State v. Parvin (In re M.H.P.)

Decision Date10 December 2015
Docket NumberNo. 90468–5.,90468–5.
Citation364 P.3d 94,184 Wash.2d 741
CourtWashington Supreme Court
Parties In the Matter of the Dependency of M.H.P., a minor child. STATE of Washington Department of Social and Health Services, Petitioner, v. Paul PARVIN and Leslie Bramlett, Respondents.

Trisha L. McArdle, Ofc. of the Atty. Gen., Soc. & Hlth. Svcs. A.g. Office, Attorney at Law, Seattle, WA, Anne Elizabeth Egeler, Office of the Attorney General, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, for Petitioner.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Respondents.

Kathryn Ann Barnhouse, King County CASA Program, Kathleen Carney Martin, Dependency CASA Program, Kent, WA, Paul Spencer Graves, Eric B. Wolff, Perkins Coie LLP, Seattle, WA, Counsel for Guardian Ad Litem.

Katherine George, Harrison–Benis LLP, Seattle, WA, amicus counsel for Allied Daily Newspapers of Washington.

Katherine George, Harrison–Benis LLP, Seattle, WA, for amicus counsel for Washington COAlition for Open Government.

WIGGINS, J.

¶ 1 The Department of Social and Health Services (Department) and Diana Farrow, the court appointed special advocate (CASA) for dependent minor M.H.P., appeal from an order of the King County Superior Court denying their motion to unseal several sets of motions and orders. The underlying documents at issue are motions filed by M.H.P.'s parents to obtain public funding for expert services in connection with proceedings to terminate their parental rights. The court granted the motions ex parte without holding a hearing or providing notice to the other parties or to the public. After the CASA discovered the disputed orders, the Department moved to unseal the disputed documents. The superior court denied the Department's motion and the Court of Appeals affirmed.

¶ 2 We hold that the superior court's ex parte sealing practice and the sealing of the disputed documents violate the court rules and Washington Constitution article I, section 10. Specifically, the indiscriminate ex parte sealing of documents pertaining to motions for public funding for expert services violates General Rule (GR) 15 ; the justifications advanced by the superior court do not warrant creating a blanket exemption from GR 15 in parental termination cases; and in its memorandum opinion explaining the disputed orders, the superior court did not apply (or even mention) the Ishikawa1 factors that all courts must analyze before granting a motion to seal. For these reasons, we reverse and remand.

BACKGROUND

¶ 3 M.H.P. is the son of Leslie Bramlett and Paul Parvin. He was less than two years old when these dependency proceedings commenced. M.H.P.'s parents experienced repeated episodes of mental illness, substance abuse, and incarceration in the years preceding and following M.H.P.'s birth. The dependency proceedings commenced after Bramlett, accompanied by M.H.P., arrived at an emergency room (ER) showing signs of paranoia and threatening the ER staff. M.H.P. was removed from his parents' care; he remained in the custody of the State until a guardianship order was entered more than two years later.2 Two months after M.H.P. was removed from his parents' custody, the King County Superior Court found M.H.P. dependent through agreed orders with both parents. Later the same month, the Department commenced proceedings to terminate Bramlett's and Parvin's parental rights.

¶ 4 The superior court's case schedule included a deadline for the completion of discovery, including an exchange of witness lists. More than a month after that deadline passed and approximately six weeks before the original trial date, Bramlett filed an ex parte motion seeking public funds to retain expert services and a declaration from Bramlett's attorney supporting the motion. The motion was accompanied by an order granting the motion for public funding signed by the head of the King County Office of Public Defense (now the King County Department of Public Defense). Also accompanying the motion and order were an ex parte motion to seal and an ex parte motion for a protective order; a King County superior court judge signed orders granting both of those motions. M.H.P.'s parents filed two more such motions for expert services with accompanying motions to seal during the following two months. As before, the head of the King County Office of Public Defense signed orders granting the request for public funds and the judge signed orders sealing the motions, orders, and attached documents. The court granted and entered at least one more set of similar motions and orders after the trial court issued its opinion upholding this ex parte practice.

¶ 5 The declarations and other materials attached to the motions for expert funding included background information regarding the prospective experts and also some information regarding the types of evaluations and services the experts would perform. Two of the motions called for an expert to perform a "parenting" or "parent-child" observation. The court never disclosed the existence, much less the content, of these motions or orders to the CASA, the State, or the public.

