Biryukova v. State (In re E.M.)

458 P.3d 810

In the MATTER OF the DEPENDENCY OF E.M. (D.O.B.: 07/10/15), A Minor Child.

Julia Morgan Biryukova, Appellant,

v.State of Washington, Department of Child, Youth, AND Families, Respondent.

No. 78985-6-I

Court of Appeals of Washington, Division 1.

FILED: February 24, 2020

Washington Appellate Project, Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Petitioner.

Soc. & Hlth. Svcs. A.g. Office, Attorney at Law, 800 Fifth Ave, Suite 2000, Ms-tb-14, Seattle, WA, 98104, Kelly L. Taylor, Ofc. of the Atty. General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

Kathleen Carney Martin, Dependency CASA Program, 401 4th Ave. N, Rm. 3081, Kent, WA, 98032-4429, for Guardian(s) Ad Litem.

PUBLISHED OPINION

Mann, A.C.J. ¶1 We granted discretionary review in this dependency action to determine whether a family member can retain counsel for a dependent child, without seeking appointment by the trial court. Julia Morgan, E.M.’s mother, appeals the trial court’s order striking the notice of appearance of an attorney retained by E.M.’s maternal grandmother. Morgan contends that the trial court erred in concluding that RCW 13.34.100(7) applies to privately retained attorneys. We disagree and affirm.

I.

¶2 Morgan has three children; her youngest, E.M. is the subject of this dependency. Morgan’s other two children from a previous relationship are M.M. and S.M. M.M. is in the care of her father and lives in Florida. Morgan does not have contact with M.M.

¶3 In November 2011, S.M. disappeared. Morgan’s car ran out of gas so she and M.M. walked to a gas station, leaving two-year-old S.M. in the car. When Morgan returned to the car, S.M. was gone. Law enforcement confirmed that Morgan’s car had not run out of gas but were unable to locate S.M. To this day, S.M. has never been found. Criminal charges have not been filed, but the case remains open and ongoing.

¶4 When E.M. was born July 2015, the hospital contacted Child Protective Services (CPS) expressing concerns about Morgan’s mental health. Morgan has been diagnosed with obsessive compulsive disorder (OCD). E.M.’s father was incarcerated when E.M. was born, has a significant criminal history including domestic violence and violations of no-contact orders, and a history of substance abuse.

¶5 The Department filed a dependency petition for E.M. shortly after he was born. Morgan agreed to the dependency and the court placed E.M. in the care of his maternal grandmother, Nadia Biryukova. The dependency order allowed Morgan to live in Biryukova’s home with E.M., but required supervision of Morgan’s contact with E.M. As time went on, the court relaxed Morgan’s supervision requirements.

¶6 In April 2017, Biryukova reported to the Department that Morgan took E.M. out of her home around 8:30 p.m., bathes E.M. late at night, and that she was concerned for E.M.’s wellbeing and would lose another grandchild. The Department filed a motion to place E.M. in foster care. The trial court ordered that Morgan move out of Biryukova’s home, rather than placing E.M. in foster care. Morgan sought discretionary review of the trial court order, but this court denied her request. In addition, the Department sought new psychological evaluations to address S.M.’s disappearance and Morgan’s trauma associated with not having S.M. or M.M. in her life. Morgan refused to discuss S.M.’s disappearance at the recommendation of her criminal attorney.

¶7 Morgan began residing with her friend and mentor James Kelly. Kelly actively participated in E.M.’s life as a visitation monitor for Morgan. In May 2018, Morgan moved for a change of placement from Biryukova to "another suitable person," naming Kelly as the proposed placement. Biryukova supported the placement. E.M.’s father filed a competing motion to change placement, contending that E.M. should be placed in a licensed foster home because it was a more neutral environment that would support his reunification with E.M. The Department opposed placement with Kelly and deferred to the court on the father’s placement suggestion.

¶8 A King County Court Commissioner heard argument on Morgan’s motion to change placement on June 1, 2018. The Commissioner granted Morgan’s motion with certain conditions and denied the father’s motion, concluding that foster care was not in E.M.’s best interest.

¶9 E.M.’s father filed a motion to revise the Commissioner’s order, which the Superior Court granted. The court cited concerns for E.M.’s safety and indicated that placement in foster care was in E.M.’s best interest. The Department removed E.M. from Kelly’s home and placed him in foster care, where he has remained for the past year.

