Discretionary appointment of counsel

The court has discretion to appoint counsel for any child upon the court’s own initiative or by request of anyone, and the state must inform children twelve or older of their right to request counsel. Wash. Rev. Code § 13.34.100(7); see also Wash. Rev. Code § 13.34.212(2)(a) (“The court may appoint an attorney to represent the child’s position in any dependency action on its own initiative, or upon the request of a parent, the child, a guardian ad litem, a caregiver, or the department.”).

In an unpublished decision from the Court of Appeals of Washington, Division 2, In re J.A., the appellants argued that the trial court abused its statutory discretion under Wash. Code § 13.34.100 in failing to appoint counsel for a foster child. No. 45134–4–II, 2014 WL 2601713 (Wash. Ct. App. June 10, 2014) (unpublished).  They also argued that the child (and all children) have a due process right to counsel under both the federal and state constitutions.

The Court of Appeals ruled that the trial court had abused its discretion under the statute in not appointing counsel, given the lack of stable placement for the child and the general risks of error in dependency proceedings, but chose not to reach the larger constitutional question.  In finding the abuse of discretion, the court applied the Mathews v. Eldridge factors to the statute and found that the foster child had both family and physical liberty interests at stake, plus the trial court’s earlier determination that the foster child was currently in a safe placement had been called into question by a change of facts.  The court also reasoned that the risk of error in dependency proceedings is generally high and that guardian ad litems (GALs) / Child Appointed Special Advocates (CASAs) cannot protect the legal interests of the child.

View the documents from the case by visiting our comprehensive bibliography section on J.A.

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Note:  Unpublished decisions are included here for illustrative purposes only.  Wash. Gen. R., Rule 14.1(a) indicates that unpublished opinions have no precedential value and are not binding, but “unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as non-binding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.”