In re H.W.

In the Matter of the Dependency of: H.W.^[†]

No. 38044-1-III

Court of Appeals of Washington, Division 3

July 7, 2022

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.C.J.

Ms M.W.,^[1] the presumed father of H.W., appeals the dependency court's denial of her motion to appoint an attorney at public expense for her daughter. We agree with the parties that reversal is required because the court failed to conduct a sufficient analysis of the relevant due process factors. We reverse the dependency court's order and remand with instructions.

FACTS

This appeal stems from the dependency proceedings of H.W H.W.'s mother is Ms. W., her biological father is Mr. B and her presumed father is Ms. M.W Facts underlying dependency

On November 22, 2020, Ms. M.W. took H.W.'s infant sister, A.W.^[2] to an emergency room in Grants Pass, Oregon. The family was traveling from their home in Spokane, Washington, to visit relatives in California when they stopped at a motel where A.W. found a "baggie" in a corner of the bed and began sucking on it. A.W. tested positive for opiates, amphetamines, and benzodiazepines. The Oregon Department of Human Services (DHS) arrived at the hospital to investigate.

Both Ms. W. and Ms. M.W. maintained that the drugs were not theirs. Ms. W. later admitted to a history of substance abuse and stated she had used opiates prior to her pregnancy with A.W. Ms. W. exhibited signs of intoxication but refused to submit to a urinalysis and became combative with the DHS social worker.

Ms. W. and Ms. M.W. have an extensive history of Child Protective Services (CPS) involvement. Between March and November 2020, eight reports were filed regarding concerns for the safety of their children, with allegations of domestic violence, substance abuse, unaddressed mental health disorders, and criminal activities.

Procedure

On November 30, 2020, the Washington^[3] Department of Children, Youth, and Families (Department) filed a dependency petition as to then-six-year-old H.W. After a contested shelter care hearing on December 10, the commissioner ordered H.W. to be temporarily placed with her grandmother.

On December 22, 2020, Mr. B. moved to intervene in the dependency, stating he was H.W.'s biological father and was willing to take placement of her. That day, the Department requested H.W. be moved to foster care because placement with the grandmother was no longer possible. Ms. M.W. opposed intervention, stating she established parentage in April 2019 and was bonded in a parent-child relationship.

On December 30, 2020, the trial court entered an order finding Ms. M.W. established paternity of H.W. by presumption, based on a birth certificate filed with the state registrar of vital statistics.

On January 5, 2021, the court placed H.W. in foster care and granted Mr. B.'s motion to intervene. On January 6, 2021, the court appointed Krystal Ruiz as guardian ad litem (GAL) to represent H.W.

On January 14, 2021, Mr. B. moved for placement of H.W. and to vacate the December 15, 2020 order establishing Ms. M.W.'s paternity. Mr. B. declared H.W. was his biological child, born out of his relationship with Ms. W. He argued Ms. M.W. was only later added to H.W.'s birth certificate without his knowledge and the order finding paternity by presumption deprives him of his paternity interest.

On January 20, 2021, the Department filed a response, opposing placement of H.W. with Mr. B. The Department argued that H.W. had been in foster care since late December, which permitted her to return to her previous school and be near her mother. The Department also argued Mr. B. had not completed the required background checks or paternity test, and changing placement before establishing paternity would not be in H.W.'s best interest.

On January 28, 2021, the GAL submitted a declaration regarding placement of H.W. She stated that H.W. "reports a loving connection with her legal father Ms. [M.W.] and she appears to be positively bonded to her." Clerk's Papers (CP) at 196. Conversely, H.W. "reports a lot of anger towards [Mr. B.]." CP at 196. H.W. believes that Mr. B. took her brother away from her mother and that Mr. B. lies about why he has done so. H.W. reports distrusting Mr. B. Ms. Ruiz noted, "Whatever the source of this dislike and distrust, whether based on truth or not, it is her reality and should not be readily dismissed." CP at 198. Ms. Ruiz agreed with the Department that H.W. should not be placed with Mr. B. at that time because H.W. is connected to Ms. W. and Ms. M.W. She recommended, among other things, that there be no discussion of the case and that H.W. should be encouraged to stay safe, follow the rules, and do her best at school until reunification occurs.

