IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
IN RE THE DEPENDENCY OF ) No. 69713-7-1 M.P., a minor, ) Consolidated w/ No 69714-5-1
rva STATE OF WASHINGTON, cr> coc
-r- DEPARTMENT OF SOCIAL & HEALTH O SERVICES, c?
Respondent, ) DIVISION ONE CD
v.
PAUL PARVIN and LESLIE CD O BRAMLETT, ) PUBLISHED OPINION
Appellants. ) FILED: October 20. 2014
Spearman, C.J. — After a trial on the State's petition for guardianship as
to M.P., the trial court entered orders establishing the guardianship and
dismissing the dependency as to M.P. The parents of M.P., Paul Parvin and
Leslie Bramlett, appeal the trial court's orders. Bramlett argues that the trial court
erred when it excluded two defense witnesses without conducting a Burnet1
inquiry on the record. She argues, in the alternative, that her lawyer provided
ineffective assistance when the lawyer failed to give proper notice of the
excluded witnesses. Both parents also contest the trial court's findings of fact and
conclusions of law. Because the trial court failed to make findings on the record
regarding the three Burnet factors prior to excluding Bramlett's witnesses, we
reverse the orders establishing the guardianship and dismissing the dependency.
We also conclude that RCW 13.36.040(2)(c)(iv) requires the State to prove that
Burnet v. Spokane Ambulance. 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). No. 69713-7-1/2
all ordered and necessary services have been "expressly and understandably"
offered or provided to the parents.
FACTS
Paul Parvin and Leslie Bramlett are the natural parents of M.P. In June
2010, M.P. was removed from his parents' custody based on allegations that
M.P. was neglected while in their care. The State, through the Department of
Social and Health Services, alleged Parvin and Bramlett were unable to parent
M.P. because they suffered from mental illness and substance abuse and had a
history of domestic violence. In August 2010, a dependency was established by
agreed order as to both parents. The court ordered both parents to participate in
mental health services, parenting counseling, urinalysis testing, and other
services.
Approximately a year later, the State determined that neither parent had
made sustained progress addressing their parental deficiencies and, on August
31, 2011, filed a petition for termination of parental rights. Trial on the petition
was initially set for January 17, 2012. The court issued an Order Setting Case
Schedule, which established December 1, 2011 as the discovery cutoff date.
The trial date was continued several times. First, on December 21, 2011,
upon Parvin's motion, the trial court continued the trial date to March 5, 2012, but
specifically declined to amend the case schedule. On February 29, 2012, upon
the joint motion of Parvin and Bramlett, the trial court continued the trial date until
April 30, 2012, with no further amendment to the case schedule. On April 10,
2012, the State moved to substitute a guardianship petition for the termination
petition. The motion was granted and trial was continued to May 21, 2012. The No. 69713-7-1/3
court ordered that the termination case schedule and guardianship case
schedule be consolidated for trial. On June 8, 2012, the parties filed an agreed
motion to continue the trial date after the State mistakenly tendered discovery
responses containing unredacted privileged materials and work product. The trial
court continued the trial to August 13, 2012, with a pretrial conference to be held
on August 3, 2012. This order made no mention of the case schedule.
One month later, on July 9, 2012, Bramlett was assigned new defense
counsel. On August 2, 2012, Bramlett moved the court for another continuance of
the trial date to allow her new attorney to prepare for trial. The next day, Bramlett
and the State, through their attorneys, appeared at the August 3, 2012 pretrial
conference and argued the motion. At the conclusion of the hearing, the trial
court entered two orders. One order, entitled "pretrial conference order,"
amended the deadlines for pretrial disclosures by all parties, specifying that
updated discovery must be provided to opposing parties on August 10, 2012, and
that witness lists must be disclosed by August 13, 2012. The other order
continued trial to August 27, 2012, indicated that no further continuances would
be granted, and stated that "[n]o amended case schedule is necessary for this
case." Clerk's Papers (CP) at 854.
