WSR 08-09-008

RULES OF COURT

STATE SUPREME COURT


[ April 4, 2008 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO NEW RAP 18.13A, RAP 18.13 AND RAP 13.5A )

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ORDER

NO. 25700-A-889


The Washington State Supreme Court Commission on Children in Foster Care and the Washington State Bar Association having recommended the adoption of the proposed amendments to NEW RAP 18.13A, RAP 18.13 and RAP 13.5A, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 3rd day of April, 2008.
For the Court
Gerry L. Alexander
CHIEF JUSTICE
GR 9 COVER SHEET


Suggested New Rule

RULE OF APPELLATE PROCEDURE

(RAP 18.13A)


Accelerated Review of Juvenile Dependency Disposition Orders

and Orders Terminating Parental Rights


Submitted by the Board of Governors of the Washington State Bar Association




Purpose: As long as appeals from juvenile dependency disposition orders and orders terminating parental rights are pending, adoptions cannot be finalized and children are not able to become part of new families. The purpose of this new rule is to further accelerate review of these orders to promote permanency for children awaiting adoption.

This rule is proposed by the Task Force on Dependency and Termination Appeals for the Washington State Supreme Court Commission on Children in Foster Care. Participants on the Task Force include Hon. Anne Ellington of Division I of the Courts of Appeals, commissioners from each of the three divisions of the Court of Appeals and the Supreme Court, an appellate court clerk, a Superior Court clerk, two representatives of the Office of the Attorney General, two appellate defenders, and a representative from the state Office of Public Defense.

The rule's genesis is a report by the National Center for State Courts, Expediting Dependency Appeals: Strategies to Reduce Delay, which encourages states to involve stakeholders in the process of developing strategies that apply to their particular jurisdictions. At the direction of the Task Force, a law student interviewed stakeholders throughout Washington to learn about the problems they encounter attempting to prepare appeals from juvenile dependency disposition orders and orders terminating parental rights, and to solicit their ideas for improving the accelerated review rule. The Task Force heard from trial counsel for parents and the Department of Social and Health Services, court reporters, transcriptionists, and Superior Court clerks from a variety of urban and rural counties.

Based on this input and the collective experience of Task Force members, the Task Force focused its attention on inefficiencies and delays inherent in the transfer of cases from the trial court system to the appellate court. Under the current rules, perfection of an appeal does not begin until the appellate court appoints appellate counsel. Although some other jurisdictions have adopted rules providing for abbreviated briefs and briefing schedules, the Task Force questioned the wisdom and fairness of that approach and chose instead to reduce the inefficiency and delay.

The Task Force's goal was to speed the resolution of these cases without diminishing the opportunity of the parties to be heard or the ability of the appellate court to make sound decisions. In pursuit of this goal, the Task Force employed three principles: (1) simplify perfection of the appeal and start the process more quickly; (2) appoint appellate counsel more quickly; (3) balance the goal of expediting preparation of these appeals with the reality that there are practical, political, and financial considerations that shape the rules of appellate procedure as they currently exist. Cost is a significant consideration. The Office of Public Defense, which pays for appellate counsel and preparation of the record, demonstrated a true commitment to expediting dependency and termination appeals through its willingness to be flexible regarding payment for preparation of the record and early appointment of counsel.

Suggested new Rule of Appellate Procedure (RAP) 18.13A is tailored to appeals from juvenile dependency disposition orders and orders terminating parental rights. In brief, the suggested rule requires trial counsel to order the verbatim report of proceedings and designate the clerk's papers at the time the notice of appeal is filed, rather than waiting for the appointment of appellate counsel. To simplify and speed the designation process, the suggested rule requires all documents in the court file to be transmitted to the appellate court, with copies provided to appellate counsel to save them the time of copying the documents themselves. To offset that cost, the suggested rule provides that only one set of clerk's papers will be transmitted to the appellate court, rather than one for each child as is the current practice.1 The suggested rule provides for the notice of appeal to be served on the appellate court as a safeguard to prevent cases from falling between the cracks. Contemporaneous filing of any order of indigency will allow appellate counsel to be appointed more quickly. The suggested rule codifies the existing accelerated briefing schedules already in use in all three divisions of the Court of Appeals. The suggested rule informs the Superior Court clerks, court reporters, and transcriptionists that these appeals are to be given priority.

1 Individual dependency petitions and petitions to terminate parental rights are filed in the trial court for each child, and each child's case is given a case number. Under current RAP 18.13, the documents in each file must be separately designated and transmitted, even though they are substantially identical. Under suggested new RAP 18.13A, only the documents filed in the lowest case number would be transmitted to the appellate court, but the Office of Public Defense has agreed to pay for copies of the clerk's papers to be provided to appellate counsel so they no longer have to arrange to have the documents copied themselves.


