State v. Parvin
| Decision Date | 09 June 2014 |
| Docket Number | No. 68772–7–I.,68772–7–I. |
| Citation | 326 P.3d 832,181 Wash.App. 663 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, M.H.P., a Minor, Petitioners, v. Paul PARVIN and Leslie Bramlett, Respondents. |
OPINION TEXT STARTS HERE
Trisha L. McArdle, Office of the Atty. General, Social & Health Svcs A.g. Office, Attorney at Law, Seattle, WA, for Petitioners.
Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Respondents.
Kathleen Carney Martin, Dependency CASA Program, Kathryn Ann Barnhouse, King County CASA Program, Kent, WA, for Guardian Ad Litem.
¶ 1 In termination of parental rights cases, indigent parents represented by appointed counsel must petition the government for public funding for expert witnesses and other services necessary in the course of their defense. In King County Superior Court, parents may move the court ex parte for such funding, as well as for orders to seal the moving documents. The Department of Social and Health Services (the State) asserts that this ex parte motion practice improperly denies the other parties notice and opportunity to be heard on the motions. The State contends that this practice violates GR 15, which generally governs the sealing of court records. The State also contends that this practice violates the right of the public to open court proceedings and improperly applies a criminal court rule, CrR 3.1(f), to civil cases.
¶ 2 We conclude that the notice requirements of GR 15(c)(1) do not adequately safeguard the due process guarantees of indigent parents involved in termination proceedings seeking public funding for expert and other services. Accordingly, we hold that motions for such services, including motions to seal the moving papers, are exempt from the notice requirements of the rule. We further hold that the trial court's orders to seal records in this case meet the standard set forth in Dreiling v. Jain, 151 Wash.2d 900, 93 P.3d 861 (2004), which adopts the well-established analytical approach announced in Seattle Times v. Ishikawa, 97 Wash.2d 30, 640 P.2d 716 (1982). Lastly, we hold that the trial court was within its discretion to adopt the CrR 3.1(f)ex parte motion procedure as the proper method for the parents to seek public funding for expert services and orders to seal because no other statute or enforceable court rule prescribed the mode of proceeding. We affirm the ruling of the trial court.
¶ 3 Paul Parvin and Leslie Bramlett are the parents of M.H.P. At the time of trial, four-year-old M.H.P. had already been found dependent and removed from his parents, based on their mental illness, substance abuse, history of violence, and resulting neglect of the child. The State filed a petition for termination of Parvin and Bramlett's parental rights on August 31, 2011.
¶ 4 The court issued a case schedule in the termination proceeding, which established the deadline for the exchange of witness lists and a discovery cutoff in December 2011. After all discovery deadlines had passed, the parents brought multiple ex parte motions for public funding for expert defense services and orders to seal the moving papers.1 The parents never advised the court of the applicable discovery deadlines or requested that they be extended. The record does not disclose whether the judge who heard the ex parte motions and entered the orders to seal was aware of the discovery deadlines in the case.
¶ 5 Neither of the other parties to the matter, the State and the child's Court Appointed Special Advocate (CASA), was provided notice of these motions or given the opportunity to be heard in opposition. The ex parte orders were only discovered by the CASA when reviewing the legal file after the parents made a joint motion to continue the trial date.
¶ 6 On March 15, 2012, the State challenged the ex parte orders in this case, along with similar orders in four other cases involving juvenile dependency and termination of parental rights. The State brought a motion to vacate the ex parte orders on the basis of GR 15. The State also requested identification of other cases in which this ex parte motion practice had occurred so that relief could be sought. The State's motion was denied in a memorandum opinion on April 10, 2012, as was its subsequent requests for clarification and entry of an order containing findings of fact and conclusions of law.
¶ 7 In May 2012, after the trial court's ruling, the mother sought additional ex parte orders appointing another expert and sealing the documents supporting her motion. As before, neither the State nor the child's CASA was provided notice of these motions.
¶ 8 On August 14, 2012, two weeks before trial, the mother's counsel served the State with a witness list that, for the first time, identified Dr. Makiko Guji as an expert witness for the mother. The mother asserted that Dr. Guji had treated her for the past year, and would testify that she had made good progress in mental health treatment and that her medications controlled her symptoms. No information verifying Dr. Guji's expected testimony was provided to the State at that time.
