent was represented throughout the proceedings by private counsel. While the petitioner had counsel for part of the proceedings, at trial she was unrepresented and proceeded pro se.
¶ 4 The trial court awarded the respondent primary residential care of the children and decision-making authority. The petitioner was awarded unsupervised visitation time on alternating weekends, four weeks of vacation each summer, and school spring break in odd numbered years. She also received authority to make day to day decisions when the children were with her and reasonable telephone contact. Clerk's Papers (CP) at 250-52, 254-56.
¶ 5 Following trial, Ms. King obtained counsel. The attorney appeared and moved for a new trial and requested that counsel be appointed, at public expense, to represent King.1 The superior court denied the motion. The court explained that the legislature had not provided funding for counsel. The court also cited its lack of authority to appoint an attorney without compensation. Ms. King appealed. We granted direct review.2
¶ 6 Before proceeding to an analysis of the constitutional claims presented, it is necessary to define the nature of the interest implicated in this case. Defining or determining the interest involved will guide the constitutional analysis and determination.
¶ 7 The petitioner claims her fundamental parental liberty interest is at stake in a dissolution proceeding and that the court order deprives her of the care, custody, companionship, and control of her children. To support her argument, petitioner relies on, and cites to, several of our cases for support. In In re Welfare of Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974), we held that in the context of a state instituted parental termination proceeding, indigent parents possess a due process right to appointment of counsel at public expense. We recognized the fundamental nature of the parent-child relationship, a relationship that was entitled to constitutional significance. Later, in In re Welfare of Myricks, 85 Wash.2d 252, 533 P.2d 841 (1975), we extended this reasoning to state instituted dependency proceedings.3 The petitioner claims her constitutional interests in a dissolution proceeding involving custody are no less significant than those recognized under Luscier and Myricks.
¶ 8 The respondent argues that a dissolution proceeding is a private dispute in which, under the controlling statutes, the court enters a parenting plan dividing the residential placement of the children. The result is an arrangement in which the rights and obligations of parenting are shared between the parents. Respondent maintains that under the statutory scheme, no deprivation of fundamental parental rights takes place that would warrant application of full procedural due process protections. The respondent points to In re Dependency of Grove, 127 Wash.2d 221, 897 P.2d 1252 (1995), in which we held that where fundamental constitutional rights are not threatened, no right to counsel exists at public expense. He argues that shared custody is fundamentally different from permanent deprivation of parental rights and that any decision concerning the appointment of counsel at public expense must be left to the legislature. The respondent further points out that no cases exist that extend a constitutional right to the appointment of counsel at public expense under these circumstances.
¶ 9 In Luscier, we reviewed a superior court order that denied an indigent parent the appointment of appellate counsel to challenge an order previously entered permanently depriving the parent of all parental rights and interests. After surveying and analyzing prior case authority, we recognized a parent's interest in the custody and control of their children as an essential right entitled to full due process safeguards, including appointment of counsel at public expense. Our holding was supported by similar cases from other states, which had held appointment of counsel was constitutionally mandated in permanent deprivation proceedings.
¶ 10 In Myricks, we applied similar reasoning to require appointment of counsel in state instituted dependency and neglect proceedings where, although the child was temporarily removed from the home, the likelihood of permanent deprivations was substantial. In Myricks, as in Luscier, we recognized the fundamental nature of parental rights at issue in the dependency proceedings. We also noted the fact that the indigent parent faced the superior power of state resources in the proceedings.
¶ 11 Dissolution proceedings are generally a private action between spouses resulting in termination of the marriage. Where the parties have children, the proceedings will also involve a decision on where the children will primarily live and how, among other things, parents will share placement time with the children. The legislature has provided that the best interests of the children is ordinarily served when the preexisting "pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents ...." RCW 26.09.002. What this policy promotes is the continued parental involvement in the children's lives to the greatest extent possible, given the dissolution of the marriage.
¶ 12 The entry of a parenting plan effectuating the legislative purpose of continued parental involvement in the children's lives does not equate to an action where the State is seeking to terminate any and all parental rights and parental involvement with the children, severing the parent-child relationship permanently. As the amicus brief of Washington State Attorney General Robert M. McKenna points out, a dissolution proceeding is fundamentally different from termination or dependency proceedings. The dissolution proceeding is a private civil dispute initiated by private parties to resolve their legal rights vis-a-vis each other and their children. When children are involved in the marriage, entry of a parenting plan is a statutory requirement. RCW 26.09.050(1). Entry of such a parenting plan does not terminate the parental rights of either parent, but rather allocates or divides parental rights and responsibilities in such a way that they can be exercised by parents no longer joined in marriage.4 Even where a parenting plan results in a child spending substantially more, or even all, of the child's time with one parent rather than the other, both parents remain parents and retain substantial rights, including the right to seek future modification of the parenting plan. See RCW 26.09.260. As such, the parenting plan divides parental roles and responsibilities, rather than terminating the rights of either parent.
¶ 13 Furthermore, the State's involvement is meaningfully different. The proceeding is not instituted by the State. The State is not a party to the proceedings with regard to...
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