BILL REQ. #:  S-0641.1 

Read first time 01/31/13.   Referred to Committee on Human Services & Corrections.

     AN ACT Relating to representation of children in dependency matters; amending RCW 13.34.100 and 13.34.105; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature recognizes that dependency proceedings often determine many critical aspects of a child's future, including where the child lives, whether the child resides with siblings, where the child attends school, and how long the child remains in state care. Children have many legal rights at stake in these proceedings, and representation by an attorney can be invaluable in ensuring that the child's rights are respected. The legislature further recognizes that varying practices throughout the state have resulted in inconsistent protection of the rights of the state's children, especially those in the most vulnerable situations.
     (2) The legislature takes note of the 2012 holding of the Washington supreme court in In re the Dependency of MSR and TSR, where the court held that children have at least as much of a due process right to counsel in dependency proceedings as their parents. The court further noted that children have fundamental liberty interests at stake in dependency proceedings, including a right to freedom from harm, a right to reasonable safety, and a right to maintain family relationships. Whether individual children are entitled to an attorney is determined by a balancing test, yet the current inconsistent practices in attorney appointment across the state may lead to many children being denied their constitutional right to legal representation. The balancing test will always favor appointment of counsel for certain groups of highly vulnerable children, including those whose parents' parental rights have been terminated; those who have had multiple foster care placements; those who may be institutionalized; and those who have had disciplinary problems in school, at a minimum. Children in other situations may also have a right to counsel, and the process to assert this right must be accessible to all children.

Sec. 2   RCW 13.34.100 and 2010 c 180 s 2 are each amended to read as follows:
     (1) The court shall appoint a guardian ad litem for a child who is the subject of an action under this chapter, unless a court for good cause finds the appointment unnecessary. The requirement of a guardian ad litem may be deemed satisfied if the child is represented by an independent ((counsel)) attorney in the proceedings. The court shall attempt to match a child with special needs with a guardian ad litem who has specific training or education related to the child's individual needs.
     (2) If the court does not have available to it a guardian ad litem program with a sufficient number of volunteers, the court may appoint a suitable person to act as guardian ad litem for the child under this chapter. Another party to the proceeding or the party's employee or representative shall not be so appointed.
     (3) Each guardian ad litem program shall maintain a background information record for each guardian ad litem in the program. The background information record shall include, but is not limited to, the following information:
     (a) Level of formal education;
     (b) General training related to the guardian ad litem's duties;
     (c) Specific training related to issues potentially faced by children in the dependency system;
     (d) Specific training or education related to child disability or developmental issues;
     (e) Number of years' experience as a guardian ad litem;
     (f) Number of appointments as a guardian ad litem and the county or counties of appointment;
     (g) The names of any counties in which the person was removed from a guardian ad litem registry pursuant to a grievance action, and the name of the court and the cause number of any case in which the court has removed the person for cause;
     (h) Founded allegations of abuse or neglect as defined in RCW 26.44.020;
     (i) The results of an examination of state and national criminal identification data. The examination shall consist of a background check as allowed through the Washington state criminal records privacy act under RCW 10.97.050, the Washington state patrol criminal identification system under RCW 43.43.832 through 43.43.834, and the federal bureau of investigation. The background check shall be done through the Washington state patrol criminal identification section and must include a national check from the federal bureau of investigation based on the submission of fingerprints; and
     (j) Criminal history, as defined in RCW 9.94A.030, for the period covering ten years prior to the appointment.
     The background information record shall be updated annually. As a condition of appointment, the guardian ad litem's background information record shall be made available to the court. If the appointed guardian ad litem is not a member of a guardian ad litem program a suitable person appointed by the court to act as guardian ad litem shall provide the background information record to the court.
     Upon appointment, the guardian ad litem, or guardian ad litem program, shall provide the parties or their attorneys with a copy of the background information record. The portion of the background information record containing the results of the criminal background check and the criminal history shall not be disclosed to the parties or their attorneys. The background information record shall not include identifying information that may be used to harm a guardian ad litem, such as home addresses and home telephone numbers, and for volunteer guardians ad litem the court may allow the use of maiden names or pseudonyms as necessary for their safety.
