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In re Dependency of M.P.

Court of Appeals of Washington, Division 1

December 22, 2014

In the Matter of the Dependency of M.P. the Department of Social and Health Services, Respondent ,
v.
Paul Parvin et al., Appellants

Oral Argument September 12, 2014

Appeal from King County Superior Court. Docket No: 11-7-02455-3. Judge signing: Honorable James a Doerty. Judgment or order under review. Date filed: 11/19/2012.

Sarah McNeel Hrobsky (of Washington Appellate Project ); and Dana M. Nelson (of Nielsen Broman & Koch PLLC ), for appellants.

Robert W. Ferguson, Attorney General, and Trisha L. McArdle, Assistant, for respondent.

Concurring: James Verellen, Michael J. Trickey.

OPINION

Page 909

[185 Wn.App. 111] Michael S. Spearman, 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 Burnet [1] 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

Page 910

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 [185 Wn.App. 112] 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 [185 Wn.App. 113] 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. ...


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