Jill Malat1

Chapter Sections

§1 Role of Counsel for Children

An attorney appointed to represent a child in a dependency or termination proceeding represents the child’s position.2

§2 Appointment of Counsel

The court must appoint an attorney for a child in a dependency proceeding six months after granting a petition to terminate the parent and child relationship pursuant to RCW 13.34.180 and when there is no remaining parent with parental rights. The court may appoint one attorney to a group of siblings, unless there is a conflict of interest, or such representation is otherwise inconsistent with the rules of professional conduct.3

The court shall appoint an attorney for those youth who are involved in extended foster care pursuant to RCW 13.34.267.4

A child shall be provided counsel at no cost to the child when a Petition reinstating terminated parental rights is filed by a child pursuant to RCW 13.34.215.5

The court may appoint an attorney to represent any child on its own initiative, or upon the request of a parent, the child, a guardian ad litem, a caregiver, or the department. 6

The child’s caregiver, or any individual, may refer the child to an attorney for the purpose of filing a motion to request appointment of an attorney at public expense.7 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.8

RCW 13.34.090(1) states that any party has the right to be represented by an attorney.9 After a petition has been filed to initiate a dependency proceeding, notice must be sent to the juvenile and the juvenile’s parent, custodian, or guardian containing an advisement of the right to a lawyer.10 The notice must specifically state the following:

  • You have the right to talk to a lawyer if you desire and, if you cannot afford a lawyer, one will be appointed for you.
  • A lawyer can look at the social and legal files in your case, talk to the caseworker, tell you about the law, help you understand your rights, and help you at trial.11

The court must also inquire into the need for appointment of a GAL or an attorney at the shelter care hearing.12 Children are also entitled to the appointment of an attorney when facing contempt proceedings because such proceedings may result in jail time.

Juvenile Court Rule (JuCR) 9.2, entitled Additional Right to Representation by Lawyer, provides for an attorney to be appointed to a child at public expense:

  1. Retained Lawyer. Any party may be represented by a retained lawyer in any proceedings before the juvenile court.
  2. Child in Need of Services Proceedings. The court shall appoint a lawyer for indigent parents of a juvenile in a child in need of services proceeding.
  3. Dependency and Termination Proceedings. The court shall provide a lawyer at public expense in a dependency or termination proceeding as follows:
  • Upon request of a party or on the court’s own initiative, the court shall appoint a lawyer for a juvenile who has no guardian ad litem and who is financially unable to obtain a lawyer without causing substantial hardship to himself or herself or the juvenile’s family. The ability to pay part of the cost of a lawyer shall not preclude assignment. A juvenile shall not be deprived of a lawyer because a parent, guardian, or custodian refuses to pay for a lawyer for the juvenile. If the court has appointed a guardian ad litem for the juvenile, the court may, but need not, appoint a lawyer for the juvenile.

Both the American Bar Association (ABA) and The National Association of Counsel for Children (NACC) support legal representation for children subject to court proceedings involving allegations of child abuse and neglect for the duration of the period the court has jurisdiction over the matter.13

§3 Costs of Counsel

For children appointed attorneys under RCW 13.34.100(6)(a) the state shall pay the costs of legal services provided by an attorney subject to the amounts appropriated for this specific purpose. However, in order for this money to be available legal services must be provided in accordance with the standards of practice, voluntary training, and caseload limits developed and recommended by the statewide children’s representation work group pursuant to section 5, chapter 180, Laws of 2010. These standards can be found at:

http://www.courts.wa.gov/content/PublicUpload/Commission%20on%20Children%20in%20Foster%20Care/HB%202735%20Full%20Final%20Report%20with%20Appendices.pdf

Counties are responsible for the cost of appointed counsel for juveniles in dependency in all other instances.14

§4 Non-GAL Attorney versus Attorney GAL versus CASA

A non-GAL attorney is appointed to represent the child’s stated interest. What results is a client-directed model of advocacy. This model does not prohibit the attorney from acting in his or her capacity as counselor for the child. GALs are appointed by the court to represent the best interest of the child.15

GALs bear certain responsibilities including the requirement to report to the court the child’s views and positions after interviewing and observing the child. The attorney-GAL advocates for a result which they believe is in the best interest of the child. Thus, the resulting relationship is not a client-directed form of representation, and in fact the attorney-GAL’s judgment as to what is in the child’s best interest takes precedence over the client’s wishes.

A Court-Appointed Special Advocate (CASA) is usually a non-professional volunteer who advocates for what he or she believes is in the child’s best interest. The CASA may be represented by an attorney in the proceedings. It is very important for the court to specify whether an attorney is being appointed to act as a GAL to represent the child’s best interest, or as a traditional lawyer appointed to represent the stated interest of the child. Because the roles can be very different, the appointed attorney needs clarification from the bench so that he or she can know and understand the nature of the representation.

