State Dep't of Soc. & Health Servs. v. Luak (In re Dependency of MSR)

• Citation: 271 P.3d 234
• Decision Date: 01 March 2012
• Docket Number: No. 85729–6.,85729–6.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the DEPENDENCY OF MSR and TSR.Washington State Department of Social and Health Services, Respondent, v. Nyakat Luak, Appellant.

271 P.3d 234

In the Matter of the DEPENDENCY OF MSR and TSR.Washington State Department of Social and Health Services, Respondent,

v.Nyakat Luak, Appellant.

No. 85729–6.

Supreme Court of Washington, En Banc.

Argued Oct. 18, 2011.Decided March 1, 2012.

Mindy Michelle Carr, Mindy Carr, Jan Trasen, Marla Leslie Zink, Washington Appellate Project, Seattle, WA, for Appellant.

Susan E. Llorens, Attorney at Law, Seattle, WA, Allyson Zipp, Peter B. Gonick, Attorney General's Office, Olympia, WA, for Respondent.

Nancy Lynn Talner, Sarah A. Dunne, Melody Rose Spidell, ACLU of Washington Foundation, Jared Van Kirk, Garvey Schubert Barer, Seattle, WA, amicus counsel for American Civil Liberties Union of Washington.Casey Trupin, Erin Kathleen Shea McCann, Columbia Legal Services, Bobbe Jean Bridge, Center for Children & Youth Justice, Seattle, WA, amicus counsel for Center for Children & Youth Justice & Columbia Legal Services.Kimberly Dawn Ambrose, University of Washington School of Law, Seattle, WA, amicus counsel for Children and Youth Advocacy Clinic.Kari Lee Vander Stoep, John Samuel Wilson, K & L Gates, LLP, Seattle, WA, amicus counsel for Children's Law Center of California, First Star, Juvenile Law Center, Kidsvoice, Professor Michael Dale, Professor Theodor Liebmann, the Children's Advocacy Institute, the National Association of Counsel for Children, and the National Center for Youth Law.Kimberly Dawn Ambrose, University of Washington School of Law, Seattle, WA, amicus counsel for Lisa Kelly Children and Youth Advocacy Clinic.Eric S. Merrifield, J. Camille Fisher, Perkins Coie, LLP, Seattle, WA, amicus counsel for Mockingbird Society.Jana L. Heyd, Attorney at Law, Seattle, WA, amicus counsel for Society of Counsel Representing Accused Persons.Brent M. Pattison, Drake University, Des Moines, IA, Hillary Ann Behrman, Seattle, WA, Nicole K. McGrath, Teamchild, Everett, WA, amicus counsel for TeamChild.Robert D. Wyman Jr., Floris Joy Mikkelsen, The Defender Association, Seattle, WA, amicus counsel for the Defender Association.Travis Stearns, Washington Defender Association, Seattle, WA, for amicus counsel for Washington Defender Association.Linda Lillevik, Carey & Lillevik, PLLC, Seattle, WA, amicus counsel for Washington State Psychological Association.CHAMBERS, J.

¶ 1 After a lengthy trial, a judge found that the State had established all statutory and constitutional factors necessary for the termination of Nyakat Luak's parental rights to her twin sons. Luak argues that the trial court erred in finding two of the statutory factors: that the State expressly and understandably offered or provided to her all the necessary services to correct her parental deficiencies and that there was little likelihood those deficiencies could be remedied in the foreseeable future. We find substantial evidence supports the judge's findings.

¶ 2 Additionally, Luak contends the trial judge erred in not appointing counsel to represent her twin sons. Washington law authorizes, but does not require, trial judges to appoint counsel to children who are the subject of dependency and termination cases. RCW 13.34.100(6). Luak essentially contends that the statute is inadequate and constitutional due process guarantees every child in a dependency or termination case appointed counsel. We agree that children whose parents are subject to dependency and termination proceedings have vital liberty interests at stake and may constitutionally be entitled to counsel, if necessary to protect those interests. But whether any individual child is entitled to counsel must be decided case by case. We hold that RCW 13.34.100(6) is constitutionally adequate and that the deprivation, if any, of a child's right to counsel in such circumstances may be protected by appellate review. We note that neither Luak nor anyone else requested counsel for her children below and she raised her due process claim for the first time on appeal, denying the trial judge of the opportunity to timely consider the issue. She has failed to meet her burden of showing reversible error, and the termination of her parental rights is affirmed.