¶ 6 The CASA's counsel inadvertently discovered the orders when reviewing the legal file while preparing for trial. She discovered similar ex parte motions and orders in the files of several other parental termination cases. After discovering the sealed documents, the Department filed a motion to show cause as to why the sealing orders should not be vacated and the ex parte documents unsealed in each of the 11 cases in which the ex parte motions and orders had been discovered. The CASA filed a response supporting the Department's motion.

¶ 7 The judge who had signed all of the disputed sealing orders then issued a memorandum opinion denying the Department's motion and upholding the ex parte sealing practice. The opinion did not discuss the Ishikawa factors, which we have held courts must use before granting a motion to seal. Instead, the superior court justified this procedure by asserting that the ex parte procedure was necessary to protect the work product of indigent parents' attorneys. The trial court analogized parental termination cases to criminal cases, in which CrR 3.1(f) permits defendants to file ex parte motions for expert services. The court asserted that parents in termination cases have an "identical" need to protect their work product as do criminal defendants. After the judge denied the Department's motion for clarification, the petitioners appealed. The Department also filed notices of appeal in several other cases that were the subject of the trial court's opinion and order; according to the Department, those appeals have been stayed pending our decision in this case.

¶ 8 The trial date was continued several times at the request of one or both of the parents. After one such continuance, an agreed order withdrew the termination petition in favor of a guardianship petition. Less than two weeks before the trial date and more than eight months after the discovery deadline, Bramlett filed an amended witness list that included two previously undisclosed witnesses. One of those two witnesses—Dr. Carmela Washington–Harvey—had been the subject of two of the disputed ex parte sealing motions. The Department and the CASA moved to exclude those witnesses and the trial court granted that motion.

¶ 9 After trial, the court granted the guardianship petition and dismissed the dependency. That determination was the subject of a separate appeal by the parents, who challenged the trial court's exclusion of the two belatedly disclosed witnesses. See In re Dependency of M.P., 185 Wash.App. 108, 111, 340 P.3d 908 (2014). After we granted review in the instant case, the Court of Appeals reversed the trial court's guardianship determination and remanded for a new trial, holding that the trial court failed to conduct an adequate analysis of the Burnet3 factors before excluding the witnesses.4

¶ 10 The Court of Appeals, Division One, affirmed in an opinion by Chief Judge Spearman. Dep't of Soc. & Health Servs. v. Parvin, 181 Wash.App. 663, 682–83, 326 P.3d 832 (2014). The majority held that applying GR 15(c) to indigent parents in termination proceedings would violate parents' due process rights. Id. at 666, 326 P.3d 832. The majority also held that even though the trial court never engaged in an Ishikawa analysis, the record demonstrated that the Ishikawa factors had been satisfied. Id. at 676–80, 326 P.3d 832. In a vigorous dissent, Judge Becker asserted that both the superior court and the Court of Appeals majority failed to consider the countervailing interests at stake. Id. at 687–88, 326 P.3d 832. She also criticized the majority for glossing over the possibility that redaction could have adequately protected the parents' rights. Id. at 684–86, 326 P.3d 832 (Becker, J., dissenting).5

STANDARD OF REVIEW

¶ 11 We review a trial court's decision to seal records for an abuse of discretion. Hundtofte v. Encarnacion, 181 Wash.2d 1, 13, 330 P.3d 168 (2014). It is an abuse of discretion for a court to use an incorrect legal standard. Id. at 9, 330 P.3d 168. Determining the appropriate legal standard and assessing whether the trial court applied the correct legal standard are both issues of law that we review de novo. Id. at 13, 330 P.3d 168 ; Rufer v. Abbott Labs., 154 Wash.2d 530, 540, 114 P.3d 1182 (2005). "[I]f the trial court rested its decision on an improper legal rule, the appropriate course of action is to remand to the trial judge to apply the correct rule." Dreiling v. Jain, 151 Wash.2d 900, 907, 93 P.3d 861 (2004).

¶ 12 We review both the interpretation and the application of court rules de novo. State v. McEnroe, 174 Wash.2d 795, 800, 279 P.3d 861 (2012) ; Hundtofte, 181 Wash.2d at 13, 330 P.3d 168. Thus, we review de novo whether the trial court's ex parte sealing practice can be reconciled with GR 15. The constitutionality of court rules is likewise a question...

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