Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Judiciary Committee

SHB 1285

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Brief Summary of Bill

Requires the appointment of counsel for a child in a dependency within 72 hours of granting a petition to terminate the parent and child relationship.
Lowers, from 12 years to 7 years, the age at which a child in a dependency must be notified of the right to request an attorney.

Tasks the Washington State Center for Court Research, in consultation with the Office of Civil Legal Aid, with evaluating the effects of the new mandate to provide attorney representation for children in terminations and reporting back to the Legislature and the Governor.

Background:

The Department of Social and Health Services (DSHS) or any person may file a petition in court to determine if a child should be a dependent of the state due to abuse, neglect, abandonment, or because there is no parent or custodian capable of caring for the child. If the court determines the child is dependent, the court conducts periodic reviews and makes determinations about the child's placement and the parent's progress in correcting parental deficiencies. The court, under certain circumstances, may order the filing of a petition for the termination of parental rights. If a child has been in out-of-home placement for 15 of the most recent 22 months, the court must order the DSHS to file a petition for termination, absent a good-cause exception.

The court must appoint a guardian ad litem (GAL) for a child in a dependency unless the court finds the appointment unnecessary. It is discretionary with the court whether to appoint an attorney to represent a child in a dependency.

The DSHS and the child's GAL must notify a child who is age 12 or older of the child's right to request an attorney and must ask the child whether he or she wants an attorney. The DSHS and the GAL must so notify the child every year and upon the filing of any motion affecting the child's placement, services, or familial relationships.

The DSHS must note in the child's service and safety plan, and the GAL must note in his or her report to the court, the child's position regarding appointment of an attorney. The GAL must provide the court with the GAL's recommendation regarding whether appointment of an attorney is in the child's best interests.

The court must also ask a child who is age 12 or older whether he or she has been informed by the DSHS and the GAL regarding the child's right to request an attorney. The court must make an additional inquiry at the first regularly scheduled hearing after the child's fifteenth birthday.

In the case of In re Dependency of M.S.R., 174 Wn 2d 1, 271 P. 3d 234 (2012), the Washington Supreme Court held that "children of parents subject to dependency and termination proceedings have due process rights that must be protected and, in some cases, must be protected by appointment of counsel, but that the right to appointment of counsel is not universal." The court found this "constitutionally adequate to protect the right of counsel for such children."

Summary of Bill:

Intent Section.

The Legislature recognizes that dependency proceedings determine many critical aspects of a child's future, that children have many legal rights at stake in dependency proceedings, that varying practices across the state have resulted in inconsistent protection of such rights, and that representation by an attorney can be invaluable in ensuring that the child's rights are respected. Note is taken of the recent opinion in In re Dependency of M.S.R. Whether individual children are entitled to an attorney is supposed to be determined by a balancing test, however, inconsistent practices with respect to attorney appointment across the state may result in children being denied their constitutional right to legal representation. The process to assert the right to counsel must be accessible to all children.

Appointment of Counsel for Children in Dependency Proceedings.

The court must appoint an attorney for a child in a dependency within 72 hours of granting a petition to terminate the parent and child relationship. The Washington State Center for Court Research, in consultation with the Office of Civil Legal Aid, is tasked with evaluating the effect of this new mandate. A preliminary report must be submitted to the appropriate committees of the Legislature and the Governor by December 1, 2014, and a final report one year later.

In addition, 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 GAL, a caregiver, or the DSHS. A child's caregiver may refer the child to an attorney for purposes of filing a motion to request appointment of an attorney at public expense. A child or another individual may retain an attorney for the child for such purposes as well.

The age at which a child in a dependency must be notified of the right to request an attorney, and asked his or her wishes with respect to having an attorney, is lowered from 12 years to 7 years.

Such notifications must continue to be made at least annually thereafter. At the first regularly scheduled court hearing after the following events, the court must inquire whether the child received such notice:

the child's seventh birthday;
the date that a dependency petition is filed on a child age 7 or older; or
July 1, 2013 for a child who turned 7 before that date.

The court must make additional inquiries at the first regularly scheduled hearing after the child's ninth birthday. No inquiry is necessary if the child has already been appointed an attorney.

References to "counsel" are changed to "attorney."