                                                                                                                   x
                                                                                                                           f L EI
                                                                                                             COWL OF APPEALS
                                                                                                                       D( Vi5ft,N Y

      IN THE COURT OF APPEALS OF THE STATE OF WASHIN264

                                                           DIVISION II
                                                                                                             BY_

In re Dependency of                                                                       No. 45134 -4 -II
                                           J. A.,


                                                     A minor.
                                                                                     UNPUBLISHED OPINION



           HUNT, P. J. —       We                   JA'        petition for review of the juvenile court' s denial of his
                                                          s1




                                        granted



motion to appoint counsel at public expense under RCW 13. 34. 100( 6) to represent him in his


dependency      proceedings.
                                        JA argues that the juvenile court abused its discretion in finding that
                                          Mathews2

his   request   did   not meet     the                     factors because ( 1) he had a significant private interest at

stake; (   2) the juvenile court failed to consider the benefit of additional safeguards for JA, namely

his   own    counsel    to     advocate      for him;          and (   3)    the government' s interest in protecting him

outweighed      the   cost of counsel.         JA also argues that the State' s failure to require appointment of


counsel for all children in dependency proceedings violates the due process clauses of the U. S.

Constitution3 and the Washington Constitution4 and that the Washington Constitution provides

greater due process rights to dependent children than its federal counterpart.

           In light of the new evidence JA presented, we hold that the juvenile court misapplied the


Mathews factors         when       it denied his           motion      for   reconsideration.   Therefore, we reverse the




  To provide some confidentiality, we use the juvenile' s and his family' s initials in the case
caption and in the body of the opinion.

2 Mathews v. Eldridge, 424 U. S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976).

3 U.S. CONST. amend. XIV.
4
    WASH. CONST.       art.   I, § 3.
No. 45134 -4 -II



juvenile court' s denial of JA' s motion for reconsideration and remand with instructions to


appoint counsel for JA for his dependency proceeding. Accordingly, we neither address whether

the juvenile court erred in denying JA' s initial request for appointment of counsel nor reach the

issue of whether due process requires appointment of counsel for all juveniles involved in


dependency proceedings.

                                                       FACTS


                                           I. DEPENDENCY BACKGROUND


         JA is a developmentally delayed 15- year -old boys who functions at a 7- year -old level. In

school, he has been in a self -
                              contained classroom with an individual education plan for special


education     and   behaviors.         JA' s mother, MB, has been involved in at least eight previous


Department     of   Social   and   Health Services ( DSHS)     referrals     involving   JA. DSHS had concerns


about MB' s physical abuse and neglect of JA and concerns about MB' s mental health based on


past referrals for her own developmental delay, learning disabilities, and diagnoses of bi-polar,

depression, and anxiety.
                                                                        6
         As   a result of    MB'   s   neglecting JA, his father, CA,       obtained   custody   of   JA in 2009. CA


has a criminal history, including multiple failures to register as a sex offender, obstructing, intent

to manufacture methamphetamine, refusal to give information, and burglary.

         On February 2, 2010, JA' s school staff filed a referral with DSHS alleging concerns

about physical      abuse    by CA:        JA had bruising along his left collarbone up through his left



5
    JA was born in March 1999.


6 CA is not a party to this appeal; we address CA only to the extent that his involvement affects
JA' s right to appointment of counsel on appeal.



                                                          2-
No. 45134 -4 -II



shoulder area, and             JA had    reported      that      his father   was " mad and `           hurt [ him]."         Clerk' s Papers


 CP)   at   3.     Following up on JA' s report, a social worker spoke with JA at school and observed

red marks         on .JA' s     left   collarbone;         JA    reported     the       marks    were   from his father.            The social


worker      then       spoke   with    CA,     who (       1)   said   that JA'     s   bruises   were    from    a   fight    at   school, (   2)


denied using physical force to discipline JA, and ( 3) disclosed he had past methamphetamine

charges for which he had served two years in prison but he had been clean since then.

            In   May    2010, the      social worker received another referral about                          JA' s   family.       She went to


JA' s home and spoke to the landlord, who reported that he had evicted JA' s family and that he

had    seen      CA'   s girlfriend pull a         knife    on   CA    and push         JA to the     ground.   The social worker later


spoke with CA, who denied drug use, admitted numerous domestic violence incidents with his

girlfriend, and admitted bringing JA back to his girlfriend' s residence after she had pulled a knife

on him and JA.


