In Re The Dependency Of D.a.s., 2/22/02, Dshs v. Leona Lee

• Court: Court of Appeals of Washington
• Decided: April 17, 2017
• Docket: 75065-8
• Status: Unpublished

Opinion

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I/I C.7 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON -r • -1"

In the Matter of the Dependency of ) rrl 1/0.140 > ) No. 75065-8-1 D.A.S., d/o/b 2/22/2002, ) ••

C74••••---: ) (Consolidated with Nos. A Minor Child. ) 75066-6-1, 75067-4-1, 75068-2-1, ) and 75069-1-1) STATE OF WASHINGTON,THE ) DEPARTMENT OF SOCIAL AND ) DIVISION ONE HEALTH SERVICES, ) ) Respondent, ) UNPUBLISHED OPINION ) V. ) ) LEONA LEE, ) ) Appellant. ) FILED: April 17, 2017 ) LEACH, J. — Leona Lee appeals an order terminating her parental rights to

five children. She argues that the guardian ad litem (GAL) improperly appeared

as both a witness and an advocate at trial. Because no statutory provision,

ethical rule, or rule prescribing GAL standards prohibited the GAL from both

advocating on behalf of the children's best interests and testifying as a witness at

the termination trial, her conduct did not violate Lee's due process rights. We

affirm. No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/2

FACTS

Lee raises only a discrete legal issue on appeal about the GAL's role at

the termination trial, so we need not provide the extensive facts of this case. She

has eight children. Five are the subject of this appeal. The Department of Social

and Health Services (Department) removed the children from her care in

November 2012. The court appointed Joan Freeman, a Washington attorney, as

the GAL in January 2013. Freeman served as the GAL throughout the

dependency and termination proceedings.

A lengthy termination trial took place over the course of several weeks in

February and March 2016. The court appointed attorneys to represent the two

oldest of the five children at the termination trial. Both asked that Freeman

continue to represent them as their GAL. The court considered the testimony of

about 20 witnesses, including Lee, multiple social workers, visitation supervisors,

a clinical psychologist, and therapeutic providers for the children. The GAL

participated in all facets of the case: she filed motions, cross-examined

witnesses, called witnesses, including herself, after the Department presented its

case, and made a closing argument.1

1 A colleague of the GAL from the dependency CASA (court-appointed special advocate) program conducted the direct examination of the GAL. -2- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/ 3

At the conclusion of the trial, the court found that the Department had

proved the elements set forth in RCW 13.34.180(1) and concluded that

termination of Lee's parental rights was in the best interests of the children.2 Lee

appeals.

ANALYSIS

Lee seeks reversal of the termination order. She claims that the GAL's

"dual role" in the termination proceeding violated her right to due process.

To decide whether a procedure violates due process, a court balances

three factors: (1) the parents' interests, (2) the risk of error created by the

procedures used, and (3) the countervailing governmental interest supporting

use of the challenged procedure.3 Applying these principles, the due process

protections afforded parents in a termination hearing include notice, open

testimony, time to prepare and respond to charges, and a meaningful hearing

before a competent tribunal in an orderly proceeding.4

In a proceeding to terminate parental rights, the court "shall appoint a

guardian ad litem" for the child who is the subject of the proceeding, unless good

2 The court terminatedthe parental rights of each child's father before trial. 3 In re Welfare of Key, 119 Wn.2d 600, 610-11, 836 P.2d 200 (1992); Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Santoskv v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). 4 In re Dependency of H.W., 70 Wn. App. 552, 555 n.1, 854 P.2d 1100 (1993); In re Moseley, 34 Wn. App. 179, 184, 660 P.2d 315(1983). -3- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/ 4

cause makes this appointment unnecessary.5 As an initial matter, Lee asserts

that the GAL in this case "appeared as the attorney for all five children." But the

record clearly shows that Freeman participated in the case as the children's GAL,

not as legal counse1.6

RCW 13.34.105 outlines the responsibilities of a GAL in a dependency

case. Those duties include, but are not limited to, the duty to (1) investigate,

collect relevant information about the child's best interests, and report this

information to the court; (2) meet with, interview, or observe the child, and report

to the court any views or positions expressed by the child on issues pending

before the court; (3) make recommendations based upon an independent

investigation of the child's best interests; and (4) represent and be an advocate

for the child's best interests.7 The GAL is also required to participate in the

proceeding.5 This participation may include, among other things, filing

documents, requesting hearings, responding to discovery, presenting evidence,

5 RCW 13.34.100(1). 6 This statement is misleading notwithstanding Lee's assertion in her reply brief that she simply meant that the GAL is a licensed attorney who had filed a notice of appearance in the case. 7 RCW 13.34.105(1)(a)-(h); GALR 3. 8 GALR 4(e). -4- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/ 5

and examining witnesses.9 The GAL has these duties whether or not the GAL is

an attorney.10

Lee argues that the GAL acted outside her statutory authority by testifying

at a termination trial in which she also acted as an advocate.

