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In re Dependency of S.K-P.

Court of Appeals of Washington, Division 2

August 8, 2017

In the Matter of the Dependency of S.K-P.

          Worswick, P.J.

         SK-P asks us to determine (1) whether children in dependency proceedings have a categorical procedural due process right to court-appointed counsel under article I, section 3 of the Washington Constitution and the Fourteenth Amendment to the United States Constitution, and (2) if not, whether a case-by-case application of the Mathews[1] balancing test is appropriate to evaluate a dependent child's request for the appointment of counsel. We hold that children in dependency proceedings do not have a categorical due process right to court-appointed counsel and that juvenile courts should use the Mathews balancing test when evaluating a dependent juvenile's request for court-appointed counsel. We affirm.

         FACTS

         I. Procedural Facts

         SK-P entered foster care when she was seven years old. During her dependency proceedings, SK-P requested legal representation, and Pierce County intervened for the limited purpose of opposing SK-P's request for the appointment of counsel based on Pierce County's financial interests. The juvenile court denied SK-P's request after applying the Mathews test. SK-P sought, and we granted, discretionary review.

         The same day we granted review, the Department of Social and Health Services (the Department) dismissed SK-P's dependency. Although this appeal is moot due to the dependency's dismissal, it involves matters of continuing and substantial public interest. We agreed to review two issues: first, whether the Washington Constitution mandates the appointment of counsel for all children in dependency proceedings; and second, if children do not have a categorical right to court-appointed counsel in dependency proceedings, whether the juvenile court should apply the Mathews test when evaluating a dependent child's request for court-appointed counsel.[2] Ruling Den. Court-Initiated Mot. to Dismiss, In re Dependency of S.K-R, No. 48299-1-II, at 3 (Wash.Ct.App. May 25, 2016).

         II. Dependency Proceedings Generally

         When the Department receives a report that a child is alleged to have been abused, neglected, or abandoned it is required to investigate. RCW 26.44.050. If the Department determines that the "child's health, safety, and welfare will be seriously endangered if [he or she is] not taken into custody" and there is potential "imminent harm" to the child, the Department may take the child into protective custody under RCW 13.34.050. If the child is taken into protective custody, the Department then files a petition for dependency of the child. WAC 388-15-041. The juvenile court is required to hold a shelter care hearing within 72 hours to determine whether, under the Department's petition, it is in the "best interests of the child" to return home or remain in state custody. RCW 13.34.065(1)(a).

         At the initial shelter care hearing, the juvenile court determines the child's placement and whether the child can be safely returned home in an in-home placement conditioned on certain services being provided to the child and parent or in an out-of-home placement with a suitable relative, guardian, or foster care provider. RCW 13.34.065(4). A child who has been removed from his or her home has a right to preferential placement with a relative or known suitable adult. RCW 13.34.130(5). The court also determines the nature of any contact the child may have with his or her parents and siblings under RCW 13.34.065(5)(a).

         If a parent contests whether a child is "dependent, " the juvenile court must hold an evidentiary "fact-finding hearing" to determine whether a continued dependency is warranted. RCW 13.34.110. At the hearing, the State bears the burden of establishing by a preponderance of the evidence that the child meets one of the statutory definitions of dependency.[3] In re Dependency of Schermer, 161 Wn.2d 927, 942, 169 P.3d 452 (2007).

         If the court finds the child to be dependent, it must enter an order determining, among other things, placement of the child, visitation with parents and siblings, the school the child will attend, and a plan for services tailored to correct any identified parental deficiencies. RCW 13.34.130. Typically, the juvenile court also determines the needs of the child, the parents' ability to meet those needs, and what services can be provided to assist the parents in meeting the needs of the child. RCW 13.34.130(1).

         A dependency proceeding includes ongoing review hearings to assess the status of the case and whether the needs of the child are being met, whether the parental deficiencies are being addressed, and what progress each parent has made or is required to make in order for the court to allow the child to safely return home. RCW 13.34.138(1). The review hearings occur until either the court orders that the child return home and dismisses the dependency, orders a guardianship for the child, enters an order terminating parental rights and the child is legally adopted, or the child ages out of the foster care system. RCW 13.34.138(1).

         If the Department determines that termination of parental rights is appropriate, it files a petition seeking termination under a new cause number. RCW 13.34.132. Assuming the termination goes to trial, the Department must prove the parent is unfit such that the legal right of a parent to the care, custody, and control of her child should be terminated. RCW 13.34.180(1), .190.

         III. Historical Right to Appointed Counsel in Dependency & Termtnation Proceedings

         Currently in Washington, children do not have a categorical due process right to court-appointed counsel in dependency or termination proceedings. Statutory law and court rules grant juvenile courts the discretion to decide whether to appoint counsel to a child during dependency proceedings. RCW 13.34.100(7); JuCR 9.2(c)(1).[4] In 2010, the legislature specifically required that children 12 years and older subject to dependency proceedings be informed of their right to request counsel and that the children be asked every subsequent year whether they wish to exercise that right. RCW 13.34.100(7).[5] Additionally, some counties routinely appoint counsel for children in dependency proceedings.[6] Moreover, all Washington juvenile courts must appoint counsel for every child whose parents' parental rights have been terminated for six months, regardless of the child's age. RCW 13.34.100(6).

