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June 30, 2014 Practice Points

Lack of Counsel Violates Washington Youth's Legal Rights

By Casey Trupin

For the first time in Washington state's history, an appellate court has ruled that failure to appoint counsel to a foster youth violated the youth's legal rights. In the case, In re the Dependency of J.A.,the appellate court found that the juvenile court misapplied due-process law by understating the youth's interests in his case as well as incorrectly analyzing the risk of error in the case. The appellate court also held that the government's financial interests did not outweigh the interests of J.A. in having legal counsel.

State law makes appointment of counsel completely discretionary for the vast majority of children and youth in Washington. Some counties appoint to all children, some only to adolescents, and some rarely, if ever. In 2012, the Washington Supreme Court held that, while there was no universal right to counsel for foster children in termination proceedings, some children did, in fact, have a constitutional right to counsel. In re Dependency of M.S.R., 174 Wn.2d 1, 22 n. 13, 271 P.3d 234 (2012). To determine which children, the court suggested a case-by-case analysis using the Mathews v. Eldridge due-process factors. 424 U.S. 319 (1976). While the Court made significant pronouncements about children in dependency actions, it limited its holding to children in termination trials. It also reserved the issue of whether those children had a state constitutional right to counsel in dependency or termination proceedings. No Washington appellate court had ever found a right to counsel for any dependent child.

J.A. is a 15-year-old foster youth living with developmental delays. While in care, J.A. was prescribed psychotropic medications, put in inpatient treatment, arrested, and separated from his sibling. He wanted to return to his mother's care, but his requests were denied. J.A. filed a motion to appoint counsel at public expense, arguing it was required under the federal and state constitutions, as well as under state law. The Pierce County Juvenile Court denied the motion and, even after the foster mother indicated she was no longer interested in adopting J.A., denied a subsequent motion for reconsideration. The motions were largely unopposed, though the GAL wrote and submitted a letter arguing that J.A. did not need an attorney.

J.A. appealed and the department responded to the appeal, arguing that the juvenile court properly exercised discretion. Neither the GAL nor J.A.'s parents weighed in on the appeal. The department's position was that the motion was not appealable and that the trial court had acted properly, and rejected J.A.'s argument that all children in dependencies had a state or federal constitutional right to counsel.

In the appellate court's opinion, issued June 11, 2014, it held that the trial court had misapplied all three Mathews factors. First, the court held that a "child's fundamental liberty interests are at stake, not only in the initial hearing, but also in the series of hearings and reviews that occur as part of a dependency proceeding once a child comes into state custody." In other words, children's important due-process rights do not come into play during the dependency and termination trials but in all judicial hearings in their case. The state had argued that the court should not review the case as an interlocutory appeal.

Second, the appellate court held that children's fundamental liberty interests and rights include the right to the "'affection and care of his parents," "freedom of personal choice in matters of family life[,]" and reiterated that a foster "child has a strong liberty interest in the parent-child relationship that is equal to or greater than that of parents." (Citations omitted). The state had defended the trial court's finding that J.A.'s interests in his case were "not that great."

Third, the appellate court held that "[b]ecause a case-by-case analysis allows wide room for judicial discretion, subjective determinations can magnify the risk of erroneous fact-findings." The trial court had argued that its team (social worker, GAL, assistant attorney general, and parents' attorneys) would adequately protect J.A., at the same time acknowledging they had failed to keep him out of detention after a recent "meltdown."

Fourth, in a footnote, the appellate court noted that lawyers are "especially important [. . .] to a child with a disability." The department and the trial court argued that his disabilities would limit an attorney's role and thus diminished the need for him to have one.

Finally, the appellate court rejected the argument that Pierce County's limited resources to pay an attorney outweighed the other factors.

The appellate court indicated that its holding was limited to J.A.'s right to counsel under a discretionary statute, not under either constitution. This holding was despite the court's use of the Mathews due-process test that the MSR court indicated was necessary to determine whether a child had a constitutional right to counsel.

Casey Trupin is with Columbia Legal Services.

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