                                                                 II. PROCEDURE


                                                      A. Dependency Hearings

            On June 3, 2010, Children' s Protective Services ( CPS) filed a dependency petition under
                                              7,
RCW 13. 34. 030( 6)( b)            and ( c)        alleging that JA had been abused by his father and had no parent,

guardian, or custodian capable of adequately caring for him such that he was in circumstances .

                    a   danger    of substantial       damage to his           psychological or physical               development. The
constituting


juvenile         court appointed        JA    a guardian ad            litem ( GAL),       who was later replaced by a different



7
    The legislature        amended        RCW 13. 34. 030 in 2010, 2011                         and   2013.   The amendments did not
alter the statute in any way relevant to this case; accordingly, we cite the current version of the
statute.




                                                                          3
No. 45134 -4 -II




GAL. On June 4, DSHS placed JA into foster care at a Behavioral Rehabilitation Service ( BRS)

foster home.        He     was    found dependent in August.                 Both MB and CA were authorized weekly

    hour
two -        supervised visits with          JA. In September 2010, the juvenile court ordered psychotropic


medication        treatment      for JA' s Attention Deficit Hyperactivity Disorder ( ADHD), night -
                                                                                                   time



impulsivity, and hyperactivity.

          On September 27, the juvenile court held JA' s first dependency review; neither MB nor

CA    appeared.       The juvenile court recommended returning JA to his mother and father as JA' s

permanency         plan.    The juvenile        court (   1)   found that MB was not compliant with the court' s


initial   order and      that    neither parent    had    visited    JA; ( 2) determined that DSHS should continue


placing JA in foster care; and ( 3) ordered MB to provide documents to the social worker and to

the GAL, to       undergo urinalysis        testing,    and    to   provide    DSHS         with relevant progress reports.   On


September 30, DSHS appointed a third new GAL for JA.


          In March 2011, the juvenile court held a permanency planning hearing. It found that MB

was still not compliant with the court' s order and had made no progress correcting the parenting

deficiencies that had            necessitated   JA'   s placement          in foster   care.    At another review hearing on

September 13, the juvenile court found that MB was not in compliance with her responsibilities


under the court' s dispositional plan.8 DSHS recommended adoption as JA' s permanent plan,



8 The dispositional plan required MB to cooperate with DSHS by ( 1) providing information to
establish    JA' s eligibility for       medical care, (       2) providing written documents to the social worker
and   the GAL, (3) participating in three               random urinalysis         tests      and psychological evaluations, ( 4)


keeping     the   social worker         informed   of   her ( MB'     s)    contact    information, ( 5)   contacting the social
worker about        her    progress      reports, (   6) updating          releases    of   information for "   past and present

records,"    and ( 7) demonstrating an ability to maintain a safe, stable, and protective home for
raising    a child.   CP    at   187.
No. 45134 -441


                                                                              9
with   returning JA to his     family    as an alternate permanent plan.          The juvenile court determined


that JA    should remain      in foster   care   pending   a permanent plan.       Given both parents' lack of


compliance and lack of progress with DSHS' s recommendations, DSHS stated it would file a

termination petition.



          In January 2012, the GAL reported that JA continued residing in the BRS foster home,

still struggling with using foul language, threatening people, hoarding food, and running away

from case aides; nevertheless, he appeared to be happy in this foster home placement. The GAL

further reported that JA' s foster parent, Marilyn Mora, was willing to keep JA as long as he

remained      in the BRS     program.     The GAL     recommended (      1)   finding both MB and CA not in

compliance and not making progress; and ( 2) adoption as JA' s new permanent plan, because he

deserved permanence and stability in his life.

          In February, the juvenile court held another permanency planning hearing; again, MB

was not present.         The juvenile court recommended adoption as a primary permanency plan for

JA,    with   foster   care as an alternative    permanency    plan.   CA had been recently incarcerated to

serve a 43 -month sentence.


          Thus, in June, JA continued his placement with foster parent Mora and received services


in the BRS Program. JA' s latest social worker (his third since the original referral) noted that JA


    1) had recently    graduated   from elementary    school   to   middle school; (   2) had been placed into a




9
  The juvenile court did not consider returning JA to his family home as the primary permanent
plan because neither parent had participated in services or demonstrated an ability to make life
changes to enable effective parenting or to provide a safe stable home free of drug use, domestic
violence, and criminal       activity.
No. 45134 -4 -II




                                                              instability; ( 3) had
                                                                                                              meltdowni10—




youth      inpatient   unit   because     of   his   mental                                suffered a "                            refusing


to get ready for school, pounding on windows, and breaking a baseboard heater in his inpatient

home, which resulted in his being taken into juvenile detention; and ( 4) had made statements

about      wanting to "       get"    his foster     mother    in jail.     CP      at   301.     Since the last review hearing,

however, MB had told DSHS that she lacked mental capacity and was not a resource for her son.