FACTS

¶ 3 The trial court found Luak left her then four-year-old twin sons and the twin's younger sister alone in her apartment while she went to work. While the children were alone in the apartment, a fire broke out.¹ After the fire was put out, police waited for two hours for a parent or caretaker to return. When none did, the children were taken into protective custody and transported to Seattle Children's Hospital to be treated for smoke inhalation. About five and a half hours after the fire, Luak contacted the police. When she was told that her children were at the hospital and that they had been found unsupervised in an apartment during a fire, she became hysterical and hung up. Luak went to the hospital and waited in the parking lot for her children to emerge. When she saw her children with a social worker, she “assaulted social worker Mary Marrs in the parking lot of Children's Hospital by punching her in the head and kicking her in the leg.” Clerk's Papers (CP) at 185.

¶ 4 Luak's life has undoubtedly been very difficult. She is a refugee from the Sudanese civil wars and spent time in a brutal refugee camp before immigrating to the United States as a teenager. At the time of the trial, she had three children and was pregnant with a fourth. In addition to the twin boys, born in 2000, at issue in this petition, their younger sister who was in the apartment is now in the custody of her father. The father of the twin boys has apparently played no role in their lives, and his parental rights were terminated in 2008.

¶ 5 The twins were found dependent in 2005. In January 2006, after Luak completed parenting classes, the children were returned to her. They were removed that October after one was injured by Luak's brother, who drove drunk with the children in the car. They were returned to Luak in June 2007 and removed that October after Luak was arrested on suspicion of possession of a stolen vehicle and on an outstanding warrant for a weapons violation. They were returned again that November and removed again that December. It appears that Luak has not had custody since.

¶ 6 While Luak clearly loves her children and no one has suggested that she has ever physically harmed them herself, Luak has a history of episodes of rage and physical attacks on those around her. Luak was directed to take parenting and anger management classes, to avail her of family preservation services, to undergo a psychological assessment, and to follow any therapy recommendation made by the evaluator. The psychological evaluator initially recommended psychotherapy and later cognitive behavioral therapy, which Luak did not do.

¶ 7 In 2008, Luak assaulted a visit supervisor in front of her daughter and assaulted her boyfriend by repeatedly punching him in the head while he was holding their one-month-old son. A 2008 evaluation found that Luak's parental deficiencies had not improved and stressed the need for cognitive behavior therapy. The trial court found that “[t]he evidence presented at this trial establishes beyond doubt that the essential service for Ms. Luak is [cognitive behavior therapy and] it is clear that she has known for years that she has been ordered to do it and where to obtain it but has failed to do so.” CP at 183. Aside from that, she “participated in the ordered services more than once.” Id.

¶ 8 On August 8, 2008, the State petitioned to terminate the parent-child relationship. It noted that the children were in a relative placement and were doing well. A guardian ad litem (GAL) for the children was assigned a week later. It appears that the twins have been living with their uncle, Luak's brother, since 2007. A social worker testified that the uncle had an “open-door policy” where Luak was welcome to visit at any time, but as of the time of trial, had not.

¶ 9 Before the trial, the State filed a motion in limine to exclude MSR, TSR, and their younger sister from testifying, arguing that it was not in their best interests, that cross examination would likely “cause the children undue discomfort” and that the experience could traumatize them. CP at 94–95, 97. It noted that the GAL was “statutorily required to report to the court the express wishes of [the children] regarding termination of parental rights [and] if the children oppose termination ... the court will be required to take that into consideration.” CP at 97. Luak opposed the motion, arguing that the court should hear from the children before making such a monumental decision about their lives and that the trauma of testifying would be outweighed by the trauma of having the decision made without their input. In the alternative to formal testimony, she suggested the trial judge interview the children in chambers, with counsel present. During the pretrial hearing, the court appointed special advocate (CASA) for the children supported the State's motion in limine.² The GAL stipulated that “the boys would say that they don't want to lose their mom.” 7A Verbatim Report of Proceedings (VRP) (Oct. 18, 2009) at 988. However, the GAL strongly opposed having the children testify because it could cause them “extreme anxiety,” and they might “blame themselves for the rest of their lives that they caused the action that the Court had to take.” Id. at 988–89. Judge James Doerty said, “I don't see the purpose, and there's a big downside” and granted the motion to exclude the children from testifying. Id. at 991. It appears from the record and briefing that Luak never suggested counsel be appointed to represent her children.

¶ 10 After a 13 day trial, Luak's parental rights were terminated. Judge Doerty found that Luak clearly loved her children and found “the possibility of losing them through the legal system enormously frustrating and baffling.” CP at 181. He also found that her...