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Children's Rights Litigation

In re Dependency of M.S.R. and T.S.R., No. 85729-6 (Wash. Mar. 1, 2012)


In In re Dependency of M.S.R. and T.S.R., No. 85729-6 (Wash. Mar. 1, 2012), the Washington Supreme Court ruled that children in proceedings regarding the termination of parental rights (TPR) do not have a categorical right to counsel under the Fourteenth Amendment (there was no ruling on the state constitution for procedural reasons). The court found that the Washington statute providing for the discretionary appointment of counsel for children met the dictates of due process.

The court rejected the state’s argument that children have a lesser interest in proceedings than the parents, finding that,

for the purposes of Mathews, the child’s liberty interest in a dependency proceeding is very different from, but at least as great as, the parent’s . . . children have fundamental liberty interests at stake in termination of parental rights proceedings. These include a child’s interest in being free from unreasonable risks of harm and a right to reasonable safety; in maintaining the integrity of the family relationships, including the child’s parents, siblings, and other familiar relationships; and in not being returned to (or placed into) an abusive environment over which they have little voice or control.

Oddly, the court, in later characterizing the state’s interest as “also very strong” due to having “an urgent interest in the welfare of the child,” did not explain how such an interest of the state was contrary to the child having counsel.

The court conceded that the purpose of guardians ad litem (GALs) is not to protect the legal rights of children and noted the objection that “sometimes the GALs are opposed to asserting the legal rights of a child and oppose appointment of counsel because counsel may advocate for a viewpoint other than the GAL’s view of what is in the best interest of the child.” The court said that this is “certainly something a trial judge may take into consideration when deciding whether to appoint counsel,” although it didn’t explain exactly how that would work.

The court essentially rejected the argument that the rights of children fall outside the Lassiter framework, saying, “[W]e find the United States Supreme Court’s discussion of the rights of parents facing the termination of the parent child relationship in Lassiter instructive in analyzing the rights of a child facing the termination of the very same relationship.” It then went on to use Mathews for the discussion, although it does not ever mention the presumption from Lassiter.

The court ultimately concluded that

each child’s circumstances will be different. An infant who cannot yet form, articulate, or otherwise express a position on any relevant issue will not benefit as much from the attorney/client privilege or from counsel’s advocacy for the right to be heard at hearing as would a 10, 12, or 14 year old; there are, of course, many circumstances in between. Surely, under appropriate circumstances, an infant would be entitled to counsel, but we use the infant as an example to illustrate that the Mathews factors may weigh differently when applied to different children. Under RCW 13.34.100(6), the trial judge is permitted but not required to consider the issue of appointment of counsel. When the issue is properly raised under the statute, the trial judge, subject to review, should apply the Mathews factors to each child’s individual and likely unique circumstances to determine if the statute and due process requires the appointment of counsel.

—John Pollock, coordinator, National Coalition for a Civil Right to Counsel

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