§5 Counsel for Child with GAL

RCW 13.34.100 allows for the appointment of a GAL or an attorney to represent the child’s stated position. The appointment of one does not preclude appointment of the other, and in fact it may be appropriate to have both a GAL and an attorney assigned to the same child. For example, it is appropriate to appoint both when a child turns 12 and requests that an attorney be appointed to represent him or her. If there has already been a GAL/CASA on the case who has established a relationship with the youth it may be harmful to the child to take that GAL/CASA off of the case.

§6 Duties of Counsel

Attorneys assigned to represent children have the following duties:

  • Obtain copies of all pleadings and relevant notices;
  • Participate in depositions, negotiations, discovery, pretrial conferences, and hearings;
  • Inform other parties and their representatives that he or she is representing the child and expects reasonable notification prior to case conferences, changes of placement, and other changes of circumstances affecting the child and the child’s family;
  • Attempt to reduce case delays and ensure that the court recognizes the need to speedily promote permanency for the child;
  • Counsel the child concerning the subject matter of the litigation, the child’s rights, the court system, the proceedings, the lawyer’s role, and what to expect in the legal process;
  • Develop a theory and strategy of the case to implement at hearings, including factual and legal issues; and
  • Identify appropriate family and professional resources for the child.16

§7 Notification of Right to Counsel to Children and Youth in Dependency Proceedings

The Department of Social and Health Services or the relevant supervising agency and the child’s GAL must notify a child of his or her right to request counsel and to ask the child whether he or she wishes to have counsel appointed. This inquiry must be made immediately upon the child’s twelfth birthday, or if the child is 12, when the case is filed.17 DSHS or the supervising agency and the GAL must repeat the notification at least annually upon the filing of any motion or petition affecting the child’s placement, services, or familial relationships.18 Both DSHS or the supervising agency and the GAL must make a note in their reports that they have fulfilled this obligation.19 The court is also required to inquire as to whether the child has received notice of his or her right to counsel.20

§8 Meaningful Legal Representation for Children and Youth in Washington’s Child Welfare System

The Statewide Children’s Representation Workgroup, which was appointed by the Washington Supreme Court Commission on Children in Foster Care, released a publication addressing standards of practice, voluntary training and caseload limits in response to H.B. 2735.21 This publication is available through the Administrative Office of the Courts and the Court Improvement Training Academy (CITA). These standards of practice are required to be followed by attorneys appointed pursuant to RCW 13.34.100(6). Judges are encouraged to obtain a copy of it and review it to make sure that best practices are being followed in all cases.

 

Download this chapter: Chapter 5 – Counsel for Children

ENDNOTES

  1. Jill Malat is the Program Manager of the Children’s Representation Program. Prior to that she worked for Columbia Legal Services Advocating for legal rights of foster youth. She was an Associate attorney at the law firm of Mazzone and Cantor, LLP where she practiced criminal defense. Prior to that, she was the Children’s Representation Attorney at the Washington Defender Association (WDA). Prior to joining WDA she worked as a public defender for over 13 years at both the Society of Counsel Representing Accused Persons in King County and the Skagit County Public Defender Office. Jill has taught law at Istanbul Bilgi University in Turkey, and she serves on the board of managers of the Downtown Seattle YMCA, where she is also able to focus on youth related issues.
  2. RCW 13.34.100(7)(a)
  3. RCW 13.34.100(6)(a)
  4. RCW 13.34.267(6)
  5. RCW 13.34.215(3)
  6. RCW 13.34.100(7)(a)
  7. RCW 13.34.100(7)(b)(i)(A)
  8. RCW 13.34.100(7)(b)(i)(B)
  9. Case law does not clearly establish whether children are parties to their own dependency or termination proceeding. For more on this subject, please refer to Chapter 4, footnote 29.
  10. RCW 13.34.070; RCW 13.34.100; JuCR 3.4.
  11. JuCR 3.4(b)(1)–(2).
  12. RCW 13.34.065(4)(g).
  13. See generally Nat’l Ass’n of Counsel for Children, American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, NACC revised version, (1996), available at http://www.naccchildlaw.org/?page=PracticeStandards [hereinafter Standards of Practice]; Marvin Ventrell, Legal Representation of Children in Dependency Court: Toward a Better Model – The ABA (NACC Revised) Standards of Practice (1999), available at http://www.naccchildlaw.org/?page=PracticeStandards.
  14. See generally RCW 10.101.030; RCW 26.09.110; In re J.D., 112 Wn.2d 164, 769 P.2d 291 (1989).
  15. RCW 13.34.030(c)(8).
  16. Standards of Practice 3–4.
  17. RCW 13.34.100(7)(c)(i)
  18. RCW 13.34.100(7)(d).
  19. RCW 13.34.100(7)(f).
  20. Id at (g)(iii)
  21. 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 H.B. 2735 (2010), http://www.naccchildlaw.org/resource/resmgr/news_items/meaningful_legal_representat.pdf.