WA court says child should have been appointed counsel

09/11/2017, Litigation, Abuse/Neglect/Dependency - Children

In Lee v. Dept' of Soc. & Health Servs, 404 P.3d 575 (Wash. App. 2017), the Washington Court of Appeals (Division One) held that the trial court erred when it failed to appoint independent counsel for a child in a dependency proceeding.  The Court of Appeals rejected the trial court's conclusion that attorneys for the child's parents adequately represented the child.  The court pointed out that an attorney for the child could have brought a number of claims on behalf of the child (who had serious health issues), such as seeking medical services prior to the child's removal from the family home, and that such an attorney could have broadened the scope of appointment by seeking appointment as a reasonable accommodation under the Americans with Disabilities Act (such appointments are explicitly authorized in Washington State via Court Rule GR-33).


Turning to the authority for such appointment, the court noted that the juvenile courts have discretion to appoint counsel for any child pursuant to RCW 13.34.100(7)(a), and that in In re Dependency of MSR,271 P.3d 234 (Wash. 2012), the Supreme Court of Washington held that trial courts weighing whether to excerise such discretion should look at the private interests at stake, the government's interest, and the risk of erroneous deprivation.  In this case, the trial had not done any such analyis, and the Court of Appeals determined that the balance of factors weighed in favor of representation, in part due to the "unique circumstances of [the child's] medical conditions."

Appointment of Counsel: discretionary Qualified: no