Neither the statute describing the GAL's duties, RCW 13.34.105, nor the

rules adopted by the Supreme Court governing GAL representation explicitly

address GAL testimony. Nothing in Title 13 RCW prohibits the GAL from

presenting evidence, including the GAL's own testimony. The statutory list of

GAL responsibilities is expressly nonexclusive. GALs, in fact, routinely testify

about their recommendations and the basis for those recommendations in

termination proceedings." In a case involving a GAL appointed under Title 26

RCW, this court held that GAL testimony is admissible even though a GAL is not

an expert witness as defined by ER 702. In Fernando v. Nieswandt,12 we

explained,

The statutes which authorize the appointment of the guardian ad litem authorize the family courts to hear the opinions of

9 GALR (4)(h). 19 RCW 13.34.105(1). 11 See, e.g., In re Parenting Rights to K.M.M., 186 Wn.2d 466, 474, 487, 379 P.3d 75 (2016); In re Welfare of L.N.B.-L., 157 Wn. App. 215, 256, 237 P.3d 944 (2010); In re Welfare of T.B., 150 Wn. App. 599, 605-06, 615-16, 209 P.3d 497(2009). 12 87 Wn. App. 103, 107, 940 P.2d 1380, review denied, 133 Wn.2d 1014 (1997). -5- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/6

a witness who would not be a traditional expert under ER 702. A guardian ad litem is not appointed as an 'expert.' Rather, she is appointed to investigate the child and family situation for the court and make recommendations. In effect, she acts as a neutral advisor to the court and, in this sense, is an expert in the status and dynamics of that family who can offer a common sense impression to the court. But the court is also free to ignore the guardian ad litem's recommendations if they are not supported by other evidence or it finds other testimony more convincing.

Following this rationale, we held that GAL opinion testimony is admissible in

guardianship cases.13

Lee contends that because the GAL in this case is a licensed Washington

attorney, RPC 3.7 controlled her advocacy. RPC 3.7, and its historical

antecedent, the advocate-witness rule, prohibit a lawyer who is representing a

client from acting as both an advocate and a witness in the same case.14 RPC

3.7 provides,

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1)the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; (3) disqualification of the lawyer would work substantial hardship on the client; or (4) the lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

13 In re Guardianship of Stamm, 121 Wn. App. 830, 837, 91 P.3d 126 (2004). 14 State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014); United States v. Prantil, 764 F.2d 548, 552-53(9th Cir. 1985). -6- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/7

A trial court has the authority under RPC 3.7 to disqualify a lawyer

representing a client in the case who is likely to be a necessary witness and

refuses to withdraw from the case.15 Lee did not seek to discharge or disqualify

the GAL.

According to the juvenile dependency and termination statutes and the

rules governing GAL conduct, GAL representation is distinct from legal

representation." The preamble and scope of the RPCs, and the rules

themselves, make it clear that the rules of professional responsibility apply to

lawyers providing legal representation to clients. For instance, the rules require

that in representing the legal interests of clients, lawyers must "conscientiously

and ardently" assert the client's position and are obligated to "abide by the

client's decisions concerning the objectives of representation."17 In contrast, a

GAL, whether or not a lawyer, is ethically obligated to advocate on behalf of the

best interests of the client, regardless of whether that position is contrary to the

wishes of the person on whose behalf the GAL is appointed. While lawyers owe

duties of loyalty and confidentiality toward the clients they represent, GALs must

necessarily divulge information to the court. A GAL must "maintain

15 See Pub. Util. Dist. No. 1 of Klickitat County v. Intl Ins. Co., 124 Wn.2d 789, 811-12, 881 P.2d 1020(1994). 16 In re Dependency of M.S.R., 174 Wn.2d 1, 21, 271 P.3d 234 (2012). 17 RPC pmbl. 2; RPC 1.2(a). -7- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/ 8

independence, objectivity and the appearance of fairness."19 If the GAL is

appointed to represent a child over the age of 12, the GAL must inform the child,

as she did in this case, about the right to request counsel and make a

recommendation to the court about appointment of counse1.19 GALR 2(a)

explicitly distinguishes between the roles of the GAL and legal counsel:

