In re Dependency of E.H.

This opinion was filed for record
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FIITE
IN CLERKS OFFICE
RJPRraE CCUST. STATE OF WASHINSTOfl (3^^ H(2,.^
c-z_jDCLflUOI8 SUSAN L. CARLSON
SUPREME COURT CLERK
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter ofthe Dependency ofE.H.
a minor child. No. 94798-8
(consolidated with No. 94970-1)

En Banc
In the Matter ofthe Dependency of S.K.-P.,
a minor child. Filed OCX 0 4 2018

OWENS,J. — Dependency proceedings are not uniform, although each creates

a tension between the State's ability to protect children as parens patriae and the

fundamental familial rights ofthe people who are involved in the proceedings. In

some instances, such as when the parents agree to the dependency or when the State

does not assume legal or physical custody ofthe child, this tension will be lessened.

In other instances, where the dependency is contested or when the State assumes

custody of a child, the tension may be heightened. Accordingly, the amount of

process due to children in dependency proceedings will vary with each case.

The legislature gave children a discretionary right to counsel in dependency

proceedings in RCW 13.34.100(7)(a). The petitioners argue that our constitution
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

requires that all children be appointed counsel at all stages ofthe dependency

proceedings. For the following reasons, we find that RCW 13.34.100(7)(a) is

adequate under article I, section 3 ofthe Washington Constitution. Further, we find

that in this case the trial court did not abuse its discretion in denying a motion to

appoint counsel. Finally, in light of amendments to GR 15, we hold that confidential

juvenile court records remain sealed and confidential on appeal, recognizing the

abrogation ofIn re Dependency ofJ.B.S., 122 Wn.2d 131, 856 P.2d 694(1993).

Accordingly, we grant the joint motion to seal.

FACTS AND PROCEDURAL POSTURE

This matter involves two unrelated juveniles, E.H. and S.K.-P., in unrelated

dependency proceedings. R.R., E.H.'s mother, and S.K.-P. both challenge the validity

ofRCW 13.34.100's discretionary standard for appointment of counsel for children in

dependency proceedings and seek instead a categorical right to counsel for all children

in dependency proceedings. We consolidated these cases to address that issue. R.R.,

S.K.-P., and the Department of Social and Health Services (Department)jointly

moved to seal the appellate records and to use the parents' and children's initials in

publicly filed documents. R.R. additionally challenges the juvenile court's denial of

her motion for counsel for E.H.

In re Dependency ofE.H.
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

In 2013, E.H.'s mother, R.R., was sent to prison in California with a scheduled

release date in July 2019. She arranged for a family friend to live in the family home

and care for her six children while she was incarcerated. Six months after assuming

responsibility for the children, the friend sent three ofthe children (not including

E.H.)to live with another friend, who physically and emotionally abused the children

in his care. R.R. was not aware ofthis abuse as it was occurring.

In May 2014, the children moved into the home of another family friend, and

the Department filed a dependency petition. R.R. entered an agreed order of

dependency as to all six of her children in September 2014. E.H. was six years old

when the dependency petition was filed, and it took about eight months to find a

stable placement. E.H. and the siblings were placed in foster care in December 2014.

E.H. was sent to three respite placements over the course ofthree months. Finally, on

January 30, 2015, E.H. was placed in E.H.'s current foster home. E.H. has stated a

strong desire to stay in the current placement until R.R. can return from prison.

E.H. has a court-appointed special advocate(CASA)who fulfills the role of a

guardian ad litem(GAL)by representing and advocating for E.H.'s best interests

throughout the dependency proceedings and informing the court of E.H.'s stated

interests. At a February 2016 permanency planning hearing, the CASA supported a

primary plan of terminating R.R.'s parental rights so that E.H. could be adopted. In

May 2016, the CASA added guardianship as a secondary possibility based on E.H.'s
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

stated interest in family reunification, noting that E.H.'s current foster placement was

a good environment and that the foster parents were willing to serve as long-term

guardians. However, the CASA continued to advocate for termination of R.R.'s

parental rights based on the CASA's assessment of E.H.'s best interests.

On August 17, 2016, R.R. filed a motion for appointment of counsel on E.H.'s

behalf. A superior court commissioner denied the motion and the superior court

denied the mother's motion to revise in a memorandum opinion. The court found no

basis for construing the state due process protection more broadly than its federal

counterpart after analyzing the Gunwall factors and therefore considered only whether

the Fourteenth Amendment to the United States Constitution required appointment of

counsel. State v. Gunwall, 106 Wn.2d 54,62, 720 P.2d 808 (1986).

Beginning from the premise that there is no federal due process right to

appointed counsel for all children in dependency cases, the court analyzed the

Mathews factors as applied to E.H.'s case individually. See Mathews v. Eldridge, 424

U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976). The court recognized the importance

ofthe interests at stake, but also noted E.H.'s CASA was actively involved in E.H.'s

case and had been forthright in conveying E.H.'s stated preferences to the court, even

though the CASA believed those preferences were contrary to E.H.'s best interests.

Critically, although E.H.'s CASA believed that termination of R.R.'s parental rights

was in E.H.'s best interest and E.H. continued to desire reunification as a permanency
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

plan, at the time the motion for counsel was made termination was not an issue. The

issues being addressed at that 90 day review hearing related to visitation between E.H.

and B.H.'s siblings. E.H., E.H.'s CASA,and all persons present supported visitation.

The court thus saw "no benefit to [E.H.] in appointing counsel at this juncture" and

denied the motion to revise, noting that if the Department moved to terminate and

E.H. remained opposed to that position, the issue of appointment of counsel would be

revisited. Pet'r's Suppl. Br.(E.H.), J.A. at 10.

R.R. sought discretionary review. A commissioner at Division One ofthe

Court of Appeals denied review, and the Court of Appeals denied the mother's motion

to modify. This court granted the mother's motion for discretionary review and

consolidated this case with In re Dependency ofS.K.-P.

In re Dependency ofS.K.-P.

S.K.-P. and two half-siblings were removed from their home after allegations

of abuse. S.K.-P. was placed in S.K.-P.'s grandmother's home. Based on its most

recent investigation, the Department filed a dependency petition in November 2014,

when S.K.-P. was seven years old, and the court appointed S.K.-P. a GAL. In January

2015, S.K.-P.'s mother entered an agreed order of dependency, continuing S.K.-P.'s

placement with the grandmother. In February 2015, S.K.-P.'s GAL filed a report with

the court, stating that S.K.-P. reported no concerns with the placement and that

S.K.-P. has everything S.K.-P. needs and feels safe in the home. In July 2015,the
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

GAL reported that S.K.-P. was having regular visitation with both parents. In

September 2015, the court ordered that S.K.-P.'s mother could resume providing care.

Five days later, through an attorney who appeared for the limited purpose ofthe

motion only, S.K.-P. moved for appointed counsel. With the motion, S.K.-P.

submitted a declaration expressing a desire for maternal placement but challenging

visits by the father. The father had no relationship with S.K.-P. prior to the

dependency, and according to the grandmother, he was "known for illegal activity in

the community and for perpetrating domestic abuse against [S.K.-P.'s] mother."

Clerk's Papers (S.K.-P.) at 29. S.K.-P. had previously reported to the CASA

frightening thoughts of being removed and placed with the father. S.K.-P. therefore

declared,"I want an attorney to help me with these things and help tell the judge what

I want." M at 138.

S.K.-P.'s mother supported the motion, but the Department opposed it and

S.K.-P.'s GAL was neutral. The court held a hearing and then entered an order

denying the motion for counsel without prejudice. The trial court found that based on

the Mathews factors, there was no need to appoint counsel because S.K.-P.'s interests

were adequately safeguarded by the GAL and by S.K.-P.'s mother, who was

represented by counsel and whose interests aligned with S.K.-P.'s.

The Court of Appeals granted S.K.-P.'s motion for discretionary review, in

which she argued that all children have the right to attorneys in dependency
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

proceedings. On that same day, the Department dismissed S.K.-P.'s dependency

petition, and S.K.-P. was returned to the mother's custody. In re Dependency of

S.K.-P., 200 Wn. App. 86,92,401 P.3d 442(2017). On its own motion, the court

considered whether to dismiss the appeal as moot.

In light ofthis court's guidance in Sorenson v. City ofBellingham, 80 Wn.2d

547,496 P.2d 512(1972), the Court of Appeals deelined to dismiss and ultimately

held that children in dependency proceedings do not have a categorical right to

counsel. Instead, the Court of Appeals held that juvenile courts should continue to use

the Mathews balancing test to appoint counsel on a ease by case basis. S.K.-P., 200

Wn. App. at 92. S.K.-P. filed a petition for review, which this court granted, and

consolidated with/w re Dependency ofE.H., 189 Wn.2d 1030 (2017).

ISSUES

1. Is the mechanism for appointment of counsel for children contained

within RCW 13.34.100(7) sufficient to protect the due proeess rights of children in

dependency proceedings under article I, section 3 ofthe Washington Constitution?

2. Did the juvenile court abuse its discretion by denying the motion to

appoint counsel for E.H.?

3. Should the joint motion to seal the records ofthese consolidated cases be

granted?
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

ANALYSIS

1. Facial Procedural Due Process Challenge and the Right to Counsel

Our current statutory law grants children a discretionary right to counsel. A

child, a parent, a guardian, a caregiver, or the Department may petition the court to

appoint counsel at public expense to represent a child in a dependency proceeding.

RCW 13.34.100(7)(a). The court may also appoint an attorney on its own initiative.

Id. In 2012, this court addressed whether this discretionary right, along with the right

to appellate review, was sufficient under the United States Constitution's guaranty of

due process at termination proceedings. In re Dependency ofM.S.R., 174 Wn.2d 1,

20, 271 P.3d 234(2012). We are now tasked with answering whether RCW

13.34.100(7)(a) is sufficient at the dependency stages and under the state

constitution's corollary provision.

