State v. Murphy (In re S.M.M.)

• Decision Date: 18 February 2020
• Docket Number: No. 79743-3-I,No. 79742-5-I,consolidated with No. 79741-7-I,No. 79740-9-I,79740-9-I,79742-5-I
• Citation: 457 P.3d 1229
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the DEPENDENCY OF S.M.M., d.o.b. 06/01/11, K.N.M., d.o.b. 12/16/07, I.A.H., d.o.b. 03/10/06, I.A.H., d.o.b. 03/10/06, Minor Children. State of Washington, Department of Children, Youth, and Families, Respondent, v. Michael Murphy, Appellant.

457 P.3d 1229

In the MATTER OF the DEPENDENCY OF S.M.M., d.o.b. 06/01/11, K.N.M., d.o.b. 12/16/07, I.A.H., d.o.b. 03/10/06, I.A.H., d.o.b. 03/10/06, MinorChildren.

State of Washington, Department of Children, Youth, and Families, Respondent,

v.Michael Murphy, Appellant.

No. 79740-9-I

consolidated with No. 79741-7-I

No. 79742-5-I

No. 79743-3-I

Court of Appeals of Washington, Division 1.

FILED: February 18, 2020

Nielsen Koch PLLC, Attorney at Law, Jennifer J. Sweigert, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, Alena K. Ciecko, King County Department of Public Defense, 1401 E Jefferson St.Ste. 200, Seattle, WA, 98122-5570, for Petitioner.

Laura Jan Dryden Baird, Seattle City Attorneys Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, Soc. & Hlth. Svcs. A.g. Office, Attorney at Law, 800 Fifth Ave, Suite 2000 Ms-tb-14, Seattle, WA, 98104, Patricia Lee Allen, WA State Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

PUBLISHED OPINION

Verellen, J. ¶1 In a dependency, RCW 13.34.100(1) requires the court to appoint a guardian ad litem (GAL) for "any child who is the subject of an action under this chapter, unless a court for good cause finds the appointment unnecessary."In the absence of a finding of good cause, the lack of a GAL generally compels a remand for a hearing to determine whether the child was prejudiced.Both the trial court and the Department of Children, Youth, and Families(the Department) should guard against overlooking the requirement for a GAL or a good cause finding.

¶2Michael Murphy challenges the court’s post-dependency order removing his daughters, K.M. and S.M., and placing them in out-of-home care.A GAL represented the girls at the dependency hearing but withdrew after the court returned the girls to the parents in July 2018.The court did not appoint a new GAL before removing the girls in February 2019.The court did not find good cause that a GAL was unnecessary.Therefore, we remand for appointment of a GAL and a hearing to determine whether K.M. and S.M. were prejudiced by the court’s failure to appoint a new GAL prior to ordering removal.

FACTS

¶3 The underlying dependency action deals with four children: two sisters, K.M. and S.M., and their older twin brothers.In May 2018, the court found the girls dependent and determined "[t]he overriding issue in this case is the health and welfare of the children, and most specifically ... the extremely poor dental health of the children."¹In the July 2018 dispositional order, the court required the parents to engage in a parenting assessment and any subsequent recommended services.²The court also required the children to participate in dental and medical exams.³The court returned the girls to the parents’ home, subject to the Department’s approval of the home.The court also required "all adults in the home [to pass] a background check."⁴

¶4 In December 2018, the Department petitioned to remove the girls.The Department cited various issues, including the parents’ failure to take the girls to medical and dental appointments.

¶5 On December 20, 2018, the court held the first hearing on the Department’s removal petition.At the hearing, attorneys represented each of the brothers and informed the court that the brothers wanted the sisters to remain with the parents.Also at the hearing, the father’s counsel pointed out the girls’ lack of representation:

This family desperately wants to be together.The children want to be together.I would point out that [K.M.] and [S.M.] have no voice here today.They have no CASA at this time.And there's no one here advocating for them, but everyone else in this family is here asking to be together and asking that this family stay together.^[5]

¶6The court reserved ruling until the parents completed parenting assessments.On January 14, 2019, the court held a second hearing on removal.The court again reserved ruling until the parents completed the parenting assessments.