         In 2012, our Supreme Court addressed whether the Fourteenth Amendment compels the appointment of counsel to children in termination proceedings.[7] In re Dependency of M.S.R, 174 Wn.2d 1, 20, 271 P.3d 234 (2012). The court recognized that children involved in termination proceedings[8] have vital liberty interests at stake and may be constitutionally entitled to court-appointed counsel to protect those interests, but it held that whether a child is constitutionally entitled to court-appointed counsel must be decided on a case-by-case basis. M.S.R, 174 Wn.2d at 5.

         On the other hand, Washington has long recognized parents' fundamental liberty interests in the right to parent their children, which compels a constitutional due process right to court-appointed counsel for all parents in dependency and termination proceedings. See In re Welfare of Lustier, 84 Wn.2d 135, 138, 524 P.2d 906 (1974); see also In re Welfare of Myricks, 85 Wn.2d 252, 254, 533 P.2d 841 (1975). In Lustier, our Supreme Court held that both article I, section 3 of the Washington Constitution and the Fourteenth Amendment to the United States Constitution required appointment of counsel for parents subject to termination of parental rights proceedings. 84 Wn.2d at 138.

         The following year, in Myricks, 85 Wn.2d at 254-55, our Supreme Court extended the right to court-appointed counsel for parents in dependency proceedings on the same grounds. Two years later, in 1977, the legislature codified parents' right to counsel during dependency and termination proceedings. RCW 13.34.090. In 1981, the United States Supreme Court decided Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), which held that parents facing termination of their parental rights do not have a categorical right to the court-appointed counsel under the Fourteenth Amendment. Our Supreme Court has since recognized that Lassiter "overruled the federal constitutional component" of Lustier and Myricks. In re Dependency of M.H.P., 184 Wn.2d 741, 759, 364 P.3d 94 (2015).

         Although the federal constitutional underpinnings of Lustier and Myricks were abrogated by Lassiter, 452 U.S. at 31, our courts, without conducting a Gunwall[9] analysis, have recognized their continued validity on state constitutional grounds.[10] See In re Dependency of G.G. Jr., 185 Wn.App. 813, 826 n.18, 344 P.3d 234, review denied, 184 Wn.2d 1009 (2015) (Stating, "Our courts have recognized that 'the full panoply of due process safeguards applies to deprivation hearings' and that the right to counsel in parental termination proceedings derives from constitutional due process provisions. . . . Lassiter does not diminish the vitality of the due process based right to counsel in termination proceedings.") (internal quotation marks omitted) (quoting In re Welfare of J.M., 130 Wn.App. 912, 921, 125 P.3d 245 (2005)); see also In re Marriage of King, 162 Wn.2d 378, 386, 174 P.3d 659 (2007) (citing Myricks to distinguish between the "fundamental parental liberty interest at stake in a termination or dependency proceeding" and the liberty interest at stake in a dissolution proceeding); see also In re Dependency of Grove, 127 Wn.2d 221, 237, 897 P.2d 1252 (1995) (citing Luscier and Myricks as examples of "fundamental liberty interest" protected by due process); see also M.H.P., 184 Wn.2d at 759; see also In re Welfare of Hall, 99 Wn.2d 842, 846, 664 P.2d 1245 (1983) (holding that the right to counsel in child deprivation proceedings finds its basis in state law). Given the consistency with which our courts have continued to affirmatively cite Luscier and Myricks, we assume their continued validity.

         It is against this background that we consider SK-P's claims.

         ANALYSIS

         SK-P argues that children in dependency proceedings have a categorical right to appointed counsel under the due process clauses of both the Washington and United States Constitutions. We disagree and hold that neither the Washington nor the United States Constitutions require juvenile courts to appoint counsel for children who are the subject of dependency proceedings.

         SK-P, supported by amici, contends that the current dependency system is constitutionally inadequate because it does not guarantee court-appointed counsel to all children in dependency proceedings.[11] Whether a statutory scheme is constitutional is a question of law that we review de novo. M.S.R., 174 Wn.2d at 13. "We presume that statutes are constitutional, and the challenger bears the burden of showing otherwise." M.S.R, 174 Wn.2d at 13.

         I. GUNWALL

         In Gunwall, our Supreme Court responded to critiques that state appellate courts' frequent reliance on individual rights provisions of state constitutions was leading to result-oriented decisions. See also Hugh D. Spitzer, New Life for the "Criteria Tests" in State Constitutional Jurisprudence: "Gunwall is Dead-Long Live Gunwall!", 3 7 RUTGERS L. J. 1169 (2006). The Gunwall court explained, "The difficulty with such decisions is that they establish no principled basis for repudiating federal precedent and thus furnish little or no rational basis for counsel to predict the future course of state decisional law." Gunwall, 106 Wn.2d at 60. The court continued, "[S]tate courts should be sensitive to developments in federal law. Federal precedent in areas addressed by similar provisions in our state constitutions can be meaningful and instructive." 106 Wn.2d at 60.

