State, Dep't of Soc. & Health Servs. v. Parvin (In re Dependency of M.P.)

• Decision Date: 22 December 2014
• Docket Number: Nos. 69713–7–I,69714–5–I.,s. 69713–7–I
• Citation: 340 P.3d 908,185 Wash.App. 108
• Court: Washington Court of Appeals
• Parties: In re The DEPENDENCY OF M.P., a minor, State of Washington, Department of Social & Health Services, Respondent, v. Paul Parvin and Leslie Bramlett, Appellants.

185 Wash.App. 108

340 P.3d 908

In re The DEPENDENCY OF M.P., a minorState of Washington, Department of Social & Health Services, Respondent

v.Paul Parvin and Leslie Bramlett, Appellants.

Nos. 69713–7–I

69714–5–I.

Court of Appeals of Washington, Division 1.

Dec. 22, 2014.

Publication Ordered Dec. 22, 2014.

Sarah McNeel Hrobsky, Washington Appellate Project, Dana M. Nelson, Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA, for Appellant.

Trisha L. McArdle, Ofc of The Atty Gen, Soc & Hlth Svcs A.g. Office, Attorney at Law, Seattle, WA, for Respondent.

Kathleen Carney Martin, Dependency CASA Program, Kent, WA, for Guardian Ad Litem.

Sarah McNeel Hrobsky, Washington Appellate Project, Seattle, WA, for Other Parties.

Opinion

SPEARMAN, C.J.

¶ 1 After a trial on the State's petition for guardianship as to M.P., the trial court entered orders establishing the guardianship and dismissing the dependency as to M.P. The parents of M.P., Paul Parvin and Leslie Bramlett, appeal the trial court's orders. Bramlett argues that the trial court erred when it excluded two defense witnesses without conducting a Burnet¹ inquiry on the record. She argues, in the alternative, that her lawyer provided ineffective assistance when the lawyer failed to give proper notice of the excluded witnesses. Both parents also contest the trial court's findings of fact and conclusions of law. Because the trial court failed to make findings on the record regarding the three Burnet factors prior to excluding Bramlett's witnesses, we reverse the orders establishing the guardianship and dismissing the dependency. We also conclude that RCW 13.36.040(2)(c)(iv) requires the State to prove that all ordered and necessary services have been “expressly and understandably” offered or provided to the parents.

FACTS

¶ 2 Paul Parvin and Leslie Bramlett are the natural parents of M.P. In June 2010, M.P. was removed from his parents' custody based on allegations that M.P. was neglected while in their care. The State, through the Department of Social and Health Services, alleged Parvin and Bramlett were unable to parent M.P. because they suffered from mental illness and substance abuse and had a history of domestic violence. In August 2010, a dependency was established by agreed order as to both parents. The court ordered both parents to participate in mental health services, parenting counseling, urinalysis testing, and other services.

¶ 3 Approximately a year later, the State determined that neither parent had made sustained progress addressing their parental deficiencies and, on August 31, 2011, filed a petition for termination of parental rights. Trial on the petition was initially set for January 17, 2012. The court issued an Order Setting Case Schedule, which established December 1, 2011 as the discovery cutoff date.

¶ 4 The trial date was continued several times. First, on December 21, 2011, upon Parvin's motion, the trial court continued the trial date to March 5, 2012, but specifically declined to amend the case schedule. On February 29, 2012, upon the joint motion of Parvin and Bramlett, the trial court continued the trial date until April 30, 2012, with no further amendment to the case schedule. On April 10, 2012, the State moved to substitute a guardianship petition for the termination petition. The motion was granted and trial was continued to May 21, 2012. The court ordered that the termination case schedule and guardianship case schedule be consolidated for trial. On June 8, 2012, the parties filed an agreed motion to continue the trial date after the State mistakenly tendered discovery responses containing unredacted privileged materials and work product. The trial court continued the trial to August 13, 2012, with a pretrial conference to be held on August 3, 2012. This order made no mention of the case schedule.

¶ 5 One month later, on July 9, 2012, Bramlett was assigned new defense counsel. On August 2, 2012, Bramlett moved the court for another continuance of the trial date to allow her new attorney to prepare for trial. The next day, Bramlett and the State, through their attorneys, appeared at the August 3, 2012 pretrial conference and argued the motion. At the conclusion of the hearing, the trial court entered two orders. One order, entitled “ pretrial conference order,” amended the deadlines for pretrial disclosures by all parties, specifying that updated discovery must be provided to opposing parties on August 10, 2012, and that witness lists must be disclosed by August 13, 2012. The other order continued trial to August 27, 2012, indicated that no further continuances would be granted, and stated that “[n]o amended case schedule is necessary for this case.” Clerk's Papers (CP) at 854.

