By Jessica Breslin
The Washington Supreme Court recently declined to rule on whether a foster child has the right to counsel in parental rights termination proceedings. Washington remains one of a minority of states that do not require the state to provide children with their own legal representation in these proceedings. Consequently, although children arguably have the greatest interest in the outcome of the proceedings, the child is left without a voice in the courtroom and is often the only party unrepresented by legal counsel.
The Court’s decision, in In re Termination of AR and DR, came after plaintiffs sought to reverse the termination of parental rights, in part, because the children had not been appointed counsel in the case. The trial court had originally terminated AR and DR’s mother’s parental rights even though DR opposed termination and did not have legal representation at the hearing. The Supreme Court dismissed the case on procedural grounds, stating that there was no injured party in the case.
Currently, 30 states including California and New York guarantee legal representation for foster children when the dependency court is considering termination of parental rights.1 While some courts have ruled in favor of such a right in order to provide children with necessary due process protections and a meaningful opportunity to be heard2, most states have provided children with legal representation through statutory provisions.
These states have recognized the social, constitutional, and financial importance of affording children legal representation in family court.
When the state Department of Social and Health Services petitions to terminate parental rights, it is asking the Court to sever all ties to the child’s parents, and, sometimes, to other members of the child’s immediate and/or extended family. If the court grants the petition, the child will either be adopted or remain in foster care often with no stable parent. This has an immediate and profound effect on the child’s well-being and on his or her ability to establish lasting, supportive relationships. However, despite the consequence to the child of parental termination proceedings, the child is often the only party without an attorney.
Although the Washington Supreme Court declined to rule in DR and AR3 on whether children are entitled to counsel in parental termination proceedings4, the case serves to illustrate the problems associated with discretionary appointment of counsel and the national trend towards requiring courts to appoint counsel for children in all dependency and parental termination proceedings.
In In Re Termination of AR and DR, Washington State sought to terminate parental rights in relation to two children, a 10-year-old boy and his 11-year-old sister.5 On the trial’s first day, the mother asked the daughter’s Court Appointed Special Advocate (CASA) to inform the daughter (DR) of her right to counsel.6 Instead of discussing the issue with DR as required by state law, the CASA talked to both the girl’s therapist and her foster parent. Based on those conversations, the CASA concluded that DR would not benefit from an attorney because the attorney would “contribute to getting her (DR’s) hopes up and later being disappointed again,” among other reasons.7
The CASA had not seen DR for four years and had rarely spoken with her; the CASA thus had little opportunity to assess DR’s feelings about a termination of her mother’s parental rights or to evaluate how such termination would affect DR’s welfare.8 Despite all this, the trial court agreed that DR would not benefit from counsel, and denied the mother’s request that the Court inform her daughter of her right to an attorney.9
Although the trial court acknowledged that the CASA was advocating a position different than the one held by DR, it did not ensure there was someone advocating for DR’s stated interests and opinions.10 Even though the CASA was aware, from speaking with the foster parent, that DR opposed termination, the CASA did not advocate for this position at trial. Thus, DR was left without a voice in potentially one of the most important decisions affecting her life.
In the end, the trial court granted the termination of parental rights. AR and DR’s mother appealed the decision, arguing that the trial court erred by failing to appoint counsel.
Washington is one of only 14 states that do not require legal representation for children in parental rights cases.11 Instead, Washington leaves the question of whether or not to appoint counsel to the discretion of the court.12 Last year, the state legislature amended the statute that addresses children’s legal representation; Washington now requires that children 12 and older be informed by their guardian ad litem (GAL) of their right to request counsel, and the GAL must inform the court of the child’s preference. (The court can independently order that a child be represented by an attorney.) However, there is no mechanism to ensure that the GAL fulfills this responsibility, nor does there exist a mechanism for children under 12 to request counsel.13
If the child’s GAL or caseworker does not ensure that the child is present for the court hearing, the child will never have an opportunity to request a lawyer.14 Even if the child is old enough to request counsel under the statute, he or she may still be left without an opportunity to do so and the judge may still refuse to grant such a request for any reason, or no reason at all. Therefore, in practice, Washington provides children with only minimal access to attorney representation, and consequently the child will likely have limited ability to protect his or her constitutional rights and family connections.
In March 2009, when AR and DR’s mother appealed the trial court’s decision to terminate parental rights, the mother, along with the children (represented by Columbia Legal Services),15 argued that Washington’s system of discretionary appointment of counsel for children in dependency and parental rights proceedings violates protections afforded by both the Washington State and U.S. Constitutions.16 However, after lawyers for the children submitted opening briefs on this issue to the Washington Court of Appeals in April, the state admitted its own reversible error in not originally appointing counsel at the trial court level.17 Consequently, on September 14, 2009, the Court of Appeals reversed and remanded the parental rights termination decision to the trial court and declined to rule on the constitutional issue of a child’s right to counsel.18
Since the state’s admission of reversible error allowed the Court of Appeals to avoid ruling on the constitutional issue, the children petitioned the Washington Supreme Court for discretionary review under the substantial public interest doctrine.19 Under this doctrine, the Supreme Court may retain jurisdiction over a case it would otherwise be unable to hear if the case involves an important public interest.20
Although the children were provided legal representation, which made their claim technically moot, the Washington Supreme Court granted the children’s request for discretionary review under the substantial public interest doctrine in May 2010.21
While the matter was on appeal, the Washington State Legislature passed the statutory amendment, discussed above, requiring that a child 12 or older in a dependency or parental rights termination proceeding be notified22 by a GAL of his or her right to request counsel.23
After hearing oral arguments from the state, the children, and amici curiae (including the National Center for Youth Law),24 the Washington Supreme Court issued a decision on Feb. 1, 2011 dismissing the children’s case, stating that the Court improperly granted jurisdiction.25 With little explanation, the Court essentially said that it should not have agreed to hear the case because there is no party that is presently being injured or threatened with injury. The Court reasoned that since the statute that addressed children’s legal representation at parental rights termination proceedings had recently been amended, and since AR and DR were no longer injured parties, the Court should not have heard the case.26 On February 22, 2011, the children filed a motion for reconsideration,27 arguing that the Court still could have heard the case under the substantial public interest doctrine, even in the absence of an injured party.28 The children also argued that the amending of the statute in no way permitted the deprivation of constitutional protections.29 On April 6, 2011, the Washington Supreme Court denied the motion for reconsideration without discussion.30
The Washington Supreme Court will have another opportunity to address this important issue when the Court hears In re the Dependency of MSR and TSR. In this case, MSR and TSR’s mother, a Sudanese refugee, is appealing the termination of her parental rights in part because her children were not provided legal representation at trial. The mother is arguing that children have a constitutional right to counsel in termination proceedings. It is likely the Court will not hear the case for several months.31 In the meantime, the Court’s failure to rule on the constitutional issues and Washington’s current statutory scheme leave foster children with little protection of their interests, and Washington remains out of line with the national trend towards required representation.
