In re Dependency of E.M.

484 P.3d 461, 197 Wash. 2d 492

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE APRIL 15, 2021 SUPREME COURT, STATE OF WASHINGTON APRIL 15, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Dependency of E.M., ) No. 98596-1 a minor child, ) En Banc ) ) Filed: April 15, 2021 )

OWENS, J. ― This case asks whether a private attorney can represent a child

in a dependency proceeding without first obtaining the court’s approval. In 2018,

E.M. was a three-year-old boy who had lived with his grandmother since birth as a

dependent child of the State. When his grandmother sought to return to work, E.M.

suddenly found himself in a custodial tug-of-war between his biological parents, his

grandmother, and the State. After the dust had settled, the King County Superior

Court placed E.M. in foster care—separating E.M. from his family for the first time in

his young life.

E.M.’s grandmother quickly retained an attorney for E.M. for the purpose of

asking the King County Superior Court to reconsider its decision. The attorney,

however, was unable to meet with E.M. because the Department of Children, Youth,

and Families (Department) would not provide contact details or arrange a meeting In re Dependency of E.M. No. 98596-1

with E.M. Ultimately, the court declined reconsidering E.M.’s placement in foster

care because it ruled that the attorney was not appointed by the court to represent

E.M. and because the representation raised numerous ethical issues. E.M.’s mother

appealed this ruling, and the Court of Appeals affirmed.

Washington litigants involved in a broad range of matters enjoy the paramount

right to retain a private attorney of their choice to best represent their interests—

without the court’s interference. Dependency proceedings carry drastic consequences

that may forever dwell on a child. Children at such an important crossroads in life

must also be afforded this right when they are sufficiently mature to make such a

decision. However, when a child is not sufficiently mature to make such a

consequential decision, the court inherently has plenary authority in deciding whether

to allow a representation to proceed.

Nonetheless, circumstances may arise where an attorney must undertake a

representation to protect a person’s interest in limited circumstances before the

attorney has had a chance to meet with the person or obtain the court’s approval.

Accordingly, before striking a representation, the court must first consider whether the

circumstances may authorize such a limited representation. As the superior court

failed to make this consideration before striking the notice of appearance, we reverse.

2 In re Dependency of E.M. No. 98596-1

I. STATEMENT OF FACTS

E.M. is a young boy who was born in 2015. He was declared to be a dependent

child of the State shortly after his birth and lived with his grandmother during the

following years.1 In 2017, E.M.’s grandmother (Grandmother) sought to return to

work and supported a change in placement to his mother (Mother), provided there was

a visitation monitor present to monitor their contact at all times. Although

Grandmother sought a return to work, ensuring E.M. had a safe place to live took

precedence.

Mother petitioned for E.M. to live with her and a friend (a visitation monitor),

while E.M.’s father (Father) filed a competing motion, seeking to place E.M. in foster

care. The commissioner granted Mother’s request. E.M. lived with Mother and the

visitation monitor for a very brief time. Father moved to revise the commissioner’s

decision in King County Superior Court. Father asserted that Mother was alone with

E.M. when the visitation monitor was at work in violation of the court’s order. Father

further argued that E.M. should not move back with Grandmother because

Grandmother berated Father in front of E.M, thereby reducing Father’s chances of

1 In 2011, E.M.’s mother left E.M.’s brother in a car on the side of the road for an hour while she went to get gas with E.M.’s sister. When the mother returned, E.M.’s brother was gone. The disappearance remains unsolved. Additionally, E.M.’s biological father has since divorced E.M.’s mother and has allegedly experienced drug addiction, homelessness, and incarceration. Due to these circumstances, E.M. was declared to be a dependent child. 3 In re Dependency of E.M. No. 98596-1

reunification. Instead, Father asked the court to place E.M. in foster care. The

superior court agreed and ordered E.M. to be placed in foster care.

