April 01, 2012

Due Process Confers a Right to Counsel for Children in Some Cases

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Trial court did not err in terminating mother’s parental rights where it did not appoint an attorney for her children. Statute that gave court the discretion to appoint a child’s attorney on a case by case basis was not unconstitutional and mother did request an attorney for them at trial.

In re MSR, 2012 WL 664005 (Wash.).

A mother’s rights were terminated after many years of involvement with the child welfare system. She had multiple episodes of uncontrolled rage and physical attacks on those around her and four incidents that led to her children being removed. After years of failing to improve despite services, the state sought to terminate her parental rights.

During the termination proceeding, the state moved to prohibit the children from testifying, arguing that it would cause them undue trauma. The guardian ad litem (GAL) supported the motion.

The mother opposed the motion, indicating the court should hear from the children before making a decision in the case. In the alternative, she argued that the court could hear from the children in chambers.

The trial judge granted the state’s motion in limine excluding the children’s testimony. The trial court also found that appropriate services had been offered and the mother had failed to follow through or show improvement. The trial court terminated the mother’s parental rights, and the mother appealed.

The Washington Supreme Court found the record supported the trial court’s termination findings. The court went on to address the mother’s claim that her children had a constitutional right to counsel.

Washington statute and court rules give judges discretion to appoint counsel for children and children 12 years and older are to be informed of their right to counsel.

The mother argued on appeal that children should be appointed counsel in every case.

The court applied the three-part Matthews v. Eldridge factors cited by the U.S. Supreme Court in Lassiter v. Dep’t of Soc. Servs..

The court held that a child’s liberty interest in dependency proceedings is different, but just as important, as a parent’s. On one hand, the child risks being physically moved to a different home. On the other hand, the child also has an interest in not being harmed once the state has intervened. Thus, the potential of returning the child to an abusive parent is implicated.

The state also has a great interest in a dependency case, “an urgent interest in the welfare of the child.”

As to the risk of erroneous deprivation and the value of additional procedures, the mother and several amici argued the GAL and court appointed special advocates (CASA) inadequately protect the child’s interest because they represent the substituted judgment of the GAL or CASA not the child’s expressed wishes.

The state argued the existing statutory scheme provided adequate protection because GALs are appointed absent good cause shown to the contrary. The state noted further that the GAL is statutorily required to inform the court of the child’s expressed views.

The Washington Supreme Court held that a child’s right to counsel was not universal, but was comparable to a parent’s right to counsel in dependency and termination proceedings. Trial courts should balance the Matthews factors on a case-by-case basis.

Regarding the case at bar, because the mother did not request counsel for her children at trial, the trial court did not err in not appointing counsel. The trial court’s order terminating the mother’s parental rights was affirmed.