The appellants contend that the state due process clause is more protective than

its federal counterpart and that therefore M.S.R. does not control. See M.S.R., 174

Wn.2d at 20 n.l 1 (declining to address state constitutional claims). This opinion turns

first to our recent state precedent holding that in similar contexts, article I, section 3

should not be interpreted independently of its federal counterpart before using the

Gunwall factors to support that conclusion.
 In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

A. This Court Should Consider Federal Precedent

i. Recent State Precedent

In 2011,this court applied the Gunwall factors to determine whether, in the

context of appointment of counsel for children in initial truancy hearings, the state due

process clause was broader than the federal counterpart. Bellevue Sch. Dist. v. E.S.,

171 Wn.2d 695, 714, 257 P.3d 570(2011). We found that it was not. Id. Turning to

federal guidance, we found that procedural due process did not require appointment of

counsel for children in initial truancy hearings, notwithstanding the potential of a

future contempt order stemming from the initial truancy hearing. Id.

More recently, in In re Welfare ofA. W., this court held that in the context of a

dependency guardianship proceeding,' "[t]he Washington Constitution, article I,

section 3, does not afford greater due process protection than the United States

Constitution." 182 Wn.2d 689, 701-02, 344 P.3d 1186(2015). In^. W., this court

held that the establishment of a dependency guardianship by a mere preponderance of

the evidence was adequate under both the federal and state due process clauses. Id. at

702-03.

'Dependency guardianships are statutory altematives to the termination of parental rights. In re
Guardianship ofD.S., 178 Wn. App. 681, 682, 317 P.3d 489(2013). They are one example of a
dependency proceeding (see JuCR 3.11). A.W. is a recent, well-reasoned, post-Gunwall
precedent where this court found that article I, section 3 should be interpreted consistent with its
federal counterpart in the specific context of dependency proceedings.
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

In 2012, this court addressed whether discretionary appointment of counsel for

children at termination hearings satisfied federal due process requirements. In re

Dependency ofM.S.R., 174 Wn.2d at 20. We unanimously found that the Mathews

test, applied on a case-by-case basis, provided adequate protection. Id. Although we

did not reach the state constitutional question due to waiver, see id. n.11, if we had

grave concerns about the article 1, section 3's independent protections, we could have

used our inherent authority to reach the issue (Alverado v. Wash. Pub. Power Supply

Sys., 111 Wn.2d 424, 429, 759 P.2d 427(1988){WPPSS))or directed the parties to

submit supplemental briefing on that issue.

Thus, our recent precedent supports a fmding that article 1, section 3 should not

be interpreted independently from its federal counterpart in the context of

appointment of counsel for children. The same outcome would be reached through

applying the Gunwall factors to this specific case.

ii. Gunwall Analysis

In Gunwall, we set forth the following nonexclusive factors to be considered

when determining whether a provision ofthe state constitution should be interpreted

independently of its corresponding federal constitutional provision:"(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.2dat58.

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In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

The first, second, and third factors all support applying federal precedent

because the texts are "nearly identical," and there is no legislative history supporting

an independent analysis. See State v. Wittenbarger, 124 Wn.2d 467, 480, 880 P.2d

517(1994); State v. Ortiz, 119 Wn.2d 294, 303, 831 P.2d 1060 (1992).

The fourth factor, preexisting state law regarding appointment of attorneys for

children, also does not support independent analysis. Historically, the statutory and

common law viewed the presence of a guardian as necessary to protect the interests of

children who were parties to an action for so long as they suffered under the

incapacity of infancy. See CODE OF 1881, ch. I, § 12. The common law incapacity of

minors persists, with two exceptions for actions relating to domestic violence and

child truancy. RCW 4.08.050. Thus, the general rule in Washington has historically

been that children cannot appear in court as parties and must instead appear by and

through guardians. This cuts against any finding that the state due process clause

expands protections for the appointment of attorneys for children, as historically

children have not had the right to appear in court at all, let alone with counsel.^

^ The dissent cites In re Dependency ofJ.H, 117 Wn.2d 460, All, 815 P.2d 1380(1991)in
support ofthe proposition that children are parties in dependency proceedings. Dissent at 15.
This court's statement that the "[IJegislature has determined that children involved in
dependency and termination actions are parties to those actions" was dicta and supported by a
citation to RCW 13.34.100. J.H., 117 Wn.2d at 477. When 7//. was published, RCW 13.34.100
stated in part that "[t]he court, at any stage of a proceeding under this chapter, may appoint an
attomey and/or guardian ad litem for a child who is a party to the proceedings...." Former
RCW 13.34.100(1979)(emphasis added). That statute was amended in 1993, after 7/7. was
published, and the above italicized portion was removed. RCW 13.34.100(1993). See Laura

11
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

The fifth factor, structural differences between the state and federal

constitution, supports independent interpretation ofthe state constitution in every

case. State v. Foster, 135 Wn.2d 441,458-59, 957 P.2d 712(1998)(plurality

opinion). The sixth factor, whether the matters are of particular state interest or local

concern, more accurately addresses whether there "appear[s] to be a need for national

uniformity" regarding the subject matter. Gunwall, 106 Wn.2d at 62. There is no

need for national uniformity for procedures in dependency hearings, and thus the sixth

factor favors independent state analysis.

On balance, the Gunwall factors support utilizing federal guidance. Only the

fifth and sixth factors support independent analysis. The other four factors, as well as

our recent precedent in the dependency context, holding that article I, section 3's

protections are coextensive with the Fourteenth Amendment's, support following

federal precedent regarding when a case-by-case approach to appointment of counsel

is appropriate. See A.W., 182 Wn.2d at 701-02.

B. Federal Guidance Supports a Case-bv-Case Approach

The purpose ofthe test set forth in Gunwall is to determine when and to what

extent'"[fjederal precedent in areas addressed by similar provisions in our state

Baird, Note, An Inconsistent Invitation: Am IInvited To Be a Party? How Not Affording Party
Status to Youth in Washington Dependency Hearings Can Be a Violation ofDue Process, 11
Seattle J. For Soc. Just. 715 (2013). This opinion does not take any position on whether
children are parties in dependency proceedings and notes the incapacity of infancy only to
support the conclusion that preexisting state law regarding appointment of attorneys for children
is not more protective than federal law.

12
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

constitutions can be meaningful and instructive.'" Gunwall, 106 Wn.2d at 60

(quoting State v. Hunt, 91 N.J. 338, 363,450 A.2d 952(1982)(Handler, J.,

concurring)). The United States Supreme Court addressed the issue of whether

indigent parents have a categorical right to representation in termination proceedings.

Lassiter v. Dep't ofSoc. Servs., 452 U.S. 18, 26, 101 S. Ct. 2153,68 L. Ed. 2d 640

(1981). In applying the case-by-case approach, the Lassiter Court relied on an earlier

ease, Gagnon, which addressed whether due process required the appointment of

counsel at public expense for indigent probationers in probation revocation hearings.

Id. (citing Gagnon v. Scarpelli, 411 U.S. 778,93 S. Ct. 1756, 36 L. Ed. 2d 656

(1973)). Although it addressed counsel in a different type of proceeding, the

reasoning in Gagnon supports applying the case-by-case approach in the dependency

setting.

In Gagnon,the Court identified a number offactors that were relevant in

finding a case-by-case approach appropriate. Gagnon,411 U.S. at 789. First, the

court noted the rehabilitative purpose of probation hearings and that the flexibility that

hearing boards are afforded in those proceedings allows them to exercise both a quasi-

judicial role as a fact finder and an equitable role in helping probationers reintegrate

into society. Id. at 786-89.

Second, in contrasting probation revocation hearings with criminal trials, the

Court noted that in criminal trials the State is represented by a prosecutor, that the

13
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

formal rules of evidence are in force, that there are a number of procedural rights that

may be waived by a criminal defendant if not timely raised, and that communicating

arguments to untrained jurors may be aided by the assistance of counsel. Id. In

probation revocation hearings, the State is represented not by a prosecutor but by a

parole officer, who has a dual interest in rehabilitation and protecting the public from

recidivism. Id. Likewise, evidentiary and procedural rules are relaxed in probation

proceedings. Id. Finally, the members ofthe hearing board, the ultimate decision-

makers,"are familiar with the problems and practice" ofthe system. Id. at 789.

Because ofthese differences, the Court held that "[t]he need for counsel at

revocation hearings derives, not from the invariable attributes ofthose hearings, but

rather from the peculiarities of particular cases." Id. Therefore, rather than create

what it called "a new inflexible constitutional rule with respect to the requirement of

counsel," the Court left the decision as to the need for counsel to be made on a case-

by-case basis. Id. at 790. This approach makes sense in dependency proceedings,

where the State assumes the protective responsibilities of parents.

Dependency proceedings are more similar to probation revocation hearings

than criminal hearings, in particular as they relate to the children who are the subject

ofthe proceedings. Unlike the parents, who stand in equipoise with the State and

whose interests are more directly adverse to the State's, a child's relationship with the

Department is similar to a probationer's with a probation officer. The purpose of a

14
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

dependency hearing is to serve and protect the best interests ofthe child, and that

purpose makes those hearings orthogonal to truly adversarial proceedings.

Furthermore, the State is not always a party, let alone represented by coimsel.

Dependency petitions may be brought by "[a]ny person." RCW 13.34.040(1). Family

members can petition a court to find a child dependent in order to be granted

guardianship over the child. Juveniles themselves may initiate dependency actions in

order to gain a predicate order to obtain special juvenile immigrant status and the

resulting relieffrom removability. 8U.S.C. § 1101(a)(27)(J). When a private party

initiates a dependency petition, the Department is not involved, and, as in Gagnon,

there is not an asymmetry of representation. Similarly, the rules of evidence do not

necessarily apply in dependency proceedings. See JuCR 1.4; ER 1101(c)(3)(evidence

rules inapplicable in disposition, review, and permanency planning hearings). And, as

in probation revocation hearings, the decision-maker in dependency hearings is not a

jury in need of explanation, but a judicial officer who is familiar with the system.