On August 14, 2012, two weeks before trial and one day after the August
13 disclosure date established by the pretrial conference order, Bramlett served
the State with a witness list that included, for the first time, Dr. Makiko Guji.
Bramlett claimed Dr. Guji had treated her for the past year and would testify that
Bramlett had made good progress in treatment. Dr. Guji's involvement in
Bramlett's treatment had never been disclosed to the assigned social worker or No. 69713-7-1/4
the court. No records, reports, evaluations, qualifications, or other information
outlining the expected testimony was provided to the State at that time.
Two days later, on August 16, 2012, Bramlett filed an amended witness
list that included a second previously undisclosed witness, Dr. Carmela
Washington-Harvey.2 Bramlett represented that Dr. Washington-Harvey was
prepared to opine that Bramlett was able to capably parent M.P.
The State filed a motion to exclude the testimony of both Dr. Guji and Dr.
Washington-Harvey because neither witness had been disclosed in compliance
with the case schedule. M.P.'s Court Appointed Special Advocate (CASA) joined
in the State's motion, asserting that she had just been apprised that Bramlett
intended to call Dr. Guji and Dr. Washington-Harvey as expert witnesses and that
she had never been advised that an evaluation by Dr. Washington-Harvey was
underway. The trial court granted the State's request.
The case proceeded to trial on September 13, 2012. At the end of trial, the
court granted the State's guardianship petition and entered an order appointing
M.P.'s maternal aunt, Kim Kerrigan, as M.P.'s guardian. The court also entered
an order dismissing the dependency as to each parent solely on the basis that
the guardianship had been established as to M.P. The court also reduced the
parents' visitation from three unsupervised visits per week to one supervised visit
per week. Both parents appeal.
2The parties dispute whether this witness list was served on the State contemporaneously. The State maintains that it was not served with this witness list at the time of filing and only learned that Dr. Washington-Harvey would be called as a witness when itwas provided a copy of her evaluation on August 25, 2017. No. 69713-7-1/5
DISCUSSION
I.
Bramlett contends the trial court abused its discretion when it excluded the
testimony of Dr. Guji and Dr. Washington-Harvey as a sanction for discovery
violations. She argues that because the trial court failed to make the necessary
findings under Burnet before excluding her witnesses she is entitled to a new trial.
The State contends Burnet is not applicable in this case because only
testimony was excluded. It argues that a trial court need only consider the Burnet
factors when it imposes the "most severe" sanctions of dismissal or default. Brief
of Respondent at 16. The State also argues that even if Burnet is applicable, the
trial court did not abuse its discretion by excluding Bramlett's witnesses because
the record shows the trial court gave sufficient consideration to the relevant
factors. We reject the State's arguments and agree with Bramlett.
A trial court has broad discretion when imposing sanctions for discovery
violations and we will not disturb a trial court's determination in this regard
"'except on a clear showing of abuse of discretion, that is, discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.'"
Burnet, 131 Wn.2d at 494. (quoting Associated Mortgage Investors v. G.P. Kent
Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558 (1976). When the trial court
chooses to impose one of the harsher remedies allowable under the discovery
rules, it must be apparent from the record that the trial court explicitly considered
whether a lesser sanction would probably have sufficed, and that it found the
disobedient party's refusal to obey a discovery order was willful or deliberate and
the violation substantially prejudiced the opponent's ability to prepare for trial. \_± No. 69713-7-1/6
The State relies on Maver v. Sto Indus.. Inc.. 156 Wn.2d 677, 132 P.3d
115, 118 (2006) to argue that the exclusion of testimony is not one of the
"harsher remedies" permitted under the discovery rules and thus not subject to
Burnet. But neither Mayer nor subsequent cases addressing this issue supports
the State's position. In Maver. the Supreme Court explained which discovery
sanctions trigger consideration of the Burnet factors as follows:
[T]he case law that the Burnet court relied on established that before a trial court may impose a CR 37(b)(2)(B) sanction excluding testimony, a showing of willfulness was required; that, for 'one of the harsher remedies allowable under CR 37(b),' the record must clearly state the reasons for the sanction; and that for the 'most severe' CR 37(b)(2)(C) sanction of dismissal or default, the record must show three things—the trial court's consideration of a lesser sanction, the willfulness of the violation, and substantial prejudice arising from it. However, by elliptically quoting the three-part test of rSnedigarv. Hodderson. 53 Wn. App. 476, 487, 768 P.2d 1 (1989), rev'd in part. 114Wn.2d 153, 786 P.2d 781 (1990)1. the Burnet court extended the test beyond the 'most severe' sanctions of dismissal or withdrawal to encompass 'the harsher remedies allowable under CR 37(b)'—a phrase that, at a minimum, means a CR 37(b)(2)(B) sanction excluding testimony but that, more broadly, encompasses any and all of the sanctions described in CR 37(b)(2)(A)-(E).