In response to the order, Grandmother quickly retained an attorney, Ms. Aimée

Sutton,2 to represent E.M. five days after E.M. was moved to foster care. The

attorney was unable to meet with E.M. because the Department would not provide

contact details to the attorney or allow the attorney to meet with E.M. The attorney

promptly filed a notice of appearance days before filing a motion to reconsider the

court’s decision to place E.M. in foster care. On the same day the attorney filed the

notice of appearance, the court appointed a guardian ad litem for E.M., as E.M. had

been without a guardian ad litem for the previous several months.

The attorney filed a timely motion for reconsideration a few days later, noting

that the turbulence of the placement changes had begun to negatively affect E.M. The

attorney noted that E.M. had been moved between placements four times within a

month, visited Mother less often, and had a number of meetings with Mother

unexpectedly cancelled. The attorney argued that E.M.’s transition to foster care

could result in significant psychological consequences as E.M. had always previously

lived with a family member. The attorney advocated for E.M. to return to

Grandmother, where he lived before the placement changes began.

2 Ms. Sutton has since been appointed to serve as a King County Superior Court judge. No disrespect is intended by the omission of honorific terms. 4 In re Dependency of E.M. No. 98596-1

Father and the Department opposed the attorney’s representation of E.M. in

their responses to the motion for reconsideration. At the reconsideration hearing, the

court preliminarily struck the attorney’s notice of appearance and refused to hear the

substance of the motion. The superior court ruled that the attorney could not represent

E.M. because the attorney was not appointed pursuant to RCW 13.34.100 and because

the representation presented numerous ethical issues. Mother appealed the ruling, and

Division I of the Court of Appeals affirmed the trial court. In re Dependency of E.M.,

12 Wn. App. 2d 510, 458 P.3d 810 (2020). The attorney has placed fees for this

representation in trust, and the attorney has not drawn from these funds. E.M. has

lived in foster care ever since.

II. ISSUES PRESENTED

1. Does RCW 13.34.100 require that private attorneys for children in

dependency proceedings be appointed by the court prior to beginning representation?

2. Did the trial court err when it struck the attorney’s notice of appearance

based on the attorney’s ability to comply with the Rules of Professional Conduct?

5 In re Dependency of E.M. No. 98596-1

III. ANALYSIS

A. RCW 13.34.100 Does Not Require Private Attorneys for Children in Dependency Proceedings To Be Appointed by the Court

We are first3 tasked with determining whether RCW 13.34.100(7) requires

privately retained attorneys for children in dependency proceedings to first be appointed

by the court prior to beginning representation. This is a question of statutory

interpretation, which we review de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761-62,

317 P.3d 1003 (2014).

In resolving an issue of statutory construction, we first look to the plain meaning

of the statute. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43

P.3d 4 (2002). Meaning must be ascertained from the plain language of the statute,

unless the statute is ambiguous in that the language “remains susceptible to more than

one reasonable meaning.” Id. at 12 (citing Cockle v. Dep’t of Labor & Indus., 142

Wn.2d 801, 808, 16 P.3d 583 (2001)). Thus, if the plain meaning of the statute is

unambiguous, we end our inquiry. Only when the statute is ambiguous do we resort to

the aids of statutory construction and legislative history. Id.

3 As a preliminary matter, Mother has standing to raise this issue as Mother’s fundamental right to the “‘custody, care and nurture of the child’” is affected when the court prohibits E.M. from obtaining private representation and results in the child’s placement in foster care. See In re Dependency of M.S.R., 174 Wn.2d 1, 15, 271 P.3d 234 (2012) (internal quotation marks omitted) (quoting In re Welfare of Luscier, 84 Wn.2d 135, 136–37, 524 P.2d 906 (1974), overruled on other grounds by In re Dependency of M.H.P., 184 Wn.2d 741, 759, 364 P.3d 94 (2015)). The issue is also not moot because E.M. can obtain different private counsel after this appeal, in spite of the fact that the attorney, as a superior court judge, can no longer represent E.M. 6 In re Dependency of E.M. No. 98596-1

The Department primarily asserts that RCW 13.34.100 requires that all attorneys

representing children in dependency proceedings first be appointed by the court. The

Department asserts that the legislature envisioned a “gatekeeping” role for courts in

permitting representation of children in dependency proceedings.