Motion underlying this appeal

On January 27, 2021, Ms. M.W. filed a motion on shortened time requesting appointment of counsel on behalf of H.W. at public expense. She acknowledged there was no automatic right to an attorney, but argued that under Mathews,^[4] it was more likely than not that H.W.'s due process rights would be protected by an attorney. She noted that H.W. had several placement options and visitation needs, it was unclear whether there was a conflict between H.W.'s best interests and her legal interests, and appointing an attorney would comport with best practices in dependency proceedings.

The Department, Mr. B., the GAL, and Ms. W. objected to Ms. M.W.'s hearing on shortened time as they had not yet read the motion. The court granted the motion for shortened time and presided over a hearing that day.

Ms. M.W. argued:

This motion comes because of the complex-complexity of this case and how many motions have been brought before that directly relate to [H.W.] and her current placement, visitation and how many parties are involved in this, including there being parties that aren't . . . established as parents that are involved in [this] case.

Asking for an attorney to be appointed for a child falls on the standard of whether it's more likely than not that her due process rights can be protected through legal counsel....There is no presumption that an attorney should not be appointed. It's just not standard practice in Spokane County but this is practice in other places in the state and most places nationwide as well.

Report of Proceedings (Jan. 27, 2021) (RP) at 13. Ms. M.W. argued that the Mathews factors supported appointment of counsel. Ms. W. deferred to the court on the issue.

Mr. B. opposed Ms. M.W.'s motion. He argued there was a danger that Ms. W. and Ms. M.W. would coach H.W. He disagreed an attorney was necessary under Mathews because they already had a "highly qualified" GAL whose report covers the interests of this child "in significant detail." RP at 18-19. He argued the GAL and the Department could sufficiently protect H.W.'s interests and "granting this request would further place this child more at the center of this litigation in a case where these children should be more allowed to be children ...." RP at 19.

The Department also opposed the motion out of concern that case information would be inappropriately shared with H.W. at her young age. It also argued there was only speculation that H.W.'s interests were not represented by the GAL.

The GAL took no position on the appointment of counsel but stated that she had clearly communicated H.W.'s statements about Mr. B.'s placement request. The GAL believed she could advocate for H.W.'s best interests while accurately reporting her stated interests. She was also concerned that the complexity of the legal system and changing case dynamics would be difficult for H.W. to understand given her young age.

Court's oral ruling

After hearing the parties' arguments, the court ruled:

I think we're presuming that a six and a half year old is gonna know what's best for them to start with. The research is pretty clear that that's quite difficult at age six and a half ....Thankfully, we do have a guardian ad litem ....

So, [H.W.] is number one, having her interests protected by the guardian ad litem. Number two, I am concerned about coaching. There's a distinction between . . . a child knowing what's going on versus statements that I have been reading most recently....

So, to put then that other added layer of this six year old child having to have legal conversations with an individual, I-I can't imagine that. There's a reason that we carve out the age of 12.... [W]e recognize that they can probably engage in that conversation.

I also have the benefit of being a guardian ad litem .... I could not imagine having a conversation with a six year old. I just-I don't think it's appropriate. There's no information at this point directly that [H.W.] has any conflict. There is no information that we don't have individuals that are not taking her best interests at heart. We do have a guardian ad litem. We do have a social worker. We do have attorneys. But at this point, no. I'm not appointing an attorney for [H.W.] at age six and a half. It is case specific. And in this case, I do not think it's appropriate.

RP at 23-25.

On January 29, 2021, the court entered an order denying Ms. M.W.'s motion and incorporating its oral ruling.

Ms. M.W. filed a timely notice of appeal, which this court accepted as a notice of discretionary review.

ANALYSIS

FAILURE TO SUFFICIENTLY APPLY MATHEWS FACTORS

Ms M.W. contends the trial court failed to address the Mathews factors before denying her motion to appoint counsel on behalf of H.W. and the appropriate remedy is to remand. The Department concedes this issue. For the reasons set forth below, we agree.

After the hearing on Ms. M.W.'s motion to appoint counsel for H.W. at public expense, the legislature amended the statute to provide the right to counse...