Maver, 156 Wn.2d at 688. Thus, the Maver court made explicit the requirement
that trial courts consider the Burnet factors prior to excluding witness testimony
as a discovery sanction. The court reiterated this rule in Blair v. Ta-Seattle East
No. 176, 171 Wn.2d 342, 349, 254 P.3d 797 (2011) ("Maver clearly held that trial
courts do not have to utilize Burnet when imposing lesser sanctions, such as
monetary sanctions, but must consider its factors before imposing a harsh
sanction such as witness exclusion"); Teter v. Deck, 174 Wn.2d 207, 217, 274
P.3d 336 (2012) ("Discovery sanctions that trigger consideration of the Burnet
factors include exclusion of witness testimony") (citing Maver, 156 Wn.2d at 690); No. 69713-7-1/7
and Jones v. City of Seattle, 179 Wn.2d 322, 344, 314 P.3d 380 (2013) (finding a
Burnet violation where the trial court properly considered prejudice, but not
willfulness or lesser sanctions prior to exclusion of late-disclosed witnesses). We
conclude that Burnet is applicable to this case and turn to whether the trial court's
exclusion of Bramlett's witnesses is supported by adequate findings.
The trial court based its conclusion that exclusion of Bramlett's witnesses
was proper on considerations of public policy and its interpretation of King
County Court Local Civil Rules 26(k)(4). The court found that as a matter of
policy, indigent defendants who obtain experts ex parte, as in this case, should
bear the burden of timely disclosure of those witnesses, at the risk of exclusion. It
further determined that "King County's civil rules specifically prohibit witnesses to
be called to testify if they were not disclosed in accordance with the case
schedule."3 (Emphasis added). CP at 1147. But the requisite findings under
Burnet are absent from the record.
The State argues the record is sufficient for us to conclude that the third
Burnet factor, willfulness, was established and that the other two factors were
explicitly found by the trial court. The arguments are unpersuasive.
First, it is incumbent upon the trial court to make the requisite findings as
to all three factors. Teter, 174 Wn.2d at 216-17. The State concedes the trial
court made no finding as to willfulness but urges that we may do so based on the
3 We note that LCR 26(k)(4) provides that "[fjailure to comply with ... the court's Order Setting Case Schedule may result in sanctions, including the exclusion of witnesses." (Emphasis added). Generally, when the term "may" is used in a statute or court rule, it is an indication that a referenced course of action is discretionary rather than mandatory. See, e.g., In re Marriage of Kim. 179 Wn. App. 232, 250-51, 317 P.3d 555. review denied. 180 Wn.2d 1012, 325 P.3d 914 (2014). The trial court's conclusion that excluding the witnesses was mandatory under the local rule was erroneous. No. 69713-7-1/8
record from below. The State is incorrect. The Supreme Court has explicitly
"rejected] the premise 'that an appellate court can consider the facts in the first
instance as a substitute for the trial court findings that our precedent requires.'"
Teter, at 217-18 (quoting Blair, 171 Wn.2d 342, 351).
Second, even if we were to do as the State suggests and find that the
discovery violation was wilful, it would be unavailing because the trial court's
consideration of whether a lesser sanction would suffice fails to satisfy Burnet.