In conjunction with suggested new RAP 18.13A, the Task Force is also proposing the following:

1. Adding new RAP Forms 15B and 15C to help trial counsel fulfill their new obligations regarding statements of arrangement and designation of clerk's papers, along with express cross-references to the new forms in the suggested new rule (see suggested RAP 18.13A (e) and (g));

2. Modifying existing RAP 18.13 to apply strictly to manifest injustice dispositions in juvenile offender matters (but to otherwise make no substantive change to the manner in which those dispositions are reviewed); and

3. Providing a corollary reference in RAP 13.15A (a)(3) (which is part of a rule addressing Supreme Court Review of decisions by the Court of Appeals) to suggested new RAP 18.13A(j), which would expand the number of circumstances under which a party may seek discretionary Supreme Court review.

Please refer to the separate GR 9 cover sheet for more details on each of these three concomitant proposals.


RULES OF APPELLATE PROCEDURE (RAP)


NEW RULE 18.13A. ACCELERATED REVIEW OF JUVENILE DEPENDENCY DISPOSITION ORDERS AND ORDERS TERMINATING PARENTAL RIGHTS



(a) Generally. Juvenile dependency disposition orders and orders terminating parental rights may be reviewed by a commissioner on the merits by accelerated review as provided in this rule. Review from other orders entered in juvenile dependency and termination actions are not subject to this rule. The provisions of this rule supersede all other provisions of the Rules of Appellate Procedure to the contrary, and this rule shall be construed so that appeals from juvenile dependency disposition orders and orders terminating parental rights shall be heard as expeditiously as possible.

(b) Notice of Appeal - Filing with Appellate Court. The notice of appeal must be filed with the trial court in compliance with Title 5 of these rules. Notwithstanding the other provisions of this rule, a timely notice of appeal shall be accepted for filing. A copy of the notice of appeal with proof of service should be filed with the appellate court by the appellant at the time it is filed with the trial court.

(c) Motion for Order of Indigency. Parties seeking review at public expense must file a motion for order of indigency in the trial court. Any order of indigency should be filed contemporaneously with the notice of appeal.

(d) Consolidation. When one or more appellants seek review of more than one dependency dispositional order or order terminating parental rights arising from cases tried together, each appellant may file a single statement of arrangements and a single designation of clerk's papers under the lowest trial court cause number. The appellate court normally will consolidate the appeals for purposes of review.

(e) Statement of Arrangements. A statement of arrangements should be filed contemporaneously with the notice of appeal. The party seeking review should arrange for the transcription of an original and one copy of the verbatim report of proceedings. If the proceeding being reviewed was recorded electronically, transcription of the recordings shall be completed by a court-approved transcriber in accordance with the procedures developed by the Administrative Office of the Courts. An indigent party should provide the court reporter, transcriber, or court administrator a copy of the order of indigency. A non-indigent party should arrange for payment for the transcription of the report.

The party seeking review must file with the trial and appellate courts and serve the statement of arrangements on all parties of record and all named court reporters and file proof of service with the appellate court. The party must indicate the date that the report of proceedings was ordered, the financial arrangements which have been made for payment of transcription costs, the name of each court reporter or other person authorized to prepare the report of proceedings who will be preparing a transcript, the hearing dates, and the trial court judge. If the party seeking review does not intend to provide a report of proceedings, a statement to that effect should be filed in lieu of a statement of arrangements and served on all parties of record.


See Form 15B

(f) Report of Proceedings. The preparation and filing of reports of proceedings in appeals under this rule take precedence over all other appeal records. The format of the verbatim report of proceedings is governed by rule 9.2 (e) and (f). The filing and service of the report of proceedings is governed by rule 9.5, except that any motion for extension of time to file the report of proceedings must be accompanied by an affidavit from the court reporter or other person authorized to prepare the report of proceedings demonstrating exceptional circumstances. Extensions otherwise will be denied and sanctions may be imposed.

(g) Designation and Filing of Clerk's Papers. The party seeking review should file a designation of clerk's papers with the trial and appellate courts contemporaneously with the notice of appeal. In appeals under this rule, the entire trial court file shall be designated as clerk's papers to be transmitted to the appellate court. All of the exhibits filed in the trial court shall also be designated and transmitted to the appellate court. In cases appropriate for consolidation under subsection (d) of this rule, a designation of clerk's papers need only request the preparation of a single trial court file. The clerk shall prepare and transmit the clerk's papers as set forth in rules 9.7 and 9.8, except that a copy of the clerk's papers and the exhibits shall be provided to appellate counsel. The clerk should give priority to the preparation and filing of clerk's papers in appeals under this rule.