For support of its position, the Department compares subsection (7)(a) of RCW

13.34.100 with subsection (7)(b):

(7)(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)(i) If the court has not already appointed an attorney for a child, or the child is not represented by a privately retained attorney: (A) The child’s caregiver, or any individual, may refer the child to an attorney for the purposes of filing a motion to request appointment of an attorney at public expense; or (B) The child or any individual may retain an attorney for the child for the purposes of filing a motion to request appointment of an attorney at public expense.

RCW 13.34.100 (emphasis added).

The Department contrasts the phrase “appointment of an attorney at public

expense,” of subsection (7)(b)(i)(A)-(B) with the phrase “appoint an attorney” from

subsection (7)(a). From this molecular distinction, the Department argues that the

legislature intended that the court play a gatekeeping role to approve or deny the

representation of all attorneys seeking to represent children.

The Department’s interpretation is incorrect. Nowhere does RCW 13.34.100

require privately retained attorneys to seek appointment by the court. Subsection (7)(a)

7 In re Dependency of E.M. No. 98596-1

does not expressly impose any obligation on an attorney to be appointed by the court

but, rather, notes that the court “may” appoint counsel at its discretion. Additionally,

subsection (7)(b)(i) draws a clear distinction between “appointed” counsel and “privately

retained” counsel, which evidences that “privately retained counsel” is a mutually

exclusive and distinct group for which there is no appointment requirement in the

statute. The statute is not ambiguous as to whether private counsel must be appointed—

there is no such requirement. Accordingly, we decline to apply canons of construction

or look to the legislative intent of the statute.

In conclusion, RCW 13.34.100 does not impose an obligation on privately

retained attorneys to first seek appointment by the court. As there is no statutory

appointment requirement, several ethical and practical questions arise when third parties

retain attorneys on behalf of children during dependency proceedings. We address these

issues in turn.

B. Whether an Attorney Has Sufficient Authority To Represent a Child Depends on Whether an Attorney-Client Relationship Has Formed

Although an attorney need not first seek court appointment, an attorney is

nonetheless required to demonstrate authority for the representation when prompted.

RCW 2.44.030. This raises the question as to whether an attorney has authority to

properly represent a client with whom she has never even met, particularly when that

client is a three-year old child who likely will not understand the nature of the

proceedings or the role of an attorney. While the trial court relied in part on the Rules of

8 In re Dependency of E.M. No. 98596-1

Professional Conduct (RPCs) to strike the representation, the threshold issue is whether

the attorney had the requisite authority to undertake the representation.

To show that an attorney has the requisite authority to act on behalf of a client,

the attorney must establish that the party represented is actually a client. See RCW

2.44.010 (statute confers power to bind a “client”). Accordingly, an attorney must

demonstrate that an attorney-client relationship has been formed or that the

representation is otherwise authorized by law.

And while these are the minimum requirements to exist, authority to bind a child

client does not exist in a dependency proceeding where the attorney is not independent,4

where the third party has been accused of neglecting or abusing the child, or where other

conflicts with the RPCs would substantially limit the representation. See generally In re

Marriage of Wixom, 182 Wn. App. 881, 904, 332 P.3d 1063 (2014) (the court has the

inherent authority to safeguard the ethical practice of law); NAT’L ASS’N OF COUNSEL

FOR CHILDREN, AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR

LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES std. G-1

(1996). Additionally, those with no legitimate interest in the welfare of the child are

wholly without authority to obtain a lawyer on a child’s behalf, absent court approval.

4 An independent representation requires that the attorney does not share privileged information with the third party without the express and voluntary consent from the child and that the third party is unable to direct the representation. These requirements must be communicated by the attorney to the third party in writing. See NAT’L ASS’N OF COUNSEL FOR CHILDREN, AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES std. G-1 (1996). 9 In re Dependency of E.M. No. 98596-1

See STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE

AND NEGLECT CASES, supra, std. H-5 (1996). All of these factors must be considered

when determining whether an attorney has authority to undertake a representation on

behalf of a child in a dependency proceeding.