            JA' s latest GAL reported that JA had visits with his mother, which went well, and wanted

to    go   home   with   his    family. Nevertheless, the GAL recommended adoption as JA' s primary

permanent plan because his parents showed no interest in being a placement resource for him. In

July, the juvenile court held a dependency review and, in considering the aforementioned reports,

recommended adoption as a permanent plan, with the alternative of returning JA home to MB.

            On December 13, the juvenile court held another dependency review. Mora reported that

 1)    after visits with      his    mother,    JA    was emotional and expressed                 wanting to "        go   home "; ( 2) JA


had begun urinating and defecating in his room in Mora' s presence; and ( 3) she wanted to be

considered as a permanent placement resource                         for him. CP          at    342. The GAL also reported that


JA continued to express wanting to go home to his family, that he continued visiting his mother

and sister       weekly,      and    that according to JA his         visits with         his   mother and sister went well.              At


this    point,   the GAL       recommended            that the juvenile        court adopt a "            Title 13   Guardianship " 11 as

JA'    s permanent plan rather            than       terminating MB'       s   or   CA' s      parental 'rights.       CP    at   343.   The


juvenile court again found MB not compliant with the court' s order and that MB had made no

progress      toward correcting the            problems       that   had   necessitated         JA'   s   foster   care placement.       The




 10CPat300.
 11
      Title 13 RCW.
No. 45134 - -II
          4




juvenile court ordered dependency guardianship as JA' s primary permanency plan and adoption

as the alternative permanency plan.

           B. JA' s RCW 13. 34. 100 Motion for Appointment of Counsel at Public Expense


          Three months later, on March 1, 2013, JA filed a motion for appointment of counsel at

public    expense under        RCW 13. 34. 100.            The University of Washington' s Children and Youth

Advocacy Clinic ( Clinic) entered a notice of limited appearance as counsel for JA to move for

appointment of counsel.            JA' s GAL ( 1) objected to appointment of counsel for JA on grounds


that JA   was well served        by having     a   GAL; ( 2) expressed concerns about who had provided the


Clinic with JA' s information and was surprised to learn that someone had signed a release of

JA' s   school records   to the Clinic; ( 3)       mentioned that no one had notified him about JA' s wanting

an   attorney; ( 4)   stated he did not support reunification because throughout the dependency

action, JA' s parents had been noncompliant and had not made progress to correct their parental


deficiencies; and ( 5) noted that MB was unable to care for JA given her history of physical

abuse, neglect, and mental          health " concerns."           CP at 444.


          On March 14, the juvenile court held a hearing to consider JA' s motion. Appearing were

JA' s GAL; his social worker; an attorney on DSHS' s behalf; an attorney on MB' s behalf; and a
                               intern12
Clinic Rule 9 legal                       on   JA'   s    behalf,   accompanied         by   a   supervising attorney.        JA,


however,     was not present.         Concerned about JA' s absence, the juvenile court rescheduled the


hearing so JA could be present. A week later, on March 21, JA appeared in person and through




12 APR 9 grants a limited license to law students, law clerks, and recent law school graduates to
practice   law   under   the   supervision of a          lawyer   who   has   at   least three   years of   legal   experience.
No. 45134 -4 -II



the Clinic'    s   Rule 9 legal intern    and   supervising attorney.      MB appeared also with her attorney.

The juvenile court asked to speak to JA.

        The juvenile       court asked    JA why he    was   in   court, and   JA   responded, "   Because me and —


         I
we were — want an           attorney."     Verbatim Report        of   Proceedings ( VRP) ( Mar. 21, 2013) at 7.


