Michel-Garcia v. State (In re Dependency A.m.-S.), 79364-1-I (consolidated with Nos. 79365-9 & 79366-7)

Citation11 Wash.App.2d 416,454 P.3d 117
Decision Date16 December 2019
Docket NumberNo. 79364-1-I (consolidated with Nos. 79365-9 & 79366-7),79364-1-I (consolidated with Nos. 79365-9 & 79366-7)
Parties In the MATTER OF the DEPENDENCY OF A.M.-S., DOB: XX/XX/XX. Sergio Michel-Garcia, Petitioner, v. State of Washington, Respondent.
CourtCourt of Appeals of Washington

11 Wash.App.2d 416
454 P.3d 117


Sergio Michel-Garcia, Petitioner,
State of Washington, Respondent.

No. 79364-1-I (consolidated with Nos. 79365-9 & 79366-7)

Court of Appeals of Washington, Division 1.

FILED: December 16, 2019

Thomas Michael Kummerow, Kate Huber, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-1683, for Petitioner.

Lauren Danskine, Attorney at Law, 3501 Colby Ave. Ste. 200, Everett, WA, 98201-4795, Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent.

Kirsten Jensen Haugen, Attorney at Law, 2801 10th St., Everett, WA, 98201-1414, for Guardian(s) Ad Litem.

Ann Margaret Brice Law Office of Brice & Timm LLP 1223 Broadway Everett, WA, 98201-1715, for Other Parties.


Andrus, J.

454 P.3d 120
11 Wash.App.2d 420

¶1 Sergio Michel-Garcia, the father of A.M.-S., appeals a trial court order denying his request for derivative use immunity for statements he has made or may make during a psychological evaluation or any other court-ordered services during this dependency proceeding. We conclude the trial court does not have the inherent authority to grant Michel-Garcia derivative use immunity and therefore affirm.


¶2 In May 2018, the Department of Social and Health Services1 filed a dependency petition on behalf of 10-year-old A.M.-S., alleging that the child’s mother2 and father, Sergio Michel-Garcia, had physically abused A.M.-S. and three other children living in the home. The Snohomish County Sheriff’s Office opened a criminal investigation into the alleged abuse.

¶3 The parents agreed to the entry of a shelter care order removing the children from their home in May 2018, and an

11 Wash.App.2d 421

order finding the children dependent in August 2018.3 Michel-Garcia denied the allegations of abuse, but "given the nature of the allegations and the possibility of criminal charges, the father agree[d] that he [wa]s unable to care for the child at this time and admit[ted] that if this matter proceeded to a [f]act-[f]inding hearing, the Department would more likely than not prove that the child [wa]s dependent by a preponderance of the evidence." He stipulated to a finding under RCW 13.34.030(6)(b)4 that "the child is abused or neglected as defined in Chapter 26.44 RCW," and a finding under RCW 13.34.030(6)(c) that the child had no parent capable of adequately caring for the child.

¶4 Michel-Garcia also acknowledged that the services listed in section 4.5 of the order "would be required in order to reunite him with his child." One of the services listed, and in which he agreed and the court ordered him to participate, was a psychological evaluation with a parenting component. The court reserved on whether to order Michel-Garcia to undergo other services that the Department requested—namely, a domestic violence assessment and an anger management assessment.

¶5 In September 2018, Michel-Garcia asked the court to grant him use and derivative use immunity, under State v. Decker,5 for any statements he made or information he provided in any services ordered by the dependency court. The Department notified the Snohomish County Prosecuting Attorney’s Office (PAO) of the father’s immunity request, and the PAO objected to a

454 P.3d 121

judicial grant of immunity broader than that statutorily authorized under

11 Wash.App.2d 422

RCW The PAO argued that Michel-Garcia's Fifth Amendment right against self-incrimination could be adequately protected during any evaluation by this grant of statutory use immunity and the presence of counsel.

¶6 The dependency court denied Michel-Garcia’s request for derivative use immunity. The court found that with a criminal investigation pending against him, Michel-Garcia voluntarily agreed to engage in psychological evaluations but wished to do so without waiving any Fifth Amendment rights. It also found that "[t]he custom in our juvenile court historically is to grant Decker motions [for immunity] if unopposed." It found no case law directly on point on the issue of whether a parent should be granted Decker immunity in a dependency case so he can engage in evaluations and treatment.