Addressing these factors, whether an attorney-client relationship exists depends

on whether “the attorney’s advice or assistance is sought and received on legal matters,”

and on “‘the client’s subjective belief that it exists.’” Bohn v. Cody, 119 Wn.2d 357,

363, 832 P.2d 71 (1992) (citing 1 RONALD E. MALLEN & JEFFREY SMITH, LEGAL

MALPRACTICE § 11.2 n.18, at 635 (1989); 7 AM. JUR. 2D Attorneys at Law § 118 (1980),

and quoting In re McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983)). Thus, a

dependent child is capable of forming an attorney-client relationship by seeking legal

advice and reasonably believing that such a relationship exists.

Whether a child is sufficiently mature to form an attorney-client relationship and,

further, to provide informed consent in the event of any conflicts of interest largely

remains a question of fact dependent on whether the child is sufficiently mature to

understand the nature of the dependency proceedings, the attorney-client relationship,

and the possibility of conflicts of interest. When children lack such capacity, the court is

the sole authority that may permit such a representation.5 Here, there was no contact

5 Guardians ad litem, although vested with many duties to ensure the best interest of a child are served, are not vested with the power to approve or disapprove of a representation. See RCW 13.34.105. 10 In re Dependency of E.M. No. 98596-1

whatsoever between the attorney and E.M., so E.M. could not authorize the

representation even if he were capable, and additionally, the attorney did not seek

approval of the court prior to beginning the representation. Nonetheless, while an

attorney-client relationship is typically the vessel that provides the attorney authority to

undertake representation, implied authority may also arise in particular circumstances

under RPC 1.14.

C. Before Striking a Representation Due to a Lack of Authority, the Court Must Consider Whether the Representation May Be Impliedly Authorized under RPC 1.14

While there cannot logically be an attorney-client relationship when no contact

between the putative client and the attorney has been made, an attorney is nonetheless

able to take legal action on behalf of such persons under limited circumstances on an

emergency basis pursuant to RPC 1.14:

(1) the person’s “health, safety or a financial interest” must be “at risk,”

(2) the person must be “unable to establish a client-lawyer relationship. . . when

the person or another acting in good faith on that person’s behalf has

consulted with the lawyer,”

(3) the attorney must “reasonably believe[] that the person has no other lawyer,

agent or other representative available,” and

11 In re Dependency of E.M. No. 98596-1

(4) the attorney must “take legal action on behalf of the person only to the extent

reasonably necessary to maintain the status quo or otherwise avoid imminent

and irreparable harm.”

RPC 1.14 cmt. 9.

RPC 1.14 permits implied authorization for representation under a narrow set of

circumstances, which may have arguably existed in this case. Here, the attorney knew

that no guardian ad litem6 or other attorney represented E.M. until she filed the notice of

appearance, after which there remained little time to file a motion for reconsideration.

The attorney was acting immediately in response to the superior court’s revised order

that placed young E.M. in foster care and separated him from his family for the very first

time in his life. Furthermore, as the attorney argued, placing E.M. in foster care could

result in unnecessary psychological harm to the child when he arguably could have

returned to live with Grandmother to preserve the status quo.

Had the superior court considered these factors, it likely would have found that

the attorney had implied authorization to undertake the representation.7 It did not,

however, and as a result, the court refused to hear the merits of the argument, thereby

6 When a private representation exists, the court must ensure that the child has a guardian ad litem. See RCW 13.34.100(1). Guardians ad litem help ensure the representation is carried out independently and that the interests of the child are properly represented. 7 We find that Ms. Sutton likely had sufficient authorization to undertake the representation and her actions did not conflict with the RPCs. Accordingly, she may withdraw fees from the funds held in trust. 12 In re Dependency of E.M. No. 98596-1

possibly depriving E.M. and his biological family of years of contact. We hold today

that when the court strikes an appearance due to a lack of authority, the court must

consider whether the representation may otherwise be impliedly authorized under the

RPCs.