The court asked JA additional questions about his request for an attorney:

        THE COURT: Okay. What does an attorney do?
         JA:]       Talks to the judge.
        THE COURT:            Okay. So,     what would —         if you had an attorney, what would the
        attorney tell me?
         JA:]Like, I want to go home to my mom.
        THE COURT: Okay. Is there anything else?
         JA:] No.
        THE COURT: Just that you want to go home with your mom?
         JA:] Yeah.
        THE COURT:            Okay. So, you just told me that' s what you want.
         JA:] Yeah.
        THE COURT:     So, why do you need an attorney to tell me that?
         JA:] Because I want an attorney.
        THE COURT: Okay. So, what difference does that make? If you                           tell me that' s

        what you want, why would you need an attorney to tell me that?
         JA:] Because I want one.
        THE COURT: Because you want one?
         JA:]       Yeah, and attorneys are cool.


VRP ( Mar. 21, 2013) at 7 -8.


        After the hearing, the juvenile court entered the following relevant findings of fact,

        10.         Throughout these [     dependency]       proceedings,      the mother has not been
        compliant and she         has    not made progress.         At one point, it was ordered that a
        petition      for termination be filed.      Meanwhile, there have been people looking out
        for the child' s best interests.


         11.At the March 21, 2013 hearing, the court requested to hear directly from [ JA].
        At thathearing, [ JA] was able to speak with the court directly. [ JA] stated that he
        wanted an attorney. [  JA] indicated that he understood what was going on but
        could not articulate what an attorney could do, other than that an attorney `talks to




                                                             8
No. 45134 - -II
           4




       the judge'          as   well    as   to [ JA],    and    could    tell the    court   that [ JA] ` want[ s] to go
       home to [ his]           mom.' [      JA] stated that it would be ` cool' to have an attorney.



       13.     At the March 21, 2013                hearing, [ JA] clearly expressed in court that he wants
       to    return    home to be            with   his   mother.         The GAL and the social worker have
       informed the             court of     this in the    past. [ JA] showed he is perfectly capable of
       talking    to the   directly
                                court               about   his wish to return home. [ JA] said ` My mom' s
       not even doing the classes.'

       14.     The court understands that [ JA] would like to go home with his mother but
       she is not capable of caring for him now. This does not mean that she will never
       be able to care for him.


       15. [    JA] also informed the court directly that he likes where he is currently living
        his foster home] and he feels safe there.


CP at 574 -75.


       The juvenile court also rendered the following pertinent conclusions of law:

       3.      The private interest at stake in this case is the interest that the child has in
       achieving permanency....                     Guardianship is in the child' s best interest. The court
       acknowledges that the child' s stated interest is in reunification, but the court finds
       that alternative is not available at this time and that given he is in a safe placement
       at this time with a caregiver who is willing to serve as his guardian, his private
       interests are not that great.


       4.    There are cases where counsel may be necessary, such as
                  a) where a child has viable alternatives and there 's a difference of
                  opinion between the child and the GAL or social worker,


                   c) Other special circumstances where an attorney should be appointed for
                  limited purposes.


        5.     The fact that guardianship is the permanent plan makes the privacy interest
        less compelling and impacts the analysis regarding appointment of counsel for
         JA].


        6.     The risk of error in this case is low given that the court' s team of social
        workers       is   committed and          the    court   has had lots        of experience with    the team.   In




                                                                      9
No. 45134 -4 -II



          addition,    there   are several      lawyers already      Finally, the GAL' s role is
                                                                       on   the   case.

          to tell the court, at every hearing, what the child's wishes are.

          7.     The countervailing government interest in this case is that there are limited
          resources     for   attorneys   for   children    in this country. Given the private interests at
          stake and the risk of error in this case, those limited financial resources should not
          be spent in this case.


CP   at   575 -76 (   emphasis added) ( some alterations               in   original).    The juvenile court denied JA' s


request for appointment of an attorney.

                                            C. Motion for Reconsideration


          Two weeks later, on April 2, Mora sent the juvenile court a letter stating her belief that

JA belonged with his mother, MB, and that


           f]or the last two months [ JAI s mother has taken the trouble to keep in touch with
          her son by telephone on a daily basis, makes sure she is aware of his needs and
          desires, has never relinquished her rights as his guardian, and in all ways behaves
          like    a concerned and engaged parent.               During      this time, [ JAY s   attitude and school
          grades have greatly improved.

CP   at   555.     Mora further     explained       that ( 1)   she did not wish to assume guardianship for JA

because     she   believed JA' s relationship        with   his   mother      dictated that he " be   with   her," and ( 2) she


 JA' s foster mother) had never considered adopting JA. CP at 555.