Accordingly, as in Gagnon, a case-by-case system for appointment of counsel in

dependency proceedings is more appropriate than a categorical approach.

The Gagnon Court noted that in certain cases, fundamental fairness requires the

appointment of counsel at public expense and listed some scenarios in which this

would presumptively be the case. Gagnon,411 U.S. at 790. Those scenarios

included when the underlying facts are disputed, when the reasons given in opposition

15
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

ofthe deprivation of liberty are complex or otherwise difficult to develop or present,

and when the person requesting cotmsel is not capable of speaking effectively for

himself or herself. Id. at 790-91. In addition to the age and custodial status ofthe

child, courts should consider whether a particular scenario warrants appointment.

When a child disputes the facts that form a basis for a dependency, when a

child presents a complex or sophisticated argument against the State's proposed

decision, or when a child old enough to voice a preference is rendered voiceless in the

proceedings because his or her stated wishes are misaligned with his or her GAL's

assessment of his or her best interests, appointment of counsel is likely proper.

Further, the Court in Gagnon required that in every case, the basis for the

denial of a request for counsel be "stated succinctly in the record." Id. at 791. We

agree with this requirement, as well, to preserve the additional safeguard of appellate

review. See M.S.R., 174 Wn.2d at 21. To protect against challenges to dependency

proceedings, we urge trial courts to sua sponte raise the issue of representation for

children at the earliest practicable time in the proceedings.

Finally, while the United States Supreme Court in Lassiter held that the

Mathews test was appropriate for a case-by-case determination of whether an indigent

parent in a termination proceeding was entitled to counsel, it held that courts must

then set the net weight of the Mathews elements against the presumption that there is a

right to appointed counsel only where the requester's personal freedom is at risk.

16
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

Lassiter, 452 U.S. at 27. The source ofthat presumption was federal precedent. Id. at

26 (citing Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979)).

Because no such state precedent applies, it does not follow that a federal presumption

against counsel should be imported into this analysis. Therefore, the burden of a

movant requesting counsel for a child is the preponderance standard, and movants

need not rebut any presumption against appointment of counsel.

C. Independent State Constitutional Analysis

Although we hold that federal precedent should be used to guide our reasoning,

the due process protection in our state constitution is generally the same as the federal

guaranty, even in the context of dependency proceedings.^ For regardless of whether

we turn to federal guidance to interpret the state protection, the true "question is what

the state's guarantee means and how it applies to the case at hand." Malyon v. Pierce

County, 131 Wn. 2d 779, 798 n.30, 935 P.2d 1272(1997). Because the Mathews test

is adequate to ensure procedural due process protections under both the state and

federal constitutions, the question of RCW 13.34.100(7)(a)'s constitutionality under

either is largely the same.

^ The continued viability of the state constitutional analysis ofIn re Welfare ofMyricks, 85
Wn.2d 252, 255, 533 P.2d 841 (1975) and/« re Welfare ofLuscier, 84 Wn.2d 135, 138, 524 P.2d
906(1974)is not presented in this ease, nor is it questioned by this opinion. Both of those cases
predated both Gunwall and Mathews. The contemporary analysis used to determine what
protections article I, section 3 provides is different from the analysis employed in those opinions.
Those opinions have stood for 40 years, and stare decisis protects their holdings.

17
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

Our state guaranty of due process shares the same basic concerns as the federal

counterpart. A procedural due process challenge under our state provision turns on

whether the increased decisional accuracy afforded by additional procedure to

safeguard against an erroneous deprivation of a private interest is outweighed by the

State's legitimate reasons for denying more protections. See E.S., 171 Wn.2d at 717

(Chambers, J., dissenting)("Nevertheless, the balancing test adopted by the United

States Supreme Court mMathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,47 L. Ed.

2d 18 (1976), offers a valuable tool when determining what is required under article I,

section 3 as well as the Fourteenth Amendment to the United States Constitution.").

This analysis requires us to compare the status quo to the procedures sought

and identify(1)"the private interest that will be affected by the official action";

(2)"the risk of an erroneous deprivation of such interest through the procedures used,

and the probable value, if any, of additional or substitute procedural safeguards"; and

(3)"the [g]ovemment's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would

entail." Mathews,424 U.S. at 335; E.S., 171 Wn.2d at 705.

Here, the comparison to be made is between the current statutory regime, in

which children have a discretionary right to petition for counsel, and a strict rule

under which all children in dependency proceedings must be represented by attorneys.

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In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

absent waiver. Applying the Mathews factors to this inquiry, the appropriateness of a

case-by-case approach is made all the more clear.

First, the private interest will vary depending on the circumstances. In some

cases, such as when a child is found dependent due to the abuse or neglect of one

parent under RCW 13.34.030(6)(b) but remains in the legal and physical custody of

the other parent, the child's interests will be very low. Likewise, even if a child is

found dependent with regard to both parents, the statutory preference for placement is

with relatives. RCW 13.34.060(2), .138(2)(c)(viii). Thus, in many instances, the

State does not assume custody of the child and does not make important decisions

about placement, medical care, or education.

Second, the amount of decisional accuracy added by adopting the proposed rule

of automatic appointment of counsel is based on both the increased decisional

accuracy afforded by attorneys when they are constitutionally warranted and the

likelihood that the current case-by-case approach fails to appoint an attorney when

one is required. If the current system leads to the appointment of counsel whenever it

is constitutionally required, then the proposed automatic appointment rule provides no

additional constitutional protections. This calculation is exceedingly difficult, as

whether counsel is required depends on the facts of each underlying case.

Further, the amount of increased decisional accuracy afforded by an attorney

will vary. Procedural due process protects against erroneous state actions. This will

19
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

occur in the dependency setting only when the State abridges a child's liberty based

on an erroneous determination ofthe best interest ofthat child. If a child's stated

interests are indeterminable due to infancy or if they are aligned with his or her

GAL's assessment of what is in his or her best interest, then the increased decisional

accuracy of an attorney will likely be low. While there may be substantial policy

arguments supporting the appointment of attorneys for children to decrease the

duration of dependencies and increase the children's comfort and agency in the

courtroom, it is only the value with regard to decreasing erroneous deprivations of

liberty that is considered under procedural due process. Those other policy arguments

are legislative in nature and should be balanced against other public interests and

concerns. See SUBSTITUTE H.B. 1251, 65th Leg., Reg. Sess.(Wash. 2017); S.B.

5363,65th Leg. Reg. Sess.(Wash. 2017)(proposed amendments to RCW 13.34.100

that would grant a categorical right of counsel to all children in dependency

proceedings).

Finally, the government's interest against adopting a categorical requirement of

representation is high. Concerns include both cost and practicability, as some

counties may be faced with a shortage of attorneys for children. See ENGROSSED

Substitute S.B. Rep. 6126,63d Leg., Reg. Sess.(Wash. 2014). Requiring the

appointment of counsel prior to removal, as petitioners request, lessens the State's

ability to expediently protect at-risk children. Because each family is different, each

20
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

dependency proceeding is different. Those differences are accounted for in the

flexibility afforded to trial courts under the current case-by-case regime, and that

flexibility is a boon to the State's ability to protect children.

Thus, analyzing the state provision independently from its federal counterpart,

the discretionary right to counsel granted to children in dependency proceedings is

adequate under our state's due process guaranty.

D. Mathews Remains the Test for Appointment of Counsel

For the above reasons, we find that the statutory scheme regarding appointment

of counsel for children is constitutionally adequate under article I, section 3 ofthe

Washington Constitution. However, we emphasize that in many instances due

process might require appointment of counsel, and that trial courts should address the

issue of appointment of counsel on the record at as early a time as is practicable, to

preserve the right of appeal.

In determining whether counsel is required, courts are to apply the Mathews

factors on a case-by-case basis, taking into account the specific interests at risk in

each instance, the additional decisional accuracy that would be afforded by appointing

an attorney, and the government's interest in not appointing counsel. Mathews,424

U.S. at 335. Although not an exhaustive list, courts should consider at least the age of

the child, whether the child is in legal or physical custody ofthe State, whether the

child's stated interests are aligned with the GAL's assessment ofthe child's best

21
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

interest (if a GAL has been appointed) or with another represented party's desires,

whether the child disputes the facts that form a basis for the dependency

determination, whether the child presents a complex argument against the State's

proposed action, and the issues that are actually disputed or to be addressed in the

hearing.

2. The Trial Court Did Not Err in Denying E.H. Counsel

In addition to the facial challenge to the statutory scheme, E.H. challenges the

denial ofthe motion for appointment of counsel for E.H. in that case."^ While

categorical Mathews challenges are questions of pure law, whether E.H. individually

was entitled to an attorney under the Mathews test is a mixed question oflaw and fact.

As such, the standard ofreview typically "depends—on whether answering it entails

primarily legal or factual work." U.S. BankNat'lAss'n v. Vill. atLakeridge, LLC,

^U.S. , 138 S. Ct. 960, 967,200 L. Ed. 2d 218(2018). The constitutional nature

ofthe issue "favors de novo review even when answering a mixed question primarily

involves plunging into a factual record." Id. at n.4. Thus, on appeal, the

determination of whether an attorney was constitutionally required under Mathews is

The dissent purports to dissent only in part, as it relates to E.H.'s as applied challenge. Dissent
at 30. In actuality, the dissent presents a facial challenge to RCW 13.34.ICG's discretionary
appointment mechanism and seeks its invalidation categorically for all children in dependency
proceedings. Dissent at 2-22.

22
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

performed de novo, with deference given to the factual findings made by the trial

court in the first instance, where appropriate.

In this case, the Mathews factors did not require appointment of counsel. This

is chiefly because ofthe "specific circumstances ... at the time the motion for

appointed counsel [wa]s made." Dissent at 23 (citingM.S.R., 174 Wn.2d at 22 n.l3).