A child has a significant interest in the outcome of a dependency proceeding.

Where an individual with a legitimate interest in the child’s welfare seeks to retain an

attorney to represent the child’s interest in such an important proceeding, the court must

consider all sources of authority and the respective negating factors before striking the

representation. Because the Attorney arguably had authority to represent E.M. on a

limited basis pursuant to RPC 1.14 comment 9, we hold that the court erred by not

considering all necessary factors before striking the representation.

IV. CONCLUSION Privately retained attorneys are not required to seek appointment by the court in

dependency proceedings under RCW 13.34.100 when the child has capacity to consent

to the relationship. While E.M. did not expressly consent to the representation, the

superior court nonetheless erred when it struck the notice of appearance without

considering whether the representation was impliedly authorized pursuant to RPC 1.14

comment 9. Here, a very young child was denied a hearing on the merits to reconsider

his placement with a foster family, possibly resulting in years of lost time. The superior

court should have considered all relevant RPCs and sources of authority before striking

13 In re Dependency of E.M. No. 98596-1

the representation. E.M. may retain private counsel in accordance with today’s opinion.

We reverse.

WE CONCUR:

14 In re Dependency of E.M., No. 98596-1 (Yu, J., concurring)

No. 98596-1

YU, J. (concurring)— I agree with the majority that RCW 13.34.100 does

not require privately retained attorneys to be appointed by the court in dependency

proceedings. Such a restriction is not supported by the express language of the

statute nor is it reasonably implied in any provisions of the statute.

I also agree with the majority’s conclusion that the trial court erred when it

struck the attorney’s notice of appearance without considering the implied

emergency authorization under RPC 1.14. However, I write separately to reassert

my belief that children are categorically entitled to legal representation at public

expense in every dependency proceeding under art. I, § 3 of our state constitution.1

The discretionary case-by-case approach to the appointment of counsel for children

in these cases does not protect the right for a child to state their position and to

have that position shared with the court. The risk for these children is that they

1 See also Br. of Amici Curiae Wash. Def. Ass’n, Am. Civil Liberties Union of Wash., Univ. of Wash. Sch. of Law Children & Youth Advocacy Clinic, & Wash. Criminal Def. Lawyers in Supp. of Pet’r (Br. of Amici Curiae Wash. Def. Ass’n et al.) (arguing the same under a liberty interest); see also STATEWIDE CHILDREN’S REPRESENTATION WORKGROUP, MEANINGFUL LEGAL REPRESENTATION FOR CHILDREN AND YOUTH IN WASHINGTON’S CHILD WELFARE SYSTEM, STANDARDS OF PRACTICE, VOLUNTARY TRAINING, AND CASELOAD LIMITS IN RESPONSE TO HB 2735 (2010) (Children’s Representation Workgroup).

1 In re Dependency of E.M., No. 98596-1 (Yu, J., concurring)

will be erroneously deprived of their rights in dependency proceedings. See In re

Dependency of E.H., 191 Wn.2d 872, 902, 427 P.3d 587 (2018) (Yu, J., dissenting

in part). As I stated in E.H.,

[T]he unguided discretion that trial courts currently have in appointing counsel allows for inconsistent practices that leave many children with no voice and no one to advocate for their rights. This arrangement does not satisfy the heightened due process protections provided in this context by article I, section 3. Id. at 903. While the majority acknowledges that “[a] child has a significant interest in

the outcome of a dependency proceeding,” these interests are not currently

protected by our system. Majority at 13. In most counties, each child in

dependency proceedings is subject to the individual policies and preferences of the

particular court hearing the matter, which results in disparate practices across the

state. Leaving children, like three-year old E.M., with no voice or advocate in

proceedings deprives them of the opportunity to be heard and to have their interests

protected. As noted by amici curiae, research in our state has demonstrated that

children without counsel are frequently not even mentioned in these proceedings. 2

Finally, the majority in dicta, seems to suggest that a child’s inability to

authorize legal representation is why the court must retain the authority to appoint

2 Br. of Amici Curiae Wash. Def. Ass’n et al. at 5-6 (citing Alicia LeVezu, Alone and Ignored: Children Without Advocacy in Child Abuse and Neglect Courts, 14 STAN. J.C.R. & C.L. 125, 143 (2018)).