     (4) The appointment of the guardian ad litem shall remain in effect until the court discharges the appointment or no longer has jurisdiction, whichever comes first. The guardian ad litem may also be discharged upon entry of an order of guardianship.
     (5) When a court-appointed special advocate or volunteer guardian ad litem is requested on a case, the program must give the court the name of the person it recommends. The program must attempt to match a child with special needs with a guardian ad litem who has specific training or education related to the child's individual needs. The court must immediately appoint the person recommended by the program.
     (6) If a party in a case reasonably believes the court-appointed special advocate or volunteer guardian ad litem is inappropriate or unqualified, the party may request a review of the appointment by the program. The program must complete the review within five judicial days and remove any appointee for good cause. If the party seeking the review is not satisfied with the outcome of the review, the party may file a motion with the court for the removal of the court-appointed special advocate or volunteer guardian ad litem on the grounds the advocate or volunteer is inappropriate or unqualified.
     (7) A guardian ad litem through ((counsel)) an attorney, or as otherwise authorized by the court, shall have the right to present evidence, examine and cross-examine witnesses, and to be present at all hearings. A guardian ad litem shall receive copies of all pleadings and other documents filed or submitted to the court, and notice of all hearings according to court rules. The guardian ad litem shall receive all notice contemplated for a parent or other party in all proceedings under this chapter.
     (((6))) (8)(a) The court must appoint an attorney for the child in the dependency:
     (i) Within seventy-two hours of granting a petition to terminate the parent and child relationship pursuant to RCW 13.34.180;
     (ii) Within seventy-two hours of placing the child in a group-care facility as defined in RCW 74.15.020(1)(f);
     (iii) Within seventy-two hours of placing the child in inpatient treatment as defined in RCW 71.34.020(9);
     (iv) Within fourteen days after the child has been prescribed psychotropic medications;
     (v) Within seventy-two hours after the child is placed in his or her fourth or subsequent placement;
     (vi) Within seventy-two hours after the child has run away from a placement;
     (vii) Within seventy-two hours of the child receiving a suspension or expulsion from school;
     (viii) Within seventy-two hours of the child being charged with a criminal offense. The child's criminal defense attorney may also serve as the dependency attorney, provided that he or she is qualified to do so and is appointed by the dependency court as the child's dependency attorney;
     (ix) Within seventy-two hours of the child being referred for a sexually aggressive youth evaluation under RCW 74.13.075.
     (b) The department must promptly provide ex parte notice to the court of the occurrence of any of the conditions in (a)(ii) through (ix) of this subsection. Upon receiving such notice, the court must, sua sponte, appoint an attorney for the child.
     (9)(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.
     (b) The child's caregiver may refer the child to an attorney for the purposes of filing a motion to request appointment of an attorney at public expense.
     (c) The child or another individual may retain an attorney for the child for the purposes of filing a motion to request appointment of an attorney at public expense.
     (d) Pursuant to this subsection (9), the department or supervising agency and the child's guardian ad litem shall each notify a child of his or her right to request ((counsel)) an attorney and shall ask the child whether he or she wishes to have ((counsel)) an attorney. The department or supervising agency and the child's guardian ad litem shall notify the child and make this inquiry immediately after:
     (i) The date of the child's ((twelfth)) seventh birthday;
     (ii) Assignment of a case involving a child age ((twelve)) seven or older; or
     (iii) July 1, ((2010)) 2013, for a child who turned ((twelve)) seven years old before July 1, ((2010)) 2013.
     (((b))) (e) The department or supervising agency and the child's guardian ad litem shall repeat the notification and inquiry at least annually and upon the filing of any motion or petition affecting the child's placement, services, or familial relationships.
     (((c))) (f) The notification and inquiry is not required if the child has already been appointed ((counsel)) an attorney.
     (((d))) (g) The department or supervising agency shall note in the child's individual service and safety plan, and the guardian ad litem shall note in his or her report to the court, that the child was notified of the right to request ((counsel)) an attorney and indicate the child's position regarding appointment of ((counsel)) an attorney.