The particular interest that was at risk of erroneous deprivation when the motion was

made involved E.H.'s visitation with siblings. No decisions regarding placement were

at issue. At the time the motion was made, being returned to R.R.'s care was not an

option due to her incarceration. Nor was the Department moving to terminate R.R.'s

parental rights. E.H. had been living in the same foster placement for over two years,

and there was no indication in the record of any concerns regarding the safety or

stability ofthat placement. Thus, the interest at risk ofbeing erroneously deprived

when the motion was made was E.H.'s interest in sibling visitation.

Without minimizing that interest, under the Mathews prong, that interest is of a

comparatively lesser constitutional magnitude than an interest in physical autonomy

or medical or educational decisions, although it is a recognized liberty interest.

Under the second Mathews prong, however, it is unclear what additional

decisional accuracy an attorney for E.H. would have provided the trial court in

making its decision regarding visitation. Many of the parties present had attorneys,

and their interests overlapped with E.H.'s. E.H.'s CASA was present and stated

23
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

E.H.'s interest in visits. The trial court identified the exemplary performance ofthe

parties, attorneys, and GALs at raising issues regarding visitation preemptively and

quickly, and stressed that there was not an imminent risk of an erroneous deprivation.

There was no misaligmnent between E.H. and E.H.'s CASA regarding visitation, and

thus the risk of an erroneous deprivation ofthat interest was low.

The trial court accurately identified that the State's primary interest was

reaching permanent and safe placement for E.H. and that that interest was not

frustrated by the appointment of counsel for E.H. It also identified a financial interest,

and while that interest is not sufficient to deny a safeguard to protect against an

erroneous deprivation, at the time the motion for counsel was made, appointing

counsel for E.H. would not have added any meaningful protections regarding the only

issue being addressed at that time. Everyone present agreed that sibling visitation was

appropriate. Thus, the denial of that motion for appointment of counsel, brought at

that time, was not error.

The commissioner noted that if the Department moved to terminated R.R.'s

parental rights and E.H. remained at odds with the CASA's recommendation, the

issue of appointment of counsel should likely be reconsidered. The Department has

moved to terminate, and this court stayed consideration ofthose proceedings pending

the publication of this decision. Once that stay is lifted, the trial court should

24
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

reconsider the appropriateness of counsel for E.H. in light of this decision, applying

the Mathews test to the particular interests E.H. is at risk of erroneously losing.

3. The Record Is Sealed under GR 15(g)

The parties jointly moved to seal records in the underlying juvenile court files

and the appellate files in this matter, and to require the use of initials to protect the

identity ofthe children and parents involved in these disputes. A commissioner ofthe

Court of Appeals has granted much of this relief. The remaining request is to seal the

trial court records contained in appellate files. The parties' joint GR 15 motion to seal

these records is granted. Further, to provide guidance to future parties and

intermediate appellate courts, we hold that trial court records of nondelinquency

juvenile court hearings should remain sealed on appeal, recognizing GR 15(g)'s

abrogation oiJ.B.S., 122 Wn.2d at 137-38.

ROW 13.50.100 provides that records ofjuvenile court hearings not relating to

juvenile offenses "shall be confidential" and proscribes limited instances in which

they may be released. RCW 13.50.100(2). In 1993, this court held that the

requirement of confidentiality contained in RCW 13.50.100 does not apply to

appellate court proceedings based on the definition of"court" contained elsewhere

within the Juvenile Court Act. 122 Wn.2d at 135. Thus, this court found that a

GR 15 motion to seal is required to seal such records. /J. at 137. It directed lower

courts to use the Ishikawa factors when determining whether to grant such a motion

25
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

but, resolving the matter on statutory interpretation grounds, did not reach the

constitutional question of whether article I, section 10 applies to juvenile records. See

id. at 137-38; Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 38,640 P.2d 716(1982).

Two significant changes have occurred since this court's decision in 1993.

First, in 1997, GR 15 was amended to include a new provision. Second, we addressed

the constitutional question that we declined to reach in J.B.S. and ruled that under the

experience and logic test, article I, section 10 does not apply to juvenile records. See

State V. S.J.C., 183 Wn.2d 408, 352 P.3d 749(2015).

In 1997, GR 15 was amended to include what is now GR 15(g):"Use of Sealed

Records on Appeal." See In re Dependency ofG.A.R., 137 Wn. App. 1, 13, 150 P.3d

643 (2007). That provision provides that "[cjourt records sealed in the trial court shall

be sealed from public access in the appellate court subject to further order ofthe

appellate court." GR 15(g). As the Court of Appeals in G.A.R. held, GR 15(g)

preserves the confidentiality ofjuvenile court files and records. G.A.R., 137 Wn. App.

at 13. This new provision partially abrogated J.B.S. to the extent that our opinion in

that ease held that confidential trial records are unsealed on appeal. Accordingly,

records that are confidential under RCW 13.50.100(2) remain confidential on appeal,

subject to the exceptions provided in RCW 13.50.100 and RCW 13.50.010. Such

records should be sealed from public access without need for a party to bring a GR 15

motion to seal.

26
In re Dependency ofE.H. and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

CONCLUSION

Under both the state and federal constitutions, the discretionary standard for

appointment of counsel in ROW 13.34.100(7Xa) provides children with sufficient due

process protection, provided that juvenile courts apply the Mathews factors on the

record at an early practicable time and without a presumption against appointment of

counsel. Review of a juvenile court's denial of appointed counsel should be

performed de novo, with due deference given to findings offact made by the juvenile

court in the first instance. We are confident iu the ability of trial judges to perform

this function, as the Mathews test is familiar to judges and has proved capable of

protecting procedural due process for decades. On review ofthe record, we affirm the

denial of R.R.'s motion for an attorney for E.H.

We grant the joint motion to seal the appellate record. To provide clarity to

intermediate appellate courts, we reach the question of whether such a motion is

necessary, given the 1997 amendments to GR 15. Recognizing the abrogation of

122 Wn.2d 135, by the promulgation of GR 15(g), we hold that the

confidential nature of dependency proceedings granted by RCW 13.50.100(2) is not

lost through appeal. Accordingly, courts of appeal should sua sponte seal the records

and appendices of such proceedings, except as provided for in RCW 13.50.100 and

RCW 13.50.010.

27
In re Dependency ofE.H and S.K.-P.
No. 94798-8 (consolidated with No. 94970-1)

7^
WE CONCUR:

. CC\ .

28
In re Dependency ofE.H and S.K.-P.
(Stephens, J., concurring in part and dissenting in part)

94798-8

STEPHENS,J.(concurring in part, dissenting in part)—join the lead opinion

in all respects save for its resolution ofthe parties' motion to seal the record. I agree

with Justice Gordon McCloud's partial dissent that the motion to seal should be

denied under article I, section 10 ofthe Washington State Constitution.
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)

No. 94798-8

GORDON McCLOUD,J.(concurring in part and dissenting in part)—I agree

with the lead opinion that both RCW 13.34.700(7)(a) and the due process clause of

the Washington Constitution provide a child with the right to counsel in dependency

proceedings in certain circumstances. WASH.CONST, art. I, § 3.1 write separately for

two reasons:(1)to highlight the fact that all members of this court now agree that a

trial court must consider certain key factors before making that decision about

appointment of counsel,see lead opinion at 21; dissent at 20, and(2)to dissent from

the decision to seal the records of all dependency cases from public view, even on

appeal.

With regard to the first issue—the child's right to appointment of counsel

during a dependency proceeding—^the lead opinion and the dissent agree on one key

point. They agree that before making a decision on whether to appoint counsel, the

trial court must consider "[whether the] child disputes the facts that form a basis for

a dependency, [whether the] child presents a complex or sophisticated argument

against the State's proposed decision," and whether "a child old enough to voice a
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)

preference" about the dependency voices a position different from the position

advanced by the guardian ad litem. Lead opinion at 16; see also dissent at 26. Full

consideration of these and any other factors raised by the parties when considering

whether to appoint counsel for the child should go a long way towards addressing

the problems detailed in the dissent. Dissent at 23-25.

However, I disagree with the lead opinion's resolution of the parties' joint

motion to seal the record in this court. The lead opinion holds that State v. S.J.C.,

183 Wn.2d 408, 352 P.3d 749 (2015), and GR 15(g) authorize the appellate courts

to seal the complete record in all dependency proceedings—^regardless of anything

in article I, section 10 of the Washington Constitution to the contrary. Lead opinion

at 25-26. However, article I, section 10 does indeed say something to the contrary:

it provides that "[ijustice in all cases shall be administered openly." Wash. Const.

art. I, § 10. It does not have an exemption for cases involving juveniles (or adults)

in dependency proceedings.

The lead and dissenting opinions reason that S.J.C. already held that article I,

section 10—despite its clear and categorical ("all cases")language—does not apply

to the dependency proceedings at issue in this case.

I respectfully disagree.SJ.C. addressed one issue, and it concerned the sealing

of dispositions in juvenile criminal cases—^not dependency cases. As the

introduction to the opinion in that case clearly stated, the question before the court
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)

was "whether article I, section 10 ofthe Washington Constitution requires the court

to apply the Ishikawd^^ factors when a former juvenile offender has satisfied the

statutory requirements of former RCW 13.50.050 (2011) to seal his or her juvenile

court record." S.J.C., 183 Wn.2d at 411 (footnote omitted).

To be sure, I disagreed with the decision in that case to exempt juvenile

criminal proceedings from that constitutional protection. S.J.C., 183 Wn.2d at 435

(Stephens, J., dissenting). But I do not rest my assessment ofthe parties' motion to

seal the record in this case on a prior dissent. Instead, I rest it on the fact that the

question presented here is different from the question presented there—^this case

involves the record of a dependency proceeding. S.J.C. involved the record of a

criminal disposition held in juvenile court specifically to avoid the stigma,

formalities, and nonrehabilitative adverse consequences of an adult criminal

conviction, and it based its decision on our state's historical treatment of such

juvenile criminal dispositions. S.J.C., 183 Wn.2d at 418-19.

For that reason, I would deny the parties' agreed motion to discard the

constitutional protection that "justice shall be administered openly" in all courts of

our state. I fear that we are carving out courts to shield from public view one by

one—first,juvenile courts, S.J.C., 183 Wn.2d at435 (Stephens, J., dissenting); next.