2 In re Dependency of E.M., No. 98596-1 (Yu, J., concurring)

counsel. I disagree and would point to this fact as one that actually supports the

view that appointment of counsel for children should be automatic in every case.

The right to counsel does not rest on a child’s capacity to consent or to

communicate with counsel or on a judge’s personal belief that the child’s rights are

sufficiently protected. The right to counsel is rooted in a constitutional right to due

process and some would argue a liberty interest. And contrary to the majority’s

assertions, the Rules of Professional Conduct do not impede or prohibit an

attorney’s ability to represent a child in such proceedings. There are national

standards and guidelines for attorneys representing a child who is preverbal or

otherwise unable to communicate. See AM. BAR ASS’N, ABA MODEL ACT

GOVERNING THE REPRESENTATION OF CHILDREN IN ABUSE, NEGLECT, AND

DEPENDENCY PROCEEDINGS § 7(d) cmt. (Aug. 2011), https://www.americanbar.org/

content/dam/aba/administrative/child_law/aba_model_act_2011.pdf

[https://perma.cc/MLC6-PF8Z]. 3 These standards place the attorney in the role of

advocating the child’s legal interest. Unlike the subjective best interest standard of

a guardian ad litem, “it is a role that looks to the purpose of the underlying laws

3 Other resources on representing infants or preverbal children include the American Bar Association Center on Children and the Law, the National Association of Counsel for Children, the Juvenile Law Center, and Zero to Three. Specifically, see Tori Porell, Legal Representation for the Youngest Clients: A Holistic Approach, AM. BAR ASS’N (Mar. 31, 2020), https://www.americanbar.org/groups/litigation/committees/childrens- rights/articles/2020/legal-representation-for-the-youngest-clients-a-holistic-approach/ [https://perma.cc/Y5UW- 3WRF]; CANDICE L. MAZE, CHILDREN IN DEPENDENCY PROCEEDINGS: THE HALLMARKS OF EFFECTIVE, ETHICAL REPRESENTATION (Oct. 2010); Lisa Kelly & Alicia LeVezu, Until the Client Speaks: Reviving the Legal-Interest Model for Preverbal Children, 50 FAM. L.Q. 383 (2016); Eva J. Klain & Jenifer Goldman Fraser, Representing Very Young Children in Child Welfare Proceedings, 41 THE GUARDIAN 9 (2019).

3 In re Dependency of E.M., No. 98596-1 (Yu, J., concurring)

governing whatever the stage of the proceedings and seeks to secure the child’s

rights within those proceedings.” Commentary, Children’s Representation

Workgroup at 6. For example, these rights might include advocacy to support

healthy physical and emotional healing after trauma or to support healthy

attachments to family or siblings despite being placed out of home.

I am not persuaded that there are other sufficient safeguards in dependency

proceedings to protect a child’s legal rights. In an adversarial proceeding, only an

attorney can effectively serve as an advocate for the child. Here, a vulnerable child

required the assistance of an attorney but was denied such representation. E.M.,

like all children in dependency cases, has an interest in maintaining a continuous

relationship with his family but, instead, was placed in foster care. E.M. also has

the right to be heard on his own behalf. RCW 13.34.090(1).

The court deprived E.M. of this right to be heard when it struck the notice of

appearance and refused to hear the motion to reconsider. Report of Proceedings at

21. Considering children’s interests at stake in dependency cases and the high risk

of deprivation of these interests under the current system, I firmly believe that

every child in a dependency case should be entitled to appointed counsel. Thus, I

respectfully concur only in the resolution of the narrow question posed in this case.

4 In re Dependency of E.M., No. 98596-1 (Yu, J., concurring)

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