         In Gunwall, the court articulated six nonexclusive neutral factors relevant in determining whether, in a given context, the Washington Constitution should be given an interpretation independent from that given the United States Constitution: (1) the textual language, (2) differences in the texts, (3) constitutional history, (4) preexisting state law, (5) structural differences, and (6) matters of particular state or local concern. 106 Wn.2d at 58.

         When presented with a claim that a provision of the Washington Constitution provides different protection than is provided under a provision of the United States Constitution, we first determine whether the state provision should be given an independent interpretation from the federal provision by analyzing the six nonexclusive, neutral Gunwall factors. Madison v. State, 161 Wn.2d 85, 93, 163 P.3d 757 (2007). If we determine that an independent analysis is warranted, we then analyze '"whether the provision in question extends greater protections for the citizens of this state.'" Madison, 161 Wn.2d at 93 (quoting State v. McKinney, 148 Wn.2d 20, 26, 60 P.3d 46 (2002)).

         SK-P argues that we need not conduct a Gunwall analysis before engaging in a state constitutional analysis because there is no federal jurisprudence addressing a child's right to counsel in the dependency context. She argues that a Gunwall analysis is reserved for situations where there is already federal jurisprudence on point forcing the question of whether the parallel Washington constitutional provision affords greater protection.

         SK-P correctly notes that the United States Supreme Court has not addressed a child's right to counsel in the dependency context. But Washington courts have never required that there be federal precedent precisely on point before engaging in a Gunwall analysis, and we decline to take such an approach for the first time here. See King, 162 Wn.2d at 392; see also Bellevue Sch. Dist. v. E.S, 171 Wn.2d 695, 710, 257 P.3d 570 (2011); see also Spitzer, supra at 1170 ("[Gunwall] has proven to be a useful step-by-step process for briefing and analyzing any state constitutional provision, regardless of whether that provision has a federal analog."). Moreover, when properly and thoroughly applied, a Gunwall analysis assists courts in viewing an issue from all angles, taking into consideration related federal jurisprudence and our state's statutory, common, and constitutional law. "[T]he Gunwall factors parallel inquiries made when interpreting a state constitutional provision to determine the extent of the protection it provides in a particular context." Madison, 161 Wn.2d at 95-96.

         Because the parties have adequately briefed the Gunwall factors, we consider whether we should analyze article I, section 3 independently from the Fourteenth Amendment in this context. See Malyon v. Pierce County, 131 Wn.2d 779, 791, 935 P.2d 1272 (1997). We hold that an independent state constitutional analysis is appropriate here.

         A. Factors 1 & 2: Text of the Parallel Provisions

         We generally examine the first two Gunwall factors, the textual language and any differences in text, together because they are closely related. State v. Jorgenson, 179 Wn.2d 145, 152-53, 312 P.3d 960 (2013). The Washington Constitution's due process clause provides, "No person shall be deprived of life, liberty, or property, without due process of law." Wash. Const. art. I, § 3. The parallel provision in the federal constitution provides in pertinent part, "No state shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1.

         Because there is no significant difference between the language used in the parallel provisions of the state and federal due process clauses, these factors do not support an independent state constitutional analysis.[12] State v. Foster, 135 Wn.2d 441, 459, 957 P.2d 712 (1998).

         B. Factor 3: State Constitutional History

         The "third Gunwall factor directs the court to determine whether state constitutional history and common law reflect an intention to confer greater protection from the state government than has been afforded by the federal constitution." Foster, 135 Wn.2d at 459-60.

         SK-P argues that protecting individual rights lies at the heart of our state constitution and that it has historically provided greater protections for the welfare of children than the federal constitution. She contrasts the Washington Constitution's two references to the care of children, in article IX, section 1 and article XIII, section 1, with the federal constitution's silence on the welfare of children. Article IX, section 1 provides that it is the "paramount duty of the state to make ample provision for the education of all children residing within its borders." Article XIII, section 1 requires the state to foster and support institutions for the benefit of youth with physical or developmental disabilities or mental illness and "such other institutions as the public good may require." Although these provisions address children's needs, they are unrelated to children's due process rights.

         Moreover, article I, section 3 was adopted without modification or debate. Journal of the Washington State Constitutional Convention, 1889, (Beverly Paulik Rosenow ed. 1962). At the time, the federal due process clause had a nearly 100-year history. As it pertains specifically to article I, section 3, there is little constitutional history supporting an independent state constitutional analysis.

         Ultimately, this third factor does not weigh in favor of an independent state constitutional analysis.

         C. Factor 4: Preexisting State Law

         In applying factor four of the Gunwall criteria, we focus on the context in which the issue involving the state constitutional right is raised. Foster, 135 Wn.2d at 461. Here, we examine preexisting state law relevant to a ...


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