¶ 9 On Friday, August 24, 2012, just one business day before trial was set to start, a second previously undisclosed defense expert was identified when counsel for the mother sent the State an evaluation by Dr. Carmela Washington–Harvey. This was the first time the State learned that Dr. Washington–Harvey had evaluated the mother and would be called as an expert witness.
¶ 10 The State filed a motion, joined by the CASA, to exclude the testimony of Dr. Guji and Dr. Washington–Harvey. The trial judge granted the motion. In his ruling, the judge explained that, although the defense had the right to seek expert funding ex parte, it still had an obligation to timely disclose the experts when it became clear they would testify.
¶ 11 The State seeks review of the order denying its motion to vacate the ex parte orders, as well as the order denying the State's motion for clarification and entry of findings of fact.2
¶ 12 The issue in this case is whether indigent parents involved in termination proceedings may move the court ex parte for orders authorizing the expenditure of public funding to obtain the assistance of experts and to seal documents regarding those motions without notice to other parties.
¶ 13 GR 15 generally governs the procedure for sealing court records. King County has adopted Local General Rule (LGR) 15 which provides further guidance in civil cases.3 Under CrR 3.1(f), attorneys representing indigent criminal defendants may move the court ex parte to obtain expert or other services necessary to the defense, along with orders to seal the moving papers; these ex parte motions are exempt from the notice requirements of GR 15. GR 15(c)(1).4
¶ 14 King County has adopted the ex parte motion practice outlined at CrR 3.1(f) as a means for attorneys of indigent parents to obtain expert services and orders to seal the moving papers in dependency and termination cases. The State asserts that this practice is improper because it: (1) unfairly denies the other parties notice and opportunity to be heard under GR 15, (2) violates the public's right to open proceedings, and (3) improperly applies criminal rules to civil cases. The parents do not dispute that the ex parte motion practice at issue in this case does not comply with GR 15. They argue however, that application of the rule to the motions at issue impinges on their due process rights to effective assistance of counsel and a fair trial. They contend that providing notice to the State of experts with whom they intend to consult, in advance of a determination to call the expert as a witness, compromises their ability to prepare for trial and causes them to be treated differently than parents with the means to obtain those services without public assistance. For the reasons set forth below, we agree with the parents.
¶ 15 Resolution of this case requires interpretation of a court rule, which we review de novo. State v. McEnroe, 174 Wash.2d at 800, 279 P.3d 861.
¶ 16 In determining the precise nature of due process rights to which parents in termination proceedings are entitled and whether GR 15(c)(1) unduly infringes upon those rights, we balance: (1) the private interest affected by the proceeding, (2) the risk of error created by the State's chosen procedure, and (3) the countervailing governmental interest which militates against the use of the challenged procedure. In re Welfare of S.E., 63 Wash.App. 244, 249–50, 820 P.2d 47(1991).
¶ 17 We first consider the private interest affected by the termination proceeding. Here, it is indisputable that the interest of the parents is great. It is well-established that parents have a fundamental liberty interest in the custody and care of their children, protected by the due process requirements of the Fourteenth Amendment and article I, section 3 of the Washington State Constitution. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Skinner v. State of Okla. ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). overruled in part on other grounds in Edelman v. Jordan, 415 U.S. 651, 652, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); In re Dependency of J.B.S., 123 Wash.2d 1, 12, 863 P.2d 1344 (1993); In re Luscier, 84 Wash.2d 135, 139, 524 P.2d 906 (1974). In termination cases, this liberty interest gives rise to the full panoply of due process safeguards. In re Grove, 127 Wash.2d 221, 232, 897 P.2d 1252 (1995); In re Luscier, 84 Wash.2d at 137, 524 P.2d 906, abrogated in part by Lassiter v. Dep't of Soc. Servs. of Durham County, N. C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). These safeguards include the right to a fair trial and the right to effective legal assistance. RCW 10.101.005; In re Welfare of J.M., 130 Wash.App. 912, 922, 125 P.3d 245 (2005); In re Luscier, 84 Wash.2d at 139, 524 P.2d 906.5
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State v. Parvin (In re M.H.P.)
...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......
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