           On May 20, JA' s Clinic Rule 9 intern filed a CR 59( a) motion for reconsideration of the

juvenile court' s May 9 order denying JA appointment of legal counsel because there was newly

discovered        material evidence: (       1) JA' s foster mother' s letter, sent after the March 21 hearing,

stating that she did not wish to assume guardianship of JA and that she believed JA and his

mother should be reunified; and ( 2) JA' s newfound awareness, after the March 21 hearing, that

his father would soon be released from prison and wanted to be a part of JA' s life.




                                                                  10
No. 45134 -4 -II



         In support of his motion for reconsideration, JA declared that ( 1) he still wanted a lawyer,

 2) he did   not want     to   see   his father because his father    was not " safe   for [ JA]   at all, "13 ( 3) he ( JA)

wanted a     lawyer to tell the judge that his father           should not get   to   see   him   or   talk to him, ( 4) he


 JA)    wanted    to be   with   his   mother   because it helped him feel better           and she "   is safe, "14 ( 5) he

wanted a lawyer to help him see his mother as much as he could and to help him " someday live

with [ his] mom, "    15 and ( 6) he wanted a lawyer to help him explain why he wanted to stay with

his foster mother until he had a chance to stay with his mother, MB.

          On May 9, the juvenile court held a permanency planning hearing at which DSHS

recommended that JA remain in non -
                                  parental custody, that JA' s primary permanency plan be a

guardianship with an alternative of non -
                                        parental custody, and that the court not terminate

parental rights     given      JA' s desire to    maintain    familial ties.   MB' s attorney noted that MB had

visited CPS on five occasions for psychological evaluation, urinalysis, and parenting classes.

          JA' s GAL expressed concerns about ( 1) JA' s March 22 three -day juvenile hall detention

after   he had   a " meltdown, "       16 which the GAL believed was " uncalled for "17 because JA was not a

                                                       JA; ( 2) JA' s verbal abusiveness to Mora, who had called
                                        terrified718

criminal and      the detention "




13 CP at 556.

14
     CP at 556.


15 CP at 556.

16 VRP (May 9, 2013) at 25.

17 VRP (May 9, 2013) at 25.

18 VRP (May 9, 2013) at 26.


                                                              11
No. 45134 - -I1
          4



law   enforcement       because "      she   did       not get     the   support     from ...        BRS" " that' s supposed to have


services around        this home to     assist with [ JA' s]              behavior ";       and ( 3) the unavailability of JA' s BRS

foster home.       VRP ( May 9, 2013)                  at    25.   The GAL also expressed frustration because " they' re

not providing" him with information he requested about JA and JA' s detention incident report

and because DSHS and Catholic Community Services ( CCS) had failed to return his ( GAL) call

about the issue. VRP (May 9, 2013) at 27.

            When the juvenile court asked for further information about the detention, CCS said it


did   not   have   such     information but             could obtain           it for the   court.    The juvenile court noted they
                                                  19; "
were "   having    a   lot   of miscommunication "                         this is really      not                    the court was not



getting all the information it had requested from CPS; and the court hoped to get " a little better

responsiveness"        in obtaining information such as JA' s file review, visitation notes, and mental

health   notes.    VRP ( May 9, 2013)                   at   30.    JA told the juvenile court that ( 1) he wanted a new


social worker      because his latest              social worker " was              talking    about [   JA'   s]   mom,"   VRP ( May 9,

2013) at 35; and ( 2) in response to the court' s question, he had gone to detention between the


first motion hearing and the current hearing.
            The juvenile       court    ruled          that ( 1)    JA' s foster mother' s letter was newly discovered

material evidence not previously available to JA through reasonable diligence at the time of the

original    hearing    on    JA'   s motion       to   appoint counsel; (          2) JA' s father' s possible release from prison


and desire to reconnect with JA was also material evidence not previously available to JA

through      reasonable      diligence       at   the time         of    the    original    hearing; (   3) these two pieces of new




19 VRP (May 9, 2013) at 31.

2° VRP (May 9, 2013) at 31.

                                                                          12
No. 45134 -4 -II




material evidence required a re- weighing of the Mathews factors in considering JA' s motion for

appointment of counsel at public expense; (             4) the new evidence did not change the weight given


to JA' s private interests, given JA' s consistent previous statements that he wanted to return to his

mother; (   5)     the countervailing government interest continued to be that there are limited

resources    for    attorneys    for    children   in Pierce   County;   and (   6) after reconsidering the new


evidence and re- weighing the Mathews factors, the compelling nature of JA' s private interest and

the   risk of error remained unchanged.             Consequently, the juvenile court denied