¶ 6 On August 14, 2012, two weeks before trial and one day after the August 13 disclosure date established by the pretrial conference order, Bramlett served the State with a witness list that included, for the first time, Dr. Makiko Guji. Bramlett claimed Dr. Guji had treated her for the past year and would testify that Bramlett had made good progress in treatment. Dr. Guji's involvement in Bramlett's treatment had never been disclosed to the assigned social worker or the court. No records, reports, evaluations, qualifications, or other information outlining the expected testimony was provided to the State at that time.

¶ 7 Two days later, on August 16, 2012, Bramlett filed an amended witness list that included a second previously undisclosed witness, Dr. Carmela Washington–Harvey.²

Bramlett represented that Dr. Washington–Harvey was prepared to opine that Bramlett was able to capably parent MP.

¶ 8 The State filed a motion to exclude the testimony of both Dr. Guji and Dr. Washington–Harvey because neither witness had been disclosed in compliance with the case schedule. M.P.'s Court Appointed Special Advocate (CASA) joined in the State's motion, asserting that she had just been apprised that Bramlett intended to call Dr. Guji and Dr. Washington–Harvey as expert witnesses and that she had never been advised that an evaluation by Dr. Washington–Harvey was underway. The trial court granted the State's request.

¶ 9 The case proceeded to trial on September 13, 2012. At the end of trial, the court granted the State's guardianship petition and entered an order appointing M.P.'s maternal aunt, Kim Kerrigan, as M.P.'s guardian. The court also entered an order dismissing the dependency as to each parent solely on the basis that the guardianship had been established as to M.P. The court also reduced the parents' visitation from three unsupervised visits per week to one supervised visit per week. Both parents appeal.

DISCUSSION

I.

¶ 10 Bramlett contends the trial court abused its discretion when it excluded the testimony of Dr. Guji and Dr. Washington–Harvey as a sanction for discovery violations. She argues that because the trial court failed to make the necessary findings under Burnet before excluding her witnesses she is entitled to a new trial.

¶ 11 The State contends Burnet is not applicable in this case because only testimony was excluded. It argues that a trial court need only consider the Burnet factors when it imposes the “most severe” sanctions of dismissal or default. Brief of Respondent at 16. The State also argues that even if Burnet is applicable, the trial court did not abuse its discretion by excluding Bramlett's witnesses because the record shows the trial court gave sufficient consideration to the relevant factors. We reject the State's arguments and agree with Bramlett.

¶ 12 A trial court has broad discretion when imposing sanctions for discovery violations and we will not disturb a trial court's determination in this regard “ ‘except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” Burnet, 131 Wash.2d at 494, 933 P.2d 1036. (quoting Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wash.App. 223, 229, 548 P.2d 558 (1976) ). When the trial court chooses to impose one of the harsher remedies allowable under the discovery rules, it must be apparent from the record that the trial court explicitly considered whether a lesser sanction would probably have sufficed, and that it found the disobedient party's refusal to obey a discovery order was willful or deliberate and the violation substantially prejudiced the opponent's ability to prepare for trial. Id.

¶ 13 The State relies on Mayer v. Sto Indus., Inc., 156 Wash.2d 677, 132 P.3d 115, 118 (2006) to argue that the exclusion of testimony is not one of the “harsher remedies” permitted under the discovery rules and thus not subject to Burnet. But neither Mayer nor subsequent cases addressing this issue supports the State's position. In Mayer, the Supreme Court explained which discovery sanctions trigger consideration of the Burnet factors as follows:

[T]he case law that the Burnet court relied on established that before a trial court may impose a CR 37(b)(2)(B) sanction excluding testimony, a showing of willfulness was required; that, for ‘one of the harsher remedies allowable under CR 37(b),’ the record must clearly state the reasons for the sanction; and that for the ‘most severe’ CR 37(b)(2)(C) sanction of dismissal or default, the record must show three things—the trial court's consideration of a lesser sanction, the willfulness of the violation, and substantial prejudice arising from it. However, by elliptically quoting the three-part test of [Snedigar v. Hodderson, 53 Wash.App. 476, 487, 768 P.2d 1 (1989), rev'd in part, 114 Wash.2d 153, 786 P.2d 781 (1990) ], the Burnet court extended the test beyond the ‘most severe’ sanctions of dismissal or withdrawal to encompass ‘the harsher remedies allowable under CR 37(b) ’—a phrase that, at a minimum, means a CR 37(b)(2)(B) sanction excluding testimony but that, more broadly, encompasses any and all of the sanctions described in CR 37(b)(2)(A)-(E).

Mayer,

156 Wash.2d at...