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).
3
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)

certain therapeutic courts, State v. Sykes, 182 Wn.2d 168, 339 P.3d 972(2014); and

now, dependency proceedings.

While I concur in the lead opinion's holding on the due process question

presented by this case, I respectfully dissent from its conclusion that dependency

proceedings can now join the growing list of cases that are exempt from the benefits

that the constitutional guaranty of open courtrooms, open court files, and open

government was supposed to bring to the people.
In re Dependency of: E.H. andS.K.-P., No. 94798-8
(Gordon McCloud, J., concurring in part and dissenting in part)
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

No. 94798-8

YU,J. (dissenting in part) — Our jurisprudence has evolved in its

understanding that children have cognizable rights and protected interests. We

have correspondingly grown in our recognition that children's rights and interests

are entitled to legal protection. Therefore,"the law has constructed a constitutional

wall around juveniles, maintaining its integrity through a continuous process of

refining its contours and repairing its cracks." State v. S.J.C., 183 Wn.2d 408, 413,

352 P.3d 749(2015). Today, the lead opinion abruptly reverses course, rejecting

the progress we have made and reverting to the view that children in dependency

cases are commodities to be allocated, not individuals to be heard. I cannot join

the lead opinion's retreat to a perspective that treats children as mere "chattels

incident to adult domestic relations." Id.

The dependency case involving S.K.-P. has been dismissed. In re

Dependency ofS.K.-P., 200 Wn. App. 86, 92,401 P.3d 442, review granted, 189
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

Wn.2d 1030, 408 P.3d 1094(2017). Therefore, reversing the ruling denying

appointed counsel in E.H.'s case on a narrow, case-by-case basis would be

sufficient to resolve the pending issues presented. Further, I agree that the joint

motion to seal should be granted. I thus respectfully dissent in part.

However, I must register my deep concern at the lead opinion's conclusion

that article I, section 3 has no independent meaning in this context and, therefore,

provides no protections beyond the minimum required by the Fourteenth

Amendment. WASH. CONST, art. I, § 3; U.S. CONST, amend XIV. It is clear from

our cases and statutes that all children in dependency cases are continuously at risk

of being erroneously deprived oftheir most fundamental rights. It has also been

repeatedly shown that an attorney representing the child's position dramatically

decreases that risk. It is apparent, however, that our current discretionary approach

to appointing counsel for children in dependency cases has failed to protect

children's state due proeess rights.

ANALYSIS

A. The discretionary, case-by-case approach to appointing counsel for children
in dependency cases violates the Washington Constitution

All ehildren in dependeney cases unquestionably have significant,

substantive rights pursuant to Washington law, including the right to state their

positions and to have those positions represented in court. RCW 13.34.090(1). As
In re Dependency ofE.H. & S.K.-P.,'Ho. 94798-8
(Yu, J., dissenting in part)

clearly recognized by our legislature's provision that an attorney may be appointed

to represent the child's position, we cannot assume the child's interests will be

aligned with the State's in any case. RCW 13.34.100(7)(a). However, the

unguided discretion that trial courts currently have in appointing counsel allows for

inconsistent practices that leave many children with no voice and no one to

advocate for their rights. This arrangement does not satisfy the heightened due

process protections provided in this context by article I, section 3.

1. Article I, section 3 is more protective of a child's right to appointed
counsel in dependency cases than the Fourteenth Amendment is

"In determining the meaning of a state constitutional provision, 'the focus is

on whether the unique characteristics ofthe state constitutional provision and its

prior interpretations actually compel a particular result.'" State v. Pugh, 167

Wn.2d 825, 835, 225 P.3d 892(2009)(internal quotation marks omitted)(quoting

State V. Chenoweth, 160 Wn.2d 454, 463, 158 P.3d 595 (2007)). Therefore,

"context matters when we are determining whether to independently analyze the

state due process clause." Bellevue Sch. Dist. v. E.S., 171 Wn.2d 695, 711,257

P.3d 570(2011). The specific context presented here is a child's right to

representation in a dependency case. In this context, the Gunwalf factors and

'State V. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986)
In re Dependency ofE.H. & S.K.-P.,E^o. 94798-8
(Yu, J., dissenting in part)

recent precedent lead me to conclude that article I, section 3 is more protective

than the Fourteenth Amendment.

a. The Gunwall factors are evenly split because preexisting state
law supports an independent interpretation

I agree that the first three Gunwall factors do not support an independent

interpretation of article I, section 3, while the fifth and sixth factors do. Lead

opinion at 10-12. However, I would hold that the fourth factor (preexisting state

law) does support an independent interpretation, leaving the nonexclusive Gunwall

factors evenly split.

In evaluating preexisting state law, we must "consider the degree of

protection that Washington State has historically given in similar situations."

Grant County Fire Prat. Dist. No: 5 v. City ofMoses Lake, 150 Wn.2d 791, 809,

83 P.3d 419(2004). The question is not whether Washington has historically

accorded children extensive due process rights generally. It is whether

Washington law has been more protective than federal law in the context

presented. Historical statutory and common law demonstrate a long-standing

commitment in Washington State to providing representation for children in

dependency cases and similar contexts. Such a commitment is noticeably and

unsurprisingly lacking in historical federal law because, as the Supreme Court of

the United States has noted, any question about familial relationships '"belongs to
In re Dependency ofE.H. & S.K.-P.,'Ho. 9A19%-?i
(Yu, J., dissenting in part)

the laws of the States and not to the laws ofthe United States.'" Rose v. Rose, 481

U.S. 619, 625, 107 S. Ct. 2029,95 L. Ed. 2d 599(1987)(quoting/,p2 reBurrus, 136

U.S. 586, 593-94, 10 S. Ct. 850, 34 L. Ed. 500(1890)).

It is true that historically, Washington has required that children who are

parties in a court case must appear by guardian. Lead opinion at 11. However, it

is not true that this long-standing requirement "cuts against any finding that the

state due process clause expands protections for the appointment of attorneys for

children, as historically children have not had the right to appear in court at all, let

alone with counsel." Id. Gunwall is a threshold inquiry. Therefore, the fourth

Gunwall factor asks whether state law has historically been more protective than

the federal constitution, not whether historical state law already recognizes the

particular right at issue. Gunwall, 106 Wn.2d at 61-62. A provision that a child

shall appear through a representative is unquestionably more protective of a child's

right to representation than no provision at all.

Washington's historical practice of having children appear through a

guardian reflects Washington's overall historical protections,"particularly in

disputes touching on the rights and protection of minors." In re Parentage ofL.B.,

155 Wn.2d 679, 696-97, 122 P.3d 161 (2005){citmgBorenbackv. Borenback, 34

Wn.2d 172, 208 P.2d 635 (1949)(citing Allen v. Allen, 28 Wn.2d 219, 182 P.2d 23

(1947); Mitchell v. Mitchell, 24 Wn.2d 701, 166 P.2d 938(1946); Lindblom v.
In re Dependency ofE.K & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

Lindblom, 22 Wn.2d 291, 155 P.2d 790(1945); Flagg v. Flagg, 192 Wash. 679, 74

P.2d 189 (1937); Wixson v. Wixson, 172 Wash. 151, 19 P.2d 912(1933))). These

protections "extend[]considerably greater protections to our citizens in this regard

than do comparable federal statutes and rulings thereon." Gunwall, 106 Wn.2d at

66. Most notably, for federal purposes,"[njearly everyone would identify 1967 as

the most important year in the history of counsel for children in the United States."

Martin Guggenheim, Reconsidering the Needfor Counselfor Children in Custody,

Visitation and Child Protection Proceedings, 29 LOY. U. CHI. L.J. 299, 301 (1998).

By that time,"[m]ost ofthe practices prescribed by the Supreme Court were

already in place in Washington." S.J.C., 183 Wn.2d at 424.

Preexisting state law thus shows Washington has historically granted more

procedural protections for children's representation in court than federal law has

done. The fourth Gunwall factor supports an independent interpretation, leaving

the Gunwall factors evenly split.

b. Recent court and legislative decisions confirm that article I,
section 3 should be interpreted independently in this context

Because the six Gunwall factors are explicitly nonexclusive, we should

resolve the split by looking to recent decisions by this court and the legislature.

"[TJhis court has been zealous in its protection of familial relationships," and the

legislature has consistently and repeatedly built on earlier law to increase
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

procedural protections for children's representation in family law cases. In re

Dependency ofM.S.R., 174 Wn.2d 1, 15-16, 271 P.3d 234(2012). The substance

and direction ofthis recent law show that article I, section 3 of the Washington

Constitution provides more protection than the Fourteenth Amendment in this

context.

Over 30 years ago, this court recognized in an action to determine parentage

that "[a] child must not be a party in name only. It is fundamental that parties

whose interests are at stake must have an opportunity to be heard 'at a meaningful

time and in a meaningful manner.'" State v. Santos, 104 Wn.2d 142, 147, 702 P.2d

1179(1985)(quoting Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d

418, 422, 511 P.2d 1002(1973)). A few years later, we reemphasized that

"children involved in dependency and termination actions are parties to those

actions and entitled to representation. Children have a right to be represented by a

guardian ad litem or an attorney or both, who have the right to fully participate in

all proceedings." In re Dependency ofJ.H., 117 Wn.2d 460, 477, 815 P.2d 1380

(1991)(emphasis added)(footnotes omitted).^ And in 2005, we strongly urged

^ I do not cite J.H. in connection to the fourth Gunwall factor or in relation to the issue,
not presented here, of whether a child is a party in some technical sense. Contra lead opinion at
11 n.2. I cite it as recent precedent indicating a consistent trend of providing growing protections
for a child's right to representation in family law cases. The legislative amendment referred to
by the lead opinion is irrelevant to this purpose, as it merely changed the phrase "a child who is a
party to the proceedings" to "a child who is the subjeet of an action." Laws of 1993, ch. 241,
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

trial courts "to consider the interests of children in dependency, parentage,

visitation, custody, and support proceedings, and whether appointing counsel, in

addition to and separatefrom the appointment of a [guardian ad litem], to act on

their behalf and represent their interests would be appropriate and in the interests

ofjustice." 1.5., 155 Wn.2d at 712 n.29(emphasis added). Relevant recent

precedent thus recognizes significant, consistently growing procedural protections

for children's representation in dependency and similar family law cases.

