In re N.G.

510 P.3d 335

IN RE the DEPENDENCY OF: N.G.

No. 100008-1

Supreme Court of Washington, En Banc.

Filed: June 2, 2022

Jennifer L. Dobson, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Petitioner.

Julie Ann Turley, Wash. State Attorney General's Office, 1250 Pacific Ave. Ste. 105, Tacoma, WA, 98402-4318, Kelly Paradis, Wash. State Attorney General's Office, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, Karl David Smith, Wash. State Attorney General's Office, P. O. Box 40100, Olympia, WA, 98504-0100, for Respondent.

Peter B. Tiller, The Tiller Law Firm, P. O. Box 58, Centralia, WA, 98531-0058, for Respondent Intervenor.

OWENS, J.

¶1 An appellate court may accept interlocutory review of a lower court order if the decision "substantially alters the status quo or substantially limits the freedom of a party to act." RAP 2.3(b)(2) ; RAP 13.5(b)(2). This case asks us to clarify what "substantially alters the status quo" entails. Because court commissioners often decide whether to accept review in unpublished orders, there is little guidance on how to interpret RAP 2.3(b)(2) and RAP 13.5(b)(2). One of the few cases that has discussed this issue, State v. Howland , 180 Wash. App. 196, 207, 321 P.3d 303 (2014), held discretionary review is available under RAP 2.3(b)(2) if the decision has "an immediate effect outside the courtroom" and does not merely "alter[ ] the status of the litigation itself."

¶2 Because the Howland standard comports with the Rules of Appellate Procedure (RAPs) as a whole, scholarly articles, and this court's tendency to disfavor interlocutory review, the court adopts Howland ’s interpretation. Applying Howland to the case before us, the Court of Appeals correctly denied the mother's motion for discretionary review. Although the trial court committed probable error when it failed to articulate why it allowed permissive intervention under CR 24(b)(2), the intervention of the dependent child's former stepfather did not have an immediate effect outside the courtroom. Consequently, the Court of Appeals did not commit probable error in denying discretionary review. Accordingly, we affirm the Court of Appeals and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶3 N.G., the child who is the subject of this dependency proceeding, was born to his mother, M.S., in 2011. N.G.’s father has no meaningful relationship with N.G. M.S. met J.R., permissive intervenor in this case, in 2014. M.S. and J.R. had a child, N.G.’s half-brother, and married in 2015 but divorced in 2016. The children remained with M.S. and had regular visits with J.R.

¶4 In August 2020, the Department of Children, Youth, and Families (the Department) received a report that M.S. was neglecting the children by locking them in their bedrooms for long periods of time, exposing them to drug paraphernalia, and failing to properly feed them. In October, the Pierce County juvenile court entered an agreed shelter care order that placed N.G. and his half-sibling with J.R. M.S. agreed to this placement in the November dependency order.

¶5 In the same month, J.R. moved for the juvenile court to grant concurrent jurisdiction over both children in family court so J.R. could modify his son's parenting plan and petition for nonparental custody of N.G. The juvenile court granted the motion as to J.R.’s son but denied concurrent jurisdiction for N.G. "at this time." Sealed Clerk's Papers (CP) at 12. Despite concurrent jurisdiction over N.G. being denied, J.R. petitioned for de facto parentage in family court in December. Although the family court proceedings are not included in the record, according to the parties the petition is still pending.

¶6 J.R. then filed a motion to intervene in the dependency. J.R. argued he should be allowed to intervene as of right under CR 24(a) as a de facto parent or permissively under CR 24(b)(2). M.S. opposed J.R.’s motion to intervene, arguing that J.R. had not been adjudicated N.G.’s de facto parent and that intervention was not in N.G.’s best interest because J.R. favored his biological son over N.G. N.G.’s guardian ad litem supported J.R.’s motion to intervene, observing N.G. has a bonded relationship with J.R. and refers to J.R. as " ‘Dad.’ " CP at 101-02.

¶7 The juvenile court granted J.R.’s motion to intervene under CR 24(b) without explaining its reasoning. M.S. filed a motion for discretionary review in Division Two of the Court of Appeals, arguing J.R.’s permissive intervention was a probable error that substantially altered the status quo under RAP 2.3(b)(2). The Court of Appeals commissioner denied the motion, explaining that although it was probable error to allow J.R. to intervene under CR 24(b) without addressing the possible conflict of interest between M.S. and J.R., the error did not substantially alter the status quo as defined by Howland . The Court of Appeals denied M.S.’s motion to modify the commissioner's ruling, and M.S. filed a motion for discretionary review under RAP 13.5(b)(2). This court granted the motion to settle the meaning of "substantially alters the status quo" in RAP 2.3(b)(2) and RAP 13.5(b)(2) and to determine if J.R.’s permissive intervention satisfies those criteria.