Generally, the purpose of sanctions is to deter, to punish, to compensate, to
educate, and to ensure that the wrongdoer does not profit from the wrong.
Burnet, 131 Wn.2d at 496, citing Washington State Phvsicians Ins. Exch. & Ass'n
v. FisonsCorp., 122 Wn.2d 299, 356, 858 P.2d 1054 (1993). Here, the trial court
considered the State's alternative request for attorney fees and costs as a
sanction and concluded that such a sanction was inappropriate. It reasoned that
it made no sense to reallocate tax dollars from one public agency (the public
defender) to another (the attorney general). But the court did not explain why
such a reallocation of funds and the resulting burden on the public defender's
budget would not serve to deter similar conduct in the future or meet any of the
other purposes of imposing a sanction.
Additionally, while the trial court correctly found the State's and the
CASA's ability to prepare for trial would be substantially prejudiced if Bramlett's witnesses testified, itfailed to adequately consider whether the lesser sanction of
continuing the trial would be a sufficient remedy. The trial court concluded, without explanation, that it "would prejudice the [SJtate ... to continue the trial again." CP at 1147. But there is no indication in the record that the court
8 No. 69713-7-1/9
considered the length of any continuance necessary to allow the State to prepare
for Bramlett's late-disclosed witnesses. Without this information, the court could
not properly determine the extent of the prejudice, ifany, that a delay would
cause. Because the trial court did not articulate, in other than general terms, the
nature of the prejudice a continuance would cause, we conclude it gave
inadequate consideration to whether a lesser sanction would suffice.4
The erroneous exclusion of a party's witnesses is reversible error unless
the error was harmless. Jones, at 356. In Jones, our supreme court applied, for
the first time, a harmless error analysis to a Burnet violation.5 The court held the
error in that case was harmless because the excluded testimony was largely
irrelevant or cumulative. Jones, at 356-57. Here, we are unable to determine
whether the excluded testimony would have been cumulative, irrelevant, or
otherwise inadmissible. The admissibility of the excluded testimony was not
litigated below and there is little in the record to indicate, in more than general
terms, the nature of the testimony expected to be elicited from the excluded
witnesses. On this record, we are unable to say the exclusion of Bramlett's
witnesses was harmless. Accordingly, the orders establishing the guardianship
and dismissing the dependency must be reversed.
II.
Bramlett also argues that the trial court misinterpreted the guardianship
statute and improperly lowered the State's burden of proof. Because the issue
4 The State also points out that the trial court concluded that a continuance would violate M.P.'s right to timely permanency. But in the absence of any indication of the length of any necessary delay, the record does not support this conclusion. 5 We note that Jones was decided after briefing was completed in this matter, but at our request, the parties did address the issue at oral argument. No. 69713-7-1/10
may arise on remand we address it here. To establish a guardianship under
RCW 13.36.040(2),6 a court must find that each of the statutory elements have
been proven by a preponderance of the evidence.7 In re Dependency of A.C,
123 Wn. App. 244, 248, 98 P.3d 89 (2004).
RCW 13.36.040(2)(c)(iv) provides, in relevant part:
The services ordered under RCW 13.34.130 and 13.34.136 have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided;
6 RCW 13.36.040(2) provides:
(2) A guardianship shall be established if:
(a) The court finds by a preponderance of the evidence that it is in the child's best interests to establish a guardianship, rather than to terminate the parent-child relationship and proceed with adoption, or to continue efforts to return custody of the child to the parent; and
(b) All parties agree to entry of the guardianship order and the proposed guardian is qualified, appropriate, and capable of performing the duties of guardian ... or
(c)(i) The child has been found to be a dependent child...;
(ii) A dispositional order has been entered...;
(iii) At the time of the hearing on the guardianship petition, the child has or will have been removed from the custody of the parent for at least six consecutive months following a finding of dependency...;
(iv) The services ordered ... have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided;
(v) There is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; and ...
