      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?» <x<        7




        9 In lightof the grounds upon which we resolve this case, we need not address the
remaining issues raised by the parties.

                                              13