Additionally, the legislature has taken important steps to provide for

appointed counsel for children in dependency and termination cases that exceed

federal statutory protections. Within the past 10 years, the legislature has enacted

statutes that(1)require the State and the guardian ad litem(GAL)or court

appointed special advocate(CASA)to notify all children who are at least 12 years

old that they have a right to request counsel,(2)require appointment of counsel for

children six months after all parental rights have been terminated, and (3) permit

judges to appoint counsel for children in all dependency proceedings on a case-by-

case basis. Laws of 2010, eh. 180, § 2; Laws of 2014, ch. 108, § 2. By

comparison. Congress has enacted only "a limited statutory right of representation

§ 2(1). There is no indication that this amendment was intended to limit a child's right to
representation, and I do not see how it could do so.

8
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

(though not necessarily by attorney)... as a condition for receiving federal funds."

M.S.R., 174 Wn.2d at 14 n.7 (citing.42 U.S.C. §§ 5101-5107).

The lead opinion renders these legislative efforts largely meaningless by

holding that a child's statutory right to counsel in a dependency case is coextensive

with the right to counsel that a child already has pursuant to the federal due

process clause. Lead opinion at 21-22. In addition, the recent cases the lead

opinion points to are of little to no relevance in this context. Id. at 9-10 (citing

E.S., 171 Wn.2d 695\In re Welfare ofA.W., 182 Wn.2d 689, 344 P.3d 1186

{20\5)-M.S.R., 174 Wn.2d 1).

E.S. considered a child's right to appointed counsel only "in the context of

an initial truancy proceeding," explicitly stated that the "right to counsel in a

context entirely outside the scope of truancy is not instructive," and specifically

declined to give weight to cases concerning the right to counsel in dependency

cases. 171 Wn.2d at 711-13. Moreover, the court declined to find a right to

appointed counsel in E.S. because the petitioner "failed to show any private interest

that was affected by the initial truancy hearing." Id. at 708 (emphasis added). The

same cannot possibly be said of any hearing in a dependency case.

A. W. did consider a similar type of case, but an entirely different aspect of

due process. It did not consider appointment of counsel for anyone, much less for

children. A. W. considered only the applicable burden of proofin a dependency
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

guardianship. 182 Wn.2d at 703. Further, it expressly did not consider the child's

rights as independent of the parent's rights because "[t]he State must assume that

the interests of the parent and the child converge until the State proves by the

requisite standard that there is parental unfitness," which of course cannot happen

until the requisite standard is defined. Id. at 707 n.l6. A. W. is therefore not

instructive on the issue presented.

Finally, the outcome of M.S.R. is entirely irrelevant to determining whether

the state constitution is more protective than the federal. M.S.R. explicitly did not

reach any state constitution claims because they were inadequately briefed. 174

Wn.2d at 20 n.11. We have the authority to request additional briefing, but this

court's declining to reach inadequately briefed issues is not proofthat we are

unconcerned with the merits. Contra lead opinion at 10. Treating it as such

inappropriately disregards the basic structure of appellate proceedings in which the

parties have both the right and the duty to brief the issues as they see fit. It also

sets dangerous precedent, inviting parties to assume we have implicitly decided

issues that our published opinions explicitly declined to address.

Therefore, while the nonexclusive Gunwall factors are evenly split, recent

cases and statutes conclusively show that article I, section 3 is more protective than

the Fourteenth Amendment of a child's right to representation in a dependency

case. And because I would analyze Washington's due process clause

10
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

independently in this context, the assertion that for federal due process purposes, a

child in a dependency case is similarly situated to an adult in a probation

revocation hearing is irrelevant. See lead opinion at 13-16 (discussing Gagnon v.

ScarpelU, 411 U.S. 778,93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). I simply note

that such a comparison is entirely inappropriate as a matter of fact, and as a matter

of law, it is contrary to our precedent's explicit guidance that "context matters."

E.S., 171 Wn.2dat711.

2. Article I, section 3 requires consistent practices for appointing counsel
to represent children in dependency cases

I agree that for both state and federal purposes, a procedural due process

analysis requires consideration of the private and government interests at stake, the

risk of erroneous deprivation, and the value of additional procedural safeguards.

Lead opinion at 17-18. However, the lead opinion (despite its insistence that the

federal constitution controls) purports to conduct an independent state analysis

without accounting for relevant features of state law. Id. at 17-21. "When a state

court neglects its duty to evaluate and apply its state constitution, it deprives the

people of their 'double security.'" Alderwood Assocs. v. Wash. Envtl. Council, 96

Wn.2d 230, 238, 635 P.2d 108 (1981)(quoting The FEDERALIST No. 51, at 339(A.

Hamilton or J. Madison)(Modem Library ed., 1937)). The lead opinion effects

just such a deprivation here.

11
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

I would hold that in light ofthe interests and rights at stake in dependency

proceedings specifically as a matter of state (as opposed to federal) law, it is clear

that the current, case-by-case approach to appointing counsel does not satisfy

article I, section 3.

Every dependency case implicates the protected interests and statutory rights

of every child involved. M.S.R., 174 Wn.2d at 17-18. And in every dependency

case, the child faces at least some risk that he or she will be erroneously deprived

of his or her rights. Without any statutory guidance as to when counsel should be

appointed to protect the child's rights, though, each child is subject to the policies

and viewpoint ofthe particular court presiding over the case, limited only by the

minimum requirements of constitutional due process. This system does not

sufficiently protect the significant substantive rights at stake for children in

dependency proceedings.

a. All children have protected interests and statutory rights at
stake in dependency cases

Every child in a dependency case has the same interests and faces the same

risks at various points in the proceedings. The most obvious protected interest at

risk is the child's interest in maintaining continuous relationships with his or her

family. "In a dependency or termination proceeding ... the child is at risk of not

only losing a parent but also relationships with sibling(s), grandparents, aunts.

12
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

uncles, and other extended family," Id., at 15. This risk is far more important than

the lead opinion today realizes. See lead opinion at 23.

[T]he importance ofthe familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of
daily association, and from the role it plays in
promot[ing] a way of life through the instruction of
children as well as from the fact of blood relationship.

Once we recognize that the child's interest in his or her familial bonds
is constitutionally protected, and that familial bonds stem not just
from biology, but also from the intimacies of daily association, then it
logically follows that a child has a constitutionally protected interest
in whatever relationships comprise his or her family unit.

Inre Custody ofShields, 157 Wn.2d 126, 152, 136 P.3d 117(2006)(Bridge, J.,

concuiTing)(alterations in original)(citations and quotation marks omitted)

(quoting iSmfr/z v. Org. ofFoster Familiesfor Equal. & Reform, 431 U.S. 816, 844,

97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977)). Therefore,"maintaining the integrity of

the family relationships, including the child's parents, siblings, and other familiar

relationships" is a protected liberty interest that every child has and that every child

risks losing in a dependency case. M.S.R., 174 Wn.2d at 20.

However, damage to family relationships is only one ofthe many risks

children in dependency cases face. Unlike a parent, a child in a dependency case

may be "physically removed from the parent's home." Id. at 16. Regardless of

whether the child is placed with relatives or in the care of the State, removal has

13
In re Dependency ofE.H. & S.K.-P.,^o. 94798-8
(Yu, J., dissenting in part)

enormous consequences for every aspect ofthe child's life. "Children who are

removed from their parents' care face a loss of physical liberty and may be forced

to change homes, schools, and care facilities. Such movement may cause children

significant harm." In re Dependency of,Lee, 200 Wn. App. 414, 450, 404 P.3d 575

(2017), review denied, 190 Wn.2d 1006,415 P.3d 99(2018).

Where a child in a dependency case is in the care of his or her parents or

other relatives, the child has the right to a safe, secure, and appropriate placement

to protect his or her physical liberty and bodily integrity. M.S.R., 174 Wn.2d at 16-

17. But where a child is removed from his or her parents' care and cannot be

placed with a relative or someone else the child knows, the child must "face the

daunting challenge of having his or her person put in the custody of the State as a

foster child, powerless and voiceless, to be forced to move from one foster home to

another." Id. at 16. All children in foster care have "substantive due process rights

that the State, in its exercise of executive authority, is bound to respect,"

particularly the "right to be free from unreasonable risk of harm, including a risk

flowing from the lack of basic services, and a right to reasonable safety." Braam v.

State, 150 Wn.2d 689, 698-99, 81 P.3d 851 (2003).

In addition to these constitutionally protected interests, every child has the

statutory right "to be heard in his or her own behalf." RCW 13.34.090(1). This

right is not merely my view ofthe best policy or a nicety that may be offered to

14
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

"increase the children's comfort and agency in the courtroom," Lead opinion at

20. It is the legislature's declaration, consistent with this court's decisions, that a

child in a dependency case has the "right to fully participate in all proceedings."

J.H., 117 Wn.2d at All (citing RCW 13.34.090,.100; JuCR 9.2(b)(1)). This is

crucial because "[w]hen adjudicating the 'best interests of the child,' we must in

fact remain centrally focused on those whose interests with which we are

concerned, recognizing that not only are they often the most vulnerable, but also

powerless and voiceless." L.B., 155 Wn.2d at 713 n.29.

Thus, every dependency case implicates fundamental rights that every child

has in accordance with Washington law. As discussed further below, all children

who are not represented by attorneys are placed at an unacceptably high risk of

being erroneously deprived oftheir rights in a dependency case. Despite these

common interests and risks, however, the current, unguided, discretionary system

for appointing counsel ensures that whether a child will have an attorney varies

depending on which court is considering his or her case.

b. The risk that a child without an attorney will be erroneously
deprived of protected interests and rights is unacceptably high,
and the current discretionary system does not mitigate that risk

"While an adult may have an understanding of substantive and procedural

issues, and court process, children are at great risk of misunderstanding both."