ANALYSIS

A. RAP 2.3(b)(2) and RAP 13.5(b)(2) ’s Use of "Substantially Alters the Status Quo" Unambiguously Requires an Immediate Effect outside of the Courtroom

¶8 The main issue on appeal is how to interpret RAP 2.3(b)(2) and RAP 13.5(b)(2). Interpretation of a court rule is a question of law we review de novo. In re Citizen Complaint by Stout , 198 Wash.2d 180, 184, 493 P.3d 1170 (2021). RAP 2.3(b) provides criteria for when the Court of Appeals may grant discretionary review of a trial court decision, while RAP 13.5(b) provides criteria for when this court may grant discretionary review of an interlocutory decision by the Court of Appeals. The parties agree the rules should be interpreted similarly because the language of the two rules are substantively identical. The parties also agree the rules’ language is unambiguous. However, M.S. argues the plain language of RAP 2.3(b) and RAP 13.5(b) mandates a broad reading with no outside effects requirement such as those dictated by Howland , while the Department and J.R. argue the Howland outside effects requirement is the correct interpretation. Because the structure and language of the RAPs, scholarly articles, and the drafting history of the RAPs support an outside effects requirement, the court adopts the Howland outside effects interpretation of RAP 2.3(b)(2) and RAP 13.5(b)(2).

i. RAP 2.3(b)(2) and RAP 13.5(b)(2) Are Unambiguous

¶9 RAP 2.3(b)(2) states the Court of Appeals may accept discretionary review if the "superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act." RAP 13.5(b)(2) uses identical language to describe when this court may accept an interlocutory Court of Appeals decision for discretionary review. Both parties argue "substantially alters the status quo" is unambiguous but offer significantly different interpretations of the term. M.S. argues "substantially alters the status quo" supports a broad reading consistent with the writs system before the RAPs were enacted. On the other hand, the Department and J.R. argue "substantially alters the status quo" supports incorporating an outside effects requirement as the Court of Appeals held in Howland .

¶10 We interpret court rules using rules of statutory construction. State v. McEnroe , 174 Wash.2d 795, 800, 279 P.3d 861 (2012). If a rule is plain on its face, the court must give effect to its plain meaning. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). Under the plain meaning rule, the language of a contested rule is "not read in isolation but ‘in context, considering related provisions, and in light of the statutory or rule-making scheme as a whole.’ " Stout , 198 Wash.2d at 184, 493 P.3d 1170 (quoting State v. Stump , 185 Wash.2d 454, 460, 374 P.3d 89 (2016) ). The court may use dictionary definitions to aid in interpreting terms not defined in the rule making scheme. Am. Legion Post No. 32 v. City of Walla Walla , 116 Wash.2d 1, 8, 802 P.2d 784 (1991).

¶11 The RAPs do not define the term "status quo," so we first look to a dictionary definition. Black's Law Dictionary defines "status quo" as "[t]he situation that currently exists." BLACK'S LAW DICTIONARY 1703 (11th ed. 2019). This definition does not aid in interpreting RAP 2.3(b)(2) and RAP 13.5(b)(2) because it does not indicate whether "status quo" encompasses all litigation decisions or is limited to decisions that have impact outside the courtroom.

¶12 Next, the court looks to related rules and the RAPs as a whole. RAP 2.3(b) and RAP 13.5(b) are parallel rules that dictate when discretionary review may be granted to review a trial court's decision and a Court of Appeals interlocutory decision respectively. The subsections in RAP 2.3(b) and RAP 13.5(b) provide alternative criteria the lower court decision can meet to qualify for discretionary review. Subsection (b)(1) provides review may be granted if the lower court has committed "an obvious error which would render further proceedings useless" while (b)(3) provides review if the lower court "has so far departed from the accepted and usual course of judicial proceedings" as to warrant exercising appellate jurisdiction. When read as a whole, RAP 2.3(b) and RAP 13.5(b) are comprised of "specific and stringent" criteria that reflect the appellate system's "plain and intentional bias against interlocutory review." Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure , 61 WASH. L. REV. 1541, 1545, 1547 (1986).

¶13 The structure of the rules clarify how to interpret "substantially alters the status quo." The criteria in RAP...