See Form 15C


(h) Briefing. Parties shall file briefs in compliance with rules 10.3 and 10.4.

(i) Time for Filing Briefs.

(1) Brief of Appellant. The brief of an appellant should be filed with the appellate court within 30 days after the report of proceedings is filed with the trial court; or, if the record on review does not include a report of proceedings, within 30 days after the party seeking review has received an index of clerk's papers and exhibits. Appellant shall append to the brief a copy of the trial court's findings of fact and conclusions of law.

(2) Brief of Respondent. The brief of a respondent should be filed with the appellate court within 30 days after service of the brief of appellant. When there is more than one appellant, the respondent may file one brief in response to all appellants.

(3) Reply Brief. A reply brief of an appellant should be filed with the appellate court within 15 days after service of the brief of respondent unless the court orders otherwise.

(4) Other Briefs. The appellate court may, on its own motion or on motion of a party, authorize or direct the filing of briefs on the merits other than those listed in this rule.

(5) Briefs in Consolidated Cases. In consolidated cases, a party may (i) join with one or more other parties in a single brief, or (ii) file a separate brief and adopt by reference any part of the brief of another.

(j) Supreme Court Review. A decision by the Court of Appeals on accelerated review that relates only to juvenile dependency dispositional orders or orders terminating parental rights is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rules 13.3(e) and 13.5A.



RULES OF APPELLATE PROCEDURE (RAP)


NEW RULE 18.13A: SUGGESTED FORMS 15B AND 15C


FORM 15B. STATEMENT OF ARRANGEMENTS IN APPEALS FROM DEPENDENCY DISPOSITIONAL ORDERS AND ORDERS TERMINATIING PARENTAL RIGHTS



[Rule 18.13A(e)]
SUPERIOR COURT OF WASHINGTON FOR (_____) COUNTY
[Name of plaintiff], )
Plaintiff ) No. [trial court]
v. )
[Name of defendant], ) STATEMENT OF ARRANGEMENTS
Defendant )
)
__________, attorney for _______, states that on______, 20__, I ordered transcription of the original and one copy of the verbatim report of proceedings form the court reporter(s)/transcriptionist(s) named below and have arranged to pay the cost of transcription and preparation of the record on appeal [at public expense by Order of Indigency]:
Hearing date(s) Judge Court Reporter/Transcriptionist

A copy of this statement is being filed with the Court of Appeals and served on all parties of record and all court reporters and/or court-approved transcribers.
The reports of proceedings in appeals under RAP 18.13A take precedence over the preparation and filing of all other appeal records. Extensions will be granted only in exceptional circumstances. RAP 18.13A(f).
Attorney for [__________]
WSBA No.______________


CERTIFICATE OF SERVICE


I certify that on the ____ day of _______, 20__, I caused a true and correct copy of this Statement of Arrangements to be served on the following in the manner indicated below:


Counsel for ( ) U.S. Mail
Name ( ) Hand Delivery
Address ( )

Counsel for

( )

U.S. Mail

Name ( ) Hand Delivery
Address ( )

Court Reporter

( )

U.S. Mail

Name ( ) Hand Delivery
Address ( )

By:


FORM 15C. DESIGNATION OF CLERK'S PAPERS IN APPEALS FROM DEPENDENCY DISPOSITIONAL ORDERS AND ORDERS TERMINATING PARENTAL RIGHTS


[Rule 18.13A(g)]
SUPERIOR COURT OF WASHINGTON FOR (_____) COUNTY
[Name of plaintiff], )
Plaintiff ) No. [trial court]
v. )
[Name of defendant], ) DESIGNATION OF CLERK'S PAPERS
Defendant )
)
TO: Superior Court Clerk
Pursuant to RAP 18.13A(g) please prepare and transmit to the Court of Appeals, Division ___, the following Clerk's Papers and Exhibits:
All documents/subnumbers filed in [the lowest trial court cause number for which the appellant seeks review].
All exhibits admitted in [the lowest trial court cause number for which the appellant seeks review].
A copy of this document has been filed with the Court of Appeals and served on all parties of record.
The clerk should give priority to the preparation and transmittal of clerk's papers under RAP 18.13A(g).
DATED this __ day of ___. 20__.
Attorney for [__________]
WSBA No.______________


CERTIFICATE OF SERVICE


I certify that on the ____ day of _______, 20__, I caused a true and correct copy of this Designation of Clerk's Papers to be served on the following in the manner indicated below:


Counsel for ( ) U.S. Mail
Name ( ) Hand Delivery
Address ( )