Amy E. Halbrook, Custody: Kids, Counsel and the Constitution, 12 DUKE J.

15
In re Dependency ofE.H & S.K.-P.,I^o. 94798-8
(Yu, J., dissenting in part)

Const.L.& Pub.Pol'Y 179, 212(2016). Such misunderstandings create an

extremely high risk that unrepresented children in dependency cases will be

deprived oftheir protected interests and statutory rights, with potentially

devastating consequences.

The State places great emphasis on the procedural protections already in

place for children, including their right to an appointed GAL or CASA and the

possibility of counsel being appointed on a discretionary, case-by-case basis.

However, an appointed GAL or CASA does not play the same role as an attorney

representing the child's position and does not mitigate the risk of erroneous

deprivation as an attorney does. Moreover, the current discretionary system for

appointed counsel is not sufficient to ensure that counsel will be appointed in all

(or even most)cases where it is necessary to protect the child's rights.

It has been empirically shown that children who are not represented by

attorneys are routinely erroneously deprived oftheir most fundamental protected

interests and statutory rights, even when they have an appointed GAL or CASA.

For instance,

youth who were appointed an attorney at the first dependency hearing
were 20 percent more likely to reside with known persons instead of
foster parents than those children appointed attorneys sometime after
the initial shelter care hearing (and 27 percent more than those
children without an attorney until after termination of parental rights).

16
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

Amicus Curiae Br, of Legal Counsel for Youth & Children at 13. All children

have the right to be placed with people they know instead ofthe foster care system

where possible. RCW 13.34.130(5). But whether that right is actually protected

varies, depending on whether the child has an attorney.

In addition, a child might not know that he or she had the right to '"speak up

if he didn't feel good in a placement.'" Amici Curiae Br. of Ctr. for Children &

Youth Justice & Mockingbird Soc'y(CCYJ)at 5 (quoting Alicia LeVezu,

Children & Youth Advocacy Clinic at Univ. of Wash., Defending Our

Children: A Child's Access to Justice in Washington State 5(Aug. 2016)

{Defending Our Children), http://cdcasa.org/wp-eontent/uploads/2017/01/UW-

Study-2016-Defending-Our-Children.pdf[https://perma.cc/5KUG-Z8L6]). Ifthe

child is being abused or neglected in that placement, he or she may become trapped

in an even more perilous situation than the one that existed before the dependency

case began. It is unlikely that a child who has been placed in an abusive situation

by the State will know that he or she has a right to be heard unless that right is

explained to the child by an attorney. Even a child who does know his or her

rights, however, will likely "stop[]seeing the value in expressing his opinion and

[begin] to feel lost in the system" after being subjected to inappropriate placements

or frequent moves without anyone to advocate for the child's position. Id. at 10.

17
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

The fact that children who have a GAL or CASA but no attorney are more

likely to be erroneously deprived of their rights is not surprising because "GALs

and CASAs are not trained to, nor is it their role to, protect the legal rights ofthe

child." M.S.R., 174 Wn.2d at21. Instead, their statutorily mandated role is "[t]o

represent and be an advocate for the best interests ofthe child." RCW

13.34.105(l)(f). In some cases, the child's stated position might align with the

State's view ofthe child's best interests, but in many cases, their positions will

diverge. "[CJourtroom observers recently found that CASA[]s and GAL[]s 'only

presented arguments to support the child's position 30 [percent] of the time.'"

Amici Curiae Br. of CCYJ at 13 (quoting Defending Our Children at 22). This is a

disturbingly low figure and may still underestimate how often the child's position

goes unrepresented because without an attorney to act as the child's confidential

counselor, it can be more difficult to ascertain what the child's position actually is.

"Unlike GALs or CASAs,lawyers maintain confidential communications,

which are privileged in court." M.S.R., 171 Wn.2d at 21. An attorney can

therefore encourage a child to freely express what he or she thinks and wants, and

can honestly promise not to divulge information the child wants to keep private.

GALs and CASAs cannot because they are required to "report to the court any

views or positions expressed by the child on issues pending before the court."

RCW 13.34.105(l)(b).

18
In re Dependency ofE.H & 5.AT.-P., No. 94798-8
(Yu, J., dissenting in part)

In addition to making it more difficult for a child to communicate honestly,

the GAL's or CASA's mandatory reporting duty might be mistakenly viewed as

giving the child a sufficient voice in the proceedings. E.g., S.K.-P., 200 Wn. App.

at 110; State Dep't of Soc. & Health Sei-vs. Suppl. Br. at 14. A GAL or CASA is

charged with reporting the child's position, not representing it. These are two

different functions, clearly reflected by the fact that the legislature provides for

both discretionary appointment of counsel to "represent" the child's position and

mandatory appointment of a CASA or GAL to "report" it. RCW 13.34.100(7)(a),

.105(l)(b).

An appointed GAL or CASA is not a confidential counsel or advocate. An

appointed attorney is. When children have attorneys, the risk that they will be

erroneously deprived of their protected interests and statutory rights drops

dramatically.

Because all children have fundamental, substantive interests and rights in

their dependency cases, one might reasonably assume that all similarly situated

children will receive appointed counsel on the same basis so their voices can be

heard and their legal rights can be protected. One might also reasonably assume

that a court's discretionary decision whether to appoint counsel would necessarily

involve careful consideration of case-specific factors, including the child's age and

mental capacity, the child's ability to express his or her preferences, whether the

19
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

child's expressed preferences differ from the GAL's or CASA's assessment ofthe

child's best interests, whether the child's position is being adequately represented

in the proceedings, and the complexity of the underlying facts or legal issues.

Unfortunately, such reasonable assumptions would be misplaced. The

discretionary and unguided nature of our current statute has resulted in inconsistent

practices, such that "'[w]hether or not a child is represented by an attorney in a

dependency proceeding depends largely on local practices in the county where the

child's case is heard.'" Amicus Curiae Br. of Legal Counsel for Youth & Children

at 17(quoting OFFICE OF FAMILY & CHILDREN'S OMBUDS,2013 ANNUAL REPORT

55 (Jan. 2014), http://ofco.wa.gov/wp-content/uploads/ofco_2013_annual.pdf

[https://perma.cc/GN75-UNBZ]). "In fact, across Snohomish, King and Pierce

counties, the discretionary appointment of counsel at hearings occurred for less

than 1 \percent'\ of all children without advocates." Amici Curiae Br. of CCYJ at

15 (emphasis added)(citing Defending Our Children at 28). This circumstance is

both unethical and unconstitutional.

As reflected by the plain language of RCW 13.34.100(7)(a), the legislature's

intent was to ensure that counsel would be appointed where needed to represent the

child's position. The legislature has also attempted to increase the likelihood of

appointed eounsel by requiring the State and the GAL or CASA to notify all

children who are at least 12 years old that they have a right to request counsel.

20
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

RCW 13.34.100(7)(c). However, Washington courts have not consistently

honored the legislature's intent. In practice, courts may deny counsel on the basis

that there are no "extreme circumstances" or "simply eonclude[]that the parents

themselves were sufficient to perform the services ofindependent counsel."

Clerk's Papers at 329; Lee, 200 Wn. App. at 450. Children deserve more careful

consideration of their protected rights, and they are entitled to it in accordance with

article I, section 3 ofthe Washington Constitution.

c. No countervailing government interests justify the risks that
unrepresented children face in dependency cases

In every dependency and termination case,"the State has a compelling

interest in both the welfare ofthe child and in 'an accurate and just decision.'"

M.S.R., 174 Wn.2d at 18 (quoting Lassiter v. Dep't ofSoc. Servs., 452 U.S. 18, 27,

101 S. Ct. 2153,68 L. Ed. 2d 640(1981)). However,these interests would be

furthered, not hindered, by appointing counsel for children in dependency cases.

Trial courts cannot ascertain what is in the child's best interests by simply

deferring to a CASA's or GAL's position. Courts must instead consider the

positions of all the parties and reach their own conclusions. They cannot do so if
the child's position is not represented. Therefore, the State's most compelling

interests support the same result as the private interests at stake for the child:

appoint counsel to represent the child's position. The only countervailing interest

21
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

the State has is saving money, but "[fjinancial cost alone is not a controlling

weight," particularly when the private interests at stake are as fundamentally

important as a child's interests in a dependency case are. Mathews v. Eldridge,

424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

Considering the interests at stake and the high risk of erroneous deprivation

under the current system, it is apparent that the Washington Constitution demands

what the majority of states already provide: every child in a dependency or

termination case who cannot afford a private attorney is presumptively entitled to

appointed counsel. Children's Advocacy Inst.& First Star, A Child's Right

TO Counsel: A National Report Card on Legal Representation for Abused

& Neglected Children 10(3d ed. 2012)[https://perma.ccAf6BD-DDVA]; Am.

Amicus Curiae Br. of Children's Rights, Inc., et al. at 19.

The lead opinion is wrong to conclude otherwise.

B. E.H. is entitled to appointed counsel pursuant to the Fourteenth Amendment

In addition to my strong disagreement with the lead opinion's analysis of

article I, section 3,1 would hold that E.H. is entitled to appointed counsel on a

case-by-case basis even under the minimal protections of the federal constitution. I

would therefore reverse and remand for counsel to be appointed for E.H.

The Fourteenth Amendment does not categorically require appointment of

counsel for all children in dependency cases. M.S.R., 174 Wn.2d at 22. However,

22
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

children do have the right to a thoughtful analysis oftheir "individual and likely

unique circumstances" when courts are deciding whether to appoint counsel on a

case-by-case basis. Id. This analysis requires courts to consider carefully the

specific context ofthe individual case to determine whether '"the particular

situation demands'" appointment of counsel. Mathews,424 U.S. at 334(quoting

Morrissey v. Brewer,408 U.S. 471,481,92 S. Ct. 2593, 33 L. Ed. 2d 484(1972)).