¶10 Five days after E.M. was placed in foster care, attorney Aimee Sutton¹ filed a notice of appearance as counsel for E.M. Biryukova retained Sutton for E.M. and paid a deposit into a trust account on E.M.’s behalf. On July 18, 2018, Sutton contacted the Department’s counsel, Mary Ann Comiskey, to get E.M.’s contact information. Comiskey indicated that she needed "a few days to determine whether [she was] going to oppose this ‘representation’ or not." At the time, the Department did not know who had retained Sutton on E.M.’s behalf.

¶11 On July 19, 2018, a court appointed special advocate (CASA), Emma Bergin, appeared in the case.² Sutton attempted contact with the Department again on July 23, 2018. Sutton filed a motion to reconsider E.M.’s placement in foster care on July 23, 2018, without meeting E.M. because "the right to family integrity is a legal right" and Sutton "believed that E.M. was more likely than not to suffer harm unless an action to reconsider placement in foster care was taken." On July 24, 2018, Comiskey responded that she would not provide E.M.’s contact information and that "[u]ntil the Judge makes a decision about [Sutton’s] representation, the Department will not allow [Sutton] to attend a visit with [Morgan]."

¶12 In addition to the motion for reconsideration, Sutton requested an evidentiary hearing on the proposed change of placement, arguing that the trial court violated state law by not deferring to Morgan’s wishes in regards to E.M.’s placement. The trial court issued a preliminary order denying Sutton’s request for an evidentiary hearing on the motion for reconsideration. The trial court required all parties to file a written response to "address the child’s request for alternate placement with the maternal grandmother."

¶13 On July 30, 2018, the Department filed an objection to the notice of appearance by Sutton and its response to the motion for reconsideration. The Department social worker provided a declaration explaining her "serious concerns" about placing E.M. in Biryukova’s care due to a contentious relationship between Morgan and Biryukova. E.M.’s father filed a response to the motion for reconsideration and moved to strike Sutton’s appearance. Morgan filed a motion for reconsideration, supporting Sutton’s motion. Bergin filed a response to Sutton’s motion and stated she took "no position on the placement motion due to her recent appointment." Kathleen Martin, attorney for the CASA program, argued that the notice of appearance by Sutton was "contrary to the procedure required by RCW 13.34.100" because Sutton was attempting to appear "without an order for appointment of counsel for the child."

¶14 The dependency court struck Sutton’s notice of appearance and determined that the motion for reconsideration was not properly before the court. The court relied on RCW 13.34.100 and Rules of Professional Conduct (RPC) 1.2, 1.4, and 1.8. The court concluded that "if anyone seeks to have an attorney appointed for [E.M.], they must follow the provisions set forth in RCW 13.34.100(7)." Morgan sought discretionary review of this decision. We granted review.

II.

¶15 Morgan argues that the dependency court lacked authority under RCW 13.34.100 to strike Sutton’s notice of appearance. Statutory interpretation is a question of law and is reviewed de novo. Jametsky v. Olsen, 179 Wash.2d 756, 761-62, 317 P.3d 1003 (2014). When determining the meaning of a statute, we give effect to the plain meaning of the language. Jametsky, 179 Wash.2d at 762, 317 P.3d 1003. If the statute is ambiguous, the court may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent. Jametsky, 179 Wash.2d at 762, 317 P.3d 1003. Juvenile court statutes are to be liberally construed, with the welfare of the minor children being the primary consideration. State ex rel. Smith v. Superior Court of King County, 23 Wash.2d 357, 360, 161 P.2d 188 (1945).

¶16 If, however, the dependency court does have an oversight role in the appointment of private counsel for dependent children, our review is for abuse of discretion. Pub. Util. Dist. No. 1 of Klickitat County v. Int’l Ins. Co., 124 Wash.2d 789, 812, 881 P.2d 1020 (1994) (finding the trial court did not abuse its discretion when it refused to disqualify insured public utility district’s counsel due to potential prejudice to insureds).

A.

¶17 At the outset, the State contends that this case is moot because attorney Sutton is now a judge on the King County Superior Court and cannot serve as E.M.’s counsel. "A case is moot if a court can no longer provide effective relief." Orwick v. City of Seattle, 103 Wash.2d 249, 253, 692 P.2d 793 (1984). The Department’s position on mootness in this case is too narrow. We can provide effective relief because, if we reverse, Biryukova could retain other private counsel. Thus, this case is not moot.

B.

¶18 Morgan contends that the trial court lacked authority under RCW 13.34.100(7)(b)(i) to strike Sutton’s appearance. We disagree.

¶19 In Washington, children in dependency or termination proceedings do not have a categorical due process right to court-appointed counsel. In re Dependency of S.K.-P., 200 Wash. App. 86, 95, 401 P.3d 442 (2017). "Statutory law and court rules grant ...