¶7 The court analyzed two cases on which Michel-Garcia relied— In re Dependency of Q.L.M., 105 Wash. App. 532, 20 P.3d 465 (2001), and In re Dependency of J.R.U.-S., 126 Wash. App. 786, 110 P.3d 773 (2005) —and found neither case applicable. The court noted that, contrary to Q.L.M., neither parent in this case had requested a protective order limiting the questions the parents could be forced to answer. It further concluded that under J.R.U.-S., court-ordered psychological evaluations are not testimonial in nature and, as a result, Decker did not apply.

¶8 The court reasoned:

Parents always have the right to go to trial on termination and dependency petitions, and to have extended hearings, so the court can evaluate their statements in various ways. It is the parents’ choice not to go to trial after consulting with their attorneys about what the best strategy is. In this case the
11 Wash.App.2d 423
strategy was to accept a ‘b’ and ‘c’ dependency without an explicit statement of facts. The parents are still free to have a termination trial if it comes to that. They can give their statements and be subject to cross-examination, and if they invoke the Fifth Amendment at trial, ... the court can draw whichever conclusions it wishes to draw.

¶9 The court concluded that RCW 26.44.053(2), the statute granting use immunity to parents for statements made or information provided during dependency evaluations, combined with the parents’ ability to simply refuse to answer questions that might elicit inculpatory information, sufficiently protected the parents’ Fifth Amendment rights. The court ordered:

Pursuant to RCW 26.44.053, no information given at any examinations of the parents (completed in association with this dependency action) may be used against the parents in subsequent criminal proceedings against the parents concerning the alleged abuse or neglect of the child. The Department shall not provide copies of the parents’ evaluations to the Prosecuting Attorney, nor shall the Department discuss the evaluations/recommendations with the Prosecuting Attorney.

The court ordered Michel-Garcia to participate in a psychological evaluation and a domestic violence assessment pursuant to the terms of this protective order.

¶10 We granted Michel-Garcia’s request for discretionary review of the order denying derivative use immunity.


¶11 Michel-Garcia asks this court to hold that trial courts in Washington have the inherent authority to grant derivative use immunity to parents participating in dependency services when necessary to protect their Fifth Amendment rights against self-incrimination. But the Snohomish County PAO asks the court to hold that immunity is solely a legislative prerogative and that, in the absence of statutory authorization to grant immunity, courts have no

11 Wash.App.2d 424

authority to grant immunity to any party or witness without prosecutorial consent. And

454 P.3d 122

the Department asks the court to dismiss the appeal as moot.

A. Mootness

¶12 The Department asks the court to dismiss the appeal as moot because Michel-Garcia has completed the court-ordered psychological evaluation. A case is moot if we can no longer provide effective relief. State v. T.J.S.-M., 193 Wash.2d 450, 454, 441 P.3d 1181 (2019). We conclude the case is not moot because the dependency is still ongoing and additional services may be ordered for which Michel-Garcia could seek derivative use immunity for any statements he may make while participating in these additional dependency services, not just the already completed psychological evaluation. The parties have fully litigated and briefed this issue, and it would be a waste of judicial resources to dismiss an appeal on an issue that is likely to recur. See Orwick v. City of Seattle, 103 Wash.2d 249, 253, 692 P.2d 793 (1984). We are in a position to provide the relief Michel-Garcia seeks, and the appeal is thus not moot.

¶13 Moreover, we may consider technically moot issues "when the court discerns a likelihood of recurrence of the same issue, generally in the framework of a ‘continuing’ or ‘recurring’ controversy, and ‘public interest’ in the controversy." In re Dependency of H., 71 Wash. App. 524, 527-28, 859 P.2d 1258 (1993) (quoting DeFunis v. Odegaard, 84 Wash.2d 617, 627, 529 P.2d 438 (1974) ); see also State v. Hunley, 175 Wash.2d 901, 907, 287 P.3d 584 (2012) (case may be decided if it involves matters of continued...

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