E.H.'s particular situation demands that an attorney be appointed to represent him

and to advocate for his position.

1. A case-by-case analysis must account for the particular interests that
are currently at risk of erroneous deprivation

The trial court correctly recognized that E.H. could be appointed counsel on

a case-by-case basis and that he had a "significant private interest" at stake. Pet'r's

Suppl. Br., Corrected J.A. at 9. However, it is not sufficient in a case-by-case

analysis to recite the interests that are generally at stake for any child at some point

in a dependency case. If the case-by-case analysis is to be meaningful, it must

account for the specific circumstances and the particular child at the time the

motion for appointed counsel is made. M.S.R., 174 Wn.2d at 22 n.13.

The court here, however, noted only the generally applicable risks that every

child faces at some point in a dependency proceeding, including "removal from

home,the possibility of repeated placements in foster care and the dangers of being

23
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

returned to an unsafe home with biological parents who are not truly ready to

assume care of the child." Pet'r's Suppl. Br., Corrected J.A. at 9. At the time,

those were not the interests currently at risk for E.H.

He had already been removed from his home, not by the State but by his
mother because she needed to make arrangements for him and his siblings while

she was incarcerated. The dependency petition was filed only after E.H. was

abused and neglected by the family friends entrusted with his care. Although it

took about eight months to find a suitable foster home for E.H., he had been living

with his foster parents since January 2015, nearly two years before the motion to

appoint counsel was considered. He remains there today, and the record reveals no

concerns about the stability or safety of his current placement. And being returned

prematurely to his mother's home(which the record does not indicate was unsafe

in the first place) was not an available option at the time due to her incarceration.

Thus,the generalized interests recited by the trial court do not accurately

reflect the individualized interests actually at risk for E.H. when his mother moved

to appoint counsel for him. It is therefore not surprising that the court saw "no
benefit to [E.H.] in appointing counsel at this juncture." Id. at 10. At that time,

there was no risk that E.H. would be erroneously deprived of the interests that the

court recognized. And contrary to the lead opinion's view, the fact that the motion

to appoint counsel was initially heard by a commissioner at a review hearing where

24
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

visitation was also at issue does not mean that visitation was the only interest at

risk for E.H.^ Lead opinion at 23-24. E.H.'s mother did not move to appoint

counsel for that specific review hearing; she moved to appoint counsel for E.H. in

all of the proceedings going forward.

In fact, there was an intolerably high risk that E.H. would be erroneously

deprived of important protected interests when his mother moved to appoint

counsel for him. E.H., like every child in Washington, has a protected statutory

right "to be heard in his or her own behalf and a protected liberty interest in

maintaining relationships with his family. RCW 13.34.090(1); M.S.R., 174 Wn.2d

at 15-16. E.H. has already been erroneously deprived ofthe former, and the latter

was, and still is, at risk of erroneous deprivation, a risk that continues to increase

over time.

2. E.H. has been erroneously deprived of his right to be heard

As discussed above, E.H. has the right to be heard in his own behalf. RCW

13.34.090(1). This unambiguous statutory right gives rise to a protected liberty

interest, and under the particular circumstances presented, E.H. has been

erroneously deprived of it. At the time of the motion for appointed counsel, the

^ The decision of the superior court commissioner is not before us. Contra lead opinion
at 24. The motion to appoint counsel was decided by a superior courtjudge following a motion
to revise the commissioner's decision. Id. at 4. In a motion for revision, ajudge reviews a
commissioner's decision de novo, and appellate courts review only the judge's decision.
Faciszewski v. Brown, 187 Wn.2d 308, 313 n.2, 386 P.3d 711 (2016).

25
In re Dependency ofE.H. & S.K.-P.,I:Io. 94798-8
(Yu, J., dissenting in part)

risk of erroneous deprivation was very high because E.H.'s position was(and

remains) directly at odds with the position of his CASA and the State: E.H. wants

to reunite with his mother, while the CASA and the State argue that termination of

parental rights is in his best interests. When the court denied appointed counsel,

that high risk became a certainty, and E.H. was erroneously deprived of his right to

be heard.

Although E.H. cannot reunite with his mother right now, she is scheduled to

be released in July 2019, when E.H. will still have almost half of his childhood

ahead of him. In the meantime, he is in a stable placement with foster parents who

are willing to serve as long-term guardians for him. He has maintained a close

relationship with his mother, and she has made every possible effort to remain an

important part of his life. The CASA acknowledges long-term guardianship would

be a means of accomplishing E.H.'s goal of reunification but still advocates for

termination. An attorney who is not advocating for termination might be able to

come up with other solutions as well.

"The paramount goal of child welfare legislation is to reunite the child with

the legal parents if reasonably possible." In re Parental Rights to 187

Wn.2d 592, 597, 387 P.3d 1072(2017). This paramount goal remains in place,

even where the parent is incarcerated. Id. at 598-99. E.H. thus has a clearly stated

26
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

position favoring reunification, and there is no apparent reason why that outcome

is not a reasonable possibility in accordance with the law ofthis state.

The trial court noted that the CASA,though "somewhat leery," reported

E.H.'s stated position to the court in accordance with her statutory duty. Pet'r's

Suppl. Br., Corrected J.A. at 10; see RCW 13.34.105(1)(b). However, the position

ofthe State and the CASA,that termination is in E.H.'s best interests, directly

conflicts with E.H.'s stated desire to reunite with his family.

The CASA is required to represent and advocate for termination in order to

comply with her statutory duties, but termination and reunification are mutually

exclusive outcomes. RCW 13.34.105(l)(f). No one could possibly advocate for

both at the same time. The CASA's assessment of E.H.'s best interests therefore

make it impossible for her to represent his position. As discussed above, reporting

a child's position while strongly advocating against it does nothing to protect a

child's right to be heard. And in E.H.'s case, the CASA has an attorney to

represent and advocate for her position. E.H., who has far more at stake in this

case than the CASA ever will, does not.

Once E.H. and the CASA diverged on their respective positions, there was

no way for E.H. to exercise his right to be heard in his own behalf without

appointed counsel. The trial court's ruling denying appointed counsel was

therefore an erroneous deprivation of that right. I would reverse.

27
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

The lead opinion appears to agree, noting that "when a child old enough to

voice a preference is rendered voiceless in the proceedings because [his or her]
stated wishes are misaligned with [the CASA's] assessment of[the child's] best

interests, appointment of counsel is likely proper." Lead opinion at 16. That is

precisely E.H.'s situation. I therefore do not understand how the lead opinion can
affirm the ruling denying counsel for him on a case-by-case basis. Id. at 24.

3. Without counsel, E.H. faces an unacceptably high risk of being
erroneously deprived of his family relationships

E.H. also has a protected liberty interest in maintaining his relationships with

his family. M.S.R., 174 Wn.2d at 15-16; RCW 13.34.020. This includes visitation

with his siblings as well as his mother because "familial bonds stem notjust from

biology, but also from the intimacies of daily association." Shields, 157 Wn.2d at

152(Bridge, J., concurring). At the time the trial court denied appointed counsel,

E.H. faced a high risk of being erroneously deprived of his protected interest in his

family relationships.

In E.H.'s case, leaving open the possibility of appointing counsel when the

State petitioned for termination of parental rights was not sufficient to diminish
this risk. Contra lead opinion at 24. Dependency and termination proceedings do

not deal with discrete events having isolated effects, but with the ongoing life,

relationships, and well-being ofthe child and his or her family. Everything that

28
In re Dependency ofE.H. & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

happens in a dependency case can affect what happens in a subsequent termination

case. And while not all dependencies lead to termination, for E.H,, termination of

parental rights was not, and is not,"merely potential or hypothetical." E.S., 171

Wn.2d at 705. Reunification is supposed to be the goal of dependency

proceedings. RCW 13.34.020; 187 Wn.2d at 597. However,the CASA

was already recommending termination as the most appropriate outcome when the

trial court denied the motion to appoint counsel. The possibility of termination has

steadily increased since then.

Notably, while review was pending before this court, E.H.'s mother filed an

emergency motion to stay the trial court proceedings. The case was about to move

to the termination stage, with the trial scheduled to begin in early June. The CASA

opposed staying the proceedings, reflecting her position that termination is in

E.H.'s best interests. This court, however, granted the stay, recognizing that

regardless of whether termination should ultimately be ordered, that decision

cannot be made before this court has determined whether E.H. has been

erroneously deprived of his right to appointed counsel.

In sum, because the trial court did not sufficiently account for the high risk

that E.H. would be erroneously deprived of protected interests under the particular

circumstances presented, I would reverse the ruling denying counsel.

29
In re Dependency ofE.H & S.K.-P., No. 94798-8
(Yu, J., dissenting in part)

CONCLUSION

I agree that the joint motion to seal should be granted, but I would hold that

E.H. is entitled to appointed counsel in accordance with even the minimum

standards set by the federal due process clause. These holdings would be sufficient

to resolve the pending issues presented, so I dissent only in part.

However, as my analysis shows, article I, section 3 of the Washington

Constitution is more protective of a child's right to representation in dependency

cases than the Fourteenth Amendment, and our current system of appointing

counsel on a discretionary, case-by-case basis is failing to adequately protect the

rights of children in dependency cases as a matter of Washington law.

30
In re Dependency ofE.H. & S.K.-F., No. 94798-8
(Yu, J., dissenting in part)

31
In the Matter ofthe Dependency ofE.H. tSc S.K.-P.

No. 94798-8
(consol. w/94970-1)

MADSEN,J.(concurring in dissent)—I agree with the lead opinion that the joint

motion to seal should be granted. I write separately to agree with the dissent that E.H. is

entitled to appointment of counsel under the standards set by the federal due process

clause. I also agree with the dissent that this is sufficient to resolve the issues presented

in this case. Accordingly, I concur in Part B of Justice Yu's dissent.