¶7 On February 26, 2019, the court held a third hearing on the Department’s removal petition.At the hearing, the father again reminded the court about the girls’ lack of representation:

These children have been very clear that they want to be together and the family should be reunited.I would point out that we don't hear from [K.M.] or [S.M.] in these proceedings.There is no process.[K.M.] is now 11 and the court should look at some point why she should be represented given the amount of litigation and adversarial nature of this case.^[6]

¶8 At the conclusion of the hearing, the court entered an order removing the girls and placing them in out-of-home care.The court indicated, "[T]he issue is not whether or not the parents are in compliance with court orders but whether or not the children are safe in the parents’ care."⁷

The same problems continue to arise.The parents continue to violate court order after court order after court order.And at this point—and to be completely honest—had the parents complied with the last court orders, based on the parenting assessment, I would have simply ordered intensive family preservation services again rather than removal. ...I am going to grant the Department’s motion at this time.I gave the parents ample opportunity.^[8]

¶9The father sought discretionary review on multiple grounds.A commissioner of this court granted review solely on the GAL issue.

ANALYSIS

¶10The father contends the court abused its discretion in removing the girls without appointing a new GAL.

¶11We review "orders issued in dependency cases for an abuse of discretion."⁹RCW 13.34.100(1) provides, "The court shall appoint a guardian ad litem for a child who is the subject of an action under this chapter, unless a court for good cause finds the appointment unnecessary."

¶12 If the court fails to appoint a GAL or enter a good cause finding that appointment was unnecessary, the question becomes whether the child was prejudiced by the lack of a GAL.If the appellate court lacks confidence that the trial court’s decision "fully serves the best interests of the children when they had no advocate," remand is warranted for a determination whether the child was prejudiced by the lack of an advocate.¹⁰However, reversal is not required if the "testimony is so strong that [the appellate court is] confident that a guardian ad litem would have reached the same conclusion as the therapists and the [trial] court."¹¹

¶13 Here, there was no implicit or explicit finding of good cause to waive the GAL requirement; the only question is whether the lack of a GAL was prejudicial.The Department argues, "[T]he strong evidence of continued harm in this case could not have been refuted by a [GAL]."¹²The Department also contends the GAL could not have provided any more evidence about the parent-child relationship because "all evidence of attachment and love between the parents and children had been fully fleshed out by the parties involved."¹³But these arguments oversimplify the role of a GAL in motions to remove children from the parents’ home.

¶14 Prior to ordering removal, the court received evidence concerning the girls’ dental health, the girls’ school attendance, the living conditions in the parents’ house, and the parents’ refusal to comply with the dispositional order and subsequent requirements.The Department contends this was enough information to make a decision on removal without any input from a GAL.But this logic would circumvent the purpose of RCW 13.34.100.The purpose of the statute is to ensure the children’s interests are individually represented to the court.

¶15 In In re Dependency of O.J., the mother appealed the court’s order terminating her parental rights to her two sons and argued, in part, the court’s failure to appoint a GAL was reversible error.¹⁴At no point during the dependency and termination were the boys represented by a GAL, and no one raised the GAL issue prior to the termination hearing.During the three-day termination hearing, the court heard extensive testimony from various individuals involved with the children, including teachers, therapists, caseworkers, and one of the boy’s foster mothers.¹⁵At closing argument, the mother’s counsel raised the GAL issue for the first time.This court noted:

Had [the mother] drawn the court’s attention to its failure to make a finding of good cause not to appoint a guardian ad litem and the court still failed to act or relied for its finding on something other than good cause, there might well be reversible error.^[16]

Ultimately, this court concluded the trial court’s failure to appoint a guardian ad litem was not reversible error because the "testimony [was] so strong that we are confident that a guardian ad litem would have reached the same conclusion as the therapists and the court."¹⁷

¶16 In In re Dependency of A.G., the mother appealed the trial court’s decision terminating her parental rights to her two daughters.¹⁸She argued the "termination [was] void because a guardian ad litem was not appointed for either of the children at any time during the proceedings."¹⁹The court determined:

[N]o attorney brought up the matter of an appointment of a guardian ad litem to any of the judges or commissioners who made the numerous decisions.No court brought up the matter on its own, and no good cause determination was ever made.While we do not have to reverse for these omissions, the combination of circumstances in this case requires a remand.^[20]

¶17 The caseworker was the only witness at the termination hearing.But there was evidence of a close relationship between the mother and her children."We are not certain that the one-sided story presented to the trial court is ultimately fair to [the mother] and the children because we cannot be confident that the decision fully serves the best interests of the children when they have no advocate."²¹As a result, this court remanded the case"to the trial court for a hearing...