     (((e))) (h) At the first regularly scheduled hearing after:
     (i) The date of the child's ((twelfth)) seventh birthday;
     (ii) The date that a dependency petition is filed pursuant to this chapter on a child age ((twelve)) seven or older; or
     (iii) July 1, ((2010)) 2013, for a child who turned ((twelve)) seven years old before July 1, ((2010)) 2013;
the court shall inquire whether the child has received notice of his or her right to request ((legal counsel)) an attorney from the department or supervising agency and the child's guardian ad litem. The court shall make an additional inquiry at the first regularly scheduled hearing after the child's ((fifteenth)) ninth birthday. No inquiry is necessary if the child has already been appointed ((counsel)) an attorney.
     (((f) If the child requests legal counsel and is age twelve or older, or if the guardian ad litem or the court determines that the child needs to be independently represented by counsel, the court may appoint an attorney to represent the child's position.
     (7))) (10) For the purposes of child abuse prevention and treatment act (42 U.S.C. Secs. 5101 et seq.) grants to this state under P.L. 93-247, or any related state or federal legislation, a person appointed pursuant to this section shall be deemed a guardian ad litem ((to represent the best interests of the minor in proceedings before the court)).
     (((8) When a court-appointed special advocate or volunteer guardian ad litem is requested on a case, the program shall give the court the name of the person it recommends. The program shall attempt to match a child with special needs with a guardian ad litem who has specific training or education related to the child's individual needs. The court shall immediately appoint the person recommended by the program.
     (9) If a party in a case reasonably believes the court-appointed special advocate or volunteer guardian ad litem is inappropriate or unqualified, the party may request a review of the appointment by the program. The program must complete the review within five judicial days and remove any appointee for good cause. If the party seeking the review is not satisfied with the outcome of the review, the party may file a motion with the court for the removal of the court-appointed special advocate or volunteer guardian ad litem on the grounds the advocate or volunteer is inappropriate or unqualified.))

Sec. 3   RCW 13.34.105 and 2011 c 309 s 26 are each amended to read as follows:
     (1) Unless otherwise directed by the court, the duties of the guardian ad litem for a child subject to a proceeding under this chapter, including an attorney specifically appointed by the court to serve as a guardian ad litem, include but are not limited to the following:
     (a) To investigate, collect relevant information about the child's situation, and report to the court factual information regarding the best interests of the child;
     (b) To meet with, interview, or observe the child, depending on the child's age and developmental status, and report to the court any views or positions expressed by the child on issues pending before the court;
     (c) To monitor all court orders for compliance and to bring to the court's attention any change in circumstances that may require a modification of the court's order;
     (d) To report to the court information on the legal status of a child's membership in any Indian tribe or band;
     (e) Court-appointed special advocates and guardians ad litem may make recommendations based upon an independent investigation regarding the best interests of the child, which the court may consider and weigh in conjunction with the recommendations of all of the parties;
     (f) To represent and be an advocate for the best interests of the child;
     (g) To inform the child, if the child is ((twelve)) seven years old or older, of his or her right to request ((counsel)) an attorney and to ask the child whether he or she wishes to have ((counsel)) an attorney, pursuant to RCW 13.34.100(6). The guardian ad litem shall report to the court that the child was notified of this right and indicate the child's position regarding appointment of ((counsel)) an attorney. The guardian ad litem shall report to the court his or her independent recommendation as to whether appointment of ((counsel)) an attorney is in the best interest of the child; and
     (h) In the case of an Indian child as defined in RCW 13.38.040, know, understand, and advocate the best interests of the Indian child.
     (2) A guardian ad litem shall be deemed an officer of the court for the purpose of immunity from civil liability.
     (3) Except for information or records specified in RCW 13.50.100(7), the guardian ad litem shall have access to all information available to the state or agency on the case. Upon presentation of the order of appointment by the guardian ad litem, any agency, hospital, school organization, division or department of the state, doctor, nurse, or other health care provider, psychologist, psychiatrist, police department, or mental health clinic shall permit the guardian ad litem to inspect and copy any records relating to the child or children involved in the case, without the consent of the parent or guardian of the child, or of the child if the child is under the age of thirteen years, unless such access is otherwise specifically prohibited by law.
     (4) A guardian ad litem may release confidential information, records, and reports to the office of the family and children's ombudsman for the purposes of carrying out its duties under chapter 43.06A RCW.
     (5) The guardian ad litem shall release case information in accordance with the provisions of RCW 13.50.100.