Counsel for

( )

U.S. Mail

Name ( ) Hand Delivery
Address ( )

Counsel for

( )

U.S. Mail

Name ( ) Hand Delivery
Address ( )

By:

GR 9 COVER SHEET

Suggested Amendment

RULE OF APPELLATE PROCEDURE

(RAP 18.13)


Accelerated Review of Juvenile Dependency Disposition Orders and Orders Terminating Parental Rights


Submitted by the Board of Governors of the Washington State Bar Association



Purpose: This amendment removes references to appeals from juvenile dependency disposition orders and orders terminating parental rights, making the rule apply strictly to appeals from manifest injustice dispositions. This proposal is prompted by suggested new RAP 18.13A, which would deal exclusively with review of juvenile dependency disposition orders and orders terminating parental rights. Please refer to the purpose statement for suggested new RAP 18.13A.


RULES OF APPELLATE PROCEDURE (RAP)


RULE 18.13. ACCELERATED REVIEW OF DISPOSITIONS IN JUVENILE OFFENSE, JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS



(a) Generally. Dispositions in a juvenile offense proceeding beyond the standard range for such offenses, juvenile dependency and termination of parental rights, shall be reviewed on the merits by accelerated review as provided in this rule.

(b) Accelerated Review by Motion. The accelerated review of the disposition shall be done by motion. The motion must include (1) the name of the party filing the motion; (2) the offense in a juvenile offense proceeding or the issues in a juvenile dependency or termination of parental rights; (3) the disposition of the trial court; (4) the standard range for the offense, as may be appropriate; (5) a statement of the disposition urged by the moving party; (6) copies of the clerk's papers and a written verbatim report of those portions of the disposition proceeding that are material to the motion; (7) an argument for the relief the party seeks; and (8) a statement of any other issues to be decided in the review proceeding.

(c) Motion Procedure Controls. Unless otherwise specified in this rule, Tthe motion procedure, including a party's response, is governed by rule 17.

(d) Accelerated Review of Other Issues. The decision of issues other than those relating to the juvenile offense disposition, juvenile dependency and termination of parental rights may be accelerated only pursuant to rules 18.8, and 18.12, or 18.13A.

(e) Supreme Court Review. A decision by the Court of Appeals on accelerated review that relates only to a juvenile offense disposition, juvenile dependency and termination of parental rights is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rules 13.3(e) and 13.5A.

(f) Schedule. The accelerated review shall include a schedule for filing the record on review, the motion, response, and reply, and briefs and setting oral argument.

(g) Content of Motion and Response. In addition to the requirements of section (b) of this rule, a party appealing from the disposition decision following a finding of dependency by a juvenile court or a decision terminating all of a person's parental rights with respect to a child should (1) append to the motion a copy of the trial court's finding of facts and conclusions of law and copies of all dependency review orders; (2) identify by specific assignments of error those findings and conclusions challenged on appeal; and (3) set forth the applicable standard of governing review of those issues. Counsel for the respondent should respond to each assignment of error and should provide citation to the record for any evidence supporting the trial court's findings.


GR 9 COVER SHEET


Suggested Amendment

RULE OF APPELLATE PROCEDURE

(RAP 13.5A)


Motions for Discretionary Review of Specified Final Decisions


Submitted by the Board of Governors of the Washington State Bar Association



Purpose: This amendment is prompted by suggested new RAP 18.13A, which addresses Supreme Court Review of decisions by the Court of Appeals on accelerated review relating to juvenile dependency dispositional orders or orders terminating parental rights. This amendment provides a corollary reference in RAP 13.5A(3) to suggested new RAP 18.13A(j), which would expand the number of circumstances under which a party may seek discretionary Supreme Court review. Please refer to the purpose statement for suggested new RAP 18.13A.



RULES OF APPELLATE PROCEDURE (RAP)


RULE 13.5A. MOTIONS FOR DISCRETIONARY REVIEW OF

SPECIFIED FINAL DECISIONS



(a) Scope of Rule. This rule governs motions for discretionary review by the Supreme Court of the following decisions of the Court of Appeals:

(1) Decisions dismissing or deciding personal restraint petitions, as provided in rule 16.14(c);

(2) Decisions dismissing or deciding post-sentence petitions, as provided in rule 16.18(g);

(3) Decisions on accelerated review that relate only to a juvenile offense disposition, juvenile dependency, or termination of parental rights, as provided in rule 18.13(e) or 18.13A(j);

(4) Decisions on accelerated review that relate only to an adult sentence, as provided in rule 18.15(g)

(b) [Unchanged.]

(c) [Unchanged.]

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office