(vi) The proposed guardian has signed a statement acknowledging the guardian's rights and responsibilities toward the child and affirming the guardian's understanding and acceptance that the guardianship is a commitment to provide care for the child until the child reaches age eighteen.
7 Bramlett argues that the State had a burden of proving the statutory elements by clear, cogent, and convincing evidence. She is mistaken. Unlike parental termination cases, which apply the clear, cogent, and convincing evidence standard, guardianship need only be established by a preponderance of the evidence. See, In re A.C, supra.
10 No. 69713-7-1/11
By comparison, Washington's termination statute provides:
(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;
RCW 13.34.180(1 )(d) (emphasis added). Noting the difference between the two
statutes, the trial court concluded that RCW 13.36.040(c)(iv) "does not require
that services be 'expressly and understandably' offered or provided."8 CP at
1043. We disagree.
The trial court's construction of a statute is an issue of law, which we
review de novo. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). A court
interpreting a statute must discern and implement the legislature's intent. Anthis v.
Copland, 173 Wn.2d 752, 756, 270 P.3d 574 (2012). Where the plain language of
a statute is unambiguous and legislative intent is apparent, the reviewing court will
not construe the statute otherwise. Id. Plain meaning may be gleaned "from all
that the Legislature has said in the statute and related statutes which disclose
legislative intent about the provision in question." Id. (citing Dep't of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). If the statute is still
"susceptible to more than one reasonable interpretation, then a court may resort
to statutory construction, legislative history, and relevant case law for assistance
in determining legislative intent." Id. (citing Christensen v. Ellsworth, 162 Wn.2d
365, 373, 173 P.3d 228 (2007)).
8 "Expressly and understandably" offering or providing services means, among other things, that services must be tailored to the parent's individual needs. See, e.g. In re Dependency ofT.R.. 108 Wn. App. 149, 161. 29 P.3d 1275 (2001): In re Dependency of H.W., 92 Wn. App. 420, 429-30, 961 P.2d 963 (1998).
11 No. 69713-7-1/12
Before 1998, the language of the termination statute, RCW 13.34.180(4),
was identical in all relevant respects to the language at issue here in the
guardian statute, RCW 13.36.040(2)(c)(iv). The termination statute, provided:
(4) That the services ordered under RCW 13.34.130 have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided.
Laws of 1997, ch. 280, § 2. Despite the absence of express statutory language
mandating that services be "'expressly and understandably'" offered or provided,
courts nevertheless interpreted former RCW 13.34.180(4) (1998) as containing
such a requirement. See, e.g., In re Dependency of PAD., 58 Wn. App. 18, 792
P.2d 159 (1990) (concluding that the State must understandably offer remedial
services by tailoring them to individual needs of the parents); In re Welfare of
Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983) (requiring the State to expressly
offer services by, minimally, providing the parents with a referral list). In 1998 the
Legislature, in apparent recognition ofthose cases, amended the statute to add the words "expressly or understandably." Laws of 1998, ch. 314, § 4.
The legislature is presumed to be familiar with judicial interpretations of
statutes and, absent an indication it intended to overrule a particular
interpretation, amendments are presumed to be consistent with previous judicial decisions. State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610 (2000). Hence, the
legislature is presumed to have been aware, when it enacted the amended guardianship statute, that the language used implicitly includes a requirement that remedial services be expressly and understandably offered or provided. We
find no reason, and the State offers none, to depart from earlier decisions
12 No. 69713-7-1/13
interpreting the nearly-identical language of former RCW 13.34.180(4). We
conclude that in a guardianship proceeding under RCW 13.36.040(2), subsection
(c)(iv) requires the State to prove that remedial services were expressly and
understandably offered or provided to the parents.
III.
We reverse the orders establishing the guardianship and dismissing
dependency, reinstate the dependency as to both parents and remand for further
proceedings consistent with this opinion.9
Reverse and remand.
Mf6/^0^^>M >. WE CONCUR:
"T?»
9 In lightof the grounds upon which we resolve this case, we need not address the remaining issues raised by the parties.