Not all children in child welfare cases in Washington state are entitled to a lawyer to represent them in dependency court, according to a ruling earlier this month from a divided Washington State Supreme Court.
Most states guarantee the appointment of an attorney for children involved in dependency court proceedings. Washington is one of 14 states in the country that does place restrictions on when an attorney can be provided in this situation, according to research from First Star and the Children’s Advocacy Institute.
In another youth-related decision, the state’s high court also declared life without parole (LWOP) sentences for juvenile offenders to be unconstitutional, putting Washington in league with 19 other states that do not permit LWOP sentences for youth.
Although children in the state’s foster care system will not be entitled to a universal right to counsel, the court did strengthen the rights of children during dependency proceedings. Foster children will no longer be required to make a formal request for legal representation. Instead, dependency court judges must now consider providing an attorney for children in court at the earliest moment possible during dependency proceedings.
In the court’s ruling, it laid out the criteria that should govern whether a child in dependency is provided an attorney. Factors include:
- The child’s age
- Whether the child has been removed from his or her home
- How the child’s interest aligns with parties in the case
- Whether the child disputes the facts
- Whether the child presents a “complex argument against the state’s proposed action.”
In a majority opinion, Justice Susan Owens upheld the right of dependency court judges to appoint attorneys for children on a discretionary basis. According to Owens, cases in dependency court vary widely, and lawyers may not always be necessary.
“In some instances, such as when the parents agree to the dependency or when the state does not assume legal or physical custody of the child, this tension will be lessened,” she wrote. “In other instances, where the dependency is contested or when the state assumes custody of a child, the tension may be heightened. Accordingly, the amount of process due to children in dependency proceedings will vary with each case.”
Justice Mary Yu provided a fiery dissent to the majority opinion, describing it as “rejecting the progress we have made and reverting to the view that children in dependency cases are commodities to be allocated, not individuals to be heard.”
“I cannot join the lead opinion’s retreat to a perspective that treats children as mere ‘chattels incident to adult domestic relations,’” she wrote in an opinion that was joined by Justice Steven C. González and, in part, by Justice Barbara Madsen.
Some counties in Washington do provide automatic legal representation for children older than 12 in dependency court, but before the court’s opinion, there was little policy guidance about when lawyers should be appointed. All parents of children involved with the child welfare system are assigned state-funded lawyers in dependency court proceedings, but children often must rely on volunteer Court Appointed Special Advocates, or CASAs, to represent their wishes in court.
CASAs are volunteers, not attorneys of record on child welfare cases, and are thus unable to file motions in court. And a recent scandal with one of the state’s CASA programs, in Snohomish County, reflects the concern some child welfare observers have about granting significant court influence to volunteers.
A bid to guarantee legal representation for all foster children older than 2 fizzled out last year in the Washington state legislature because of concerns about legal costs. However, last July, Gov. Jay Inslee (D) signed a bill that provided $1.4 million to fund a two-year pilot project to provide lawyers for foster children in four counties during dependency proceedings. The goal is to provide a better look at how legal representation affects outcomes for these children, and a report is due back on December 1, 2018.
“We continue to believe the only fair way to treat children in foster care is to appoint them attorneys,” said Candelaria Murillo, an attorney at Columbia Legal Services’ Children & Youth Project, who argued the case before the Washington Supreme Court in March 2018. “Too often youth end up with justice by geography, with some counties always appointing attorneys and other counties never appointing attorneys. We’re looking for justice for all children across our state.”
The court’s juvenile justice decision stemmed from the case of Brian Bassett, now 39, who at age 16 was convicted of killing his parents and brother and sentenced to life in prison. In a 5-4 decision, the court ruled that LWOP sentences, when handed to a juvenile, amount to cruel and unusual punishment.
The U.S. Supreme Court has whittled away the permissible use of harsh sentences for juveniles, beginning in 2005 with the Roper v Simmons decision to ban the juvenile death penalty. That was followed in 2010 by Graham v Florida, which banned LWOP sentences in cases involving non-homicides.
In 2012, the Miller v. Alabama ruling established that LWOP was unconstitutional as a mandatory sentence for juveniles convicted of homicides. Washington now becomes the 20th state to ban LWOP sentences for juvenile offenders under any circumstances.