A guardian ad litem shall represent the best interests of the person for whom he or she is appointed. Representation of best interests may be inconsistent with the wishes of the person whose interest the guardian ad litem represents. The guardian ad litem shall not advocate on behalf of or advise any party so as to create in the mind of a reasonable person the appearance of representing that party as an attorney.

Our Supreme Court has also recognized that the function and ethical

obligations of GALs are different from those of attorneys providing legal

representation.

Judges are forced to make incredibly difficult and important determinations. The judge must rely upon the information provided by others. GALs and volunteer CASAs are invaluable to courts. They are often the eyes and ears of the court and provide critical information about the child and the child's circumstances. We recognize that GALs and CASAs are not trained to, nor is it their role to, protect the legal rights of the child. Unlike GALs or CASAs, lawyers maintain confidential communications, which are privileged in court, may provide legal advice on potentially complex and vital issues to the child, and are bound by ethical duties. Lawyers can assist the child and the court by explaining to the child the proceedings and the child's rights. Lawyers can facilitate and expedite the resolution of disputes, minimize contentiousness, and

18 GALR 2(b). 19 RCW 13.34.105(1)(g). -8- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/9

effectuate court orders. Randi Mandelbaum, Revisiting the Question of Whether Young Children in Child Protection Proceedings Should Be Represented by Lawyers, 32 Loy. U. CHI. L.J. 1, 61-62 (2000). We recognize the different, important, and valuable roles of GALs, CASAs, and counsel to children in dependency and parental termination proceedings.[201

The comments to RPC 3.7 reflect the rule's underlying policies: to prevent

confusion on the part of the trier of fact and prejudice to the "opposing party."21

The rule is intended to ensure that juries "ground their decisions on the facts of a

case and not on the integrity or credibility of the advocates."22 The rule also

seeks to prevent the trier of fact from automatically attributing "prestige and

prominence" to the lawyer's testimony.23 The testimony of the GAL in this case

does not implicate these policies. As in all cases involving termination of

parental rights, the court decided the facts. There is no possibility that the court

was misled or confused by the role of the GAL as both an advocate and a

witness. There was no danger of prejudice to either party. Both parties benefit

from the ability to cross-examine the GAL about the GAL's investigation and

recommendations. The GAL does not represent an "opposing party" and does

not advocate for the position of the Department or the parent. Judges fully

appreciate the role of the GAL. "Judges understand that the GAL presents one

20 M.S.R., 174 Wn. 2d at 20-21 (footnote omitted). 21 See RPC 3.7 cmt. 1, 2. 22 Prantil, 764 F.2d at 553. 23 Prantil, 764 F.2d at 553. -9- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/10

source of information among many, that credibility is the province of the judge,

and can without difficulty separate and differentiate the evidence they hear."24

The GAL did not violate any statutory mandate or ethical or court rule by

testifying at the termination trial. RPC 3.7 does not apply because the GAL did

not provide legal counsel to the children. Especially in a termination case like

this one where the judge is the trier of fact, the GAL's role as both an advocate

and a potential witness does not create a risk of error.

Because Lee fails to establish that the GAL's testimony violated any

statute or court rule, she cannot demonstrate that her trial counsel was

constitutionally deficient for failing to object to it. We reach this conclusion under

both the civil standard described in In re Moselev25 and the more rigorous

criminal standard for effective assistance of counsel described in Strickland v.

Washinaton.26

Finally, Lee asserts that the State failed to prove the statutory elements

required to terminate her parental rights under RCW 13.34.180 and failed to

prove that termination of the parent-child relationship was in the children's best

interests. But she does not discuss the evidence or identify any deficiency in the

State's proof. We do not further address this argument.

24 Stamm, 121 Wn. App. at 841. 25 34 Wn. App. 179, 184, 660 P.2d 315 (1983). 26 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). -10- No. 75065-8-1 (consol. w/Nos. 75066-6-1, 75067-4-1, 75068-2-1, 75069-1-1)/ 11

We affirm the termination order.

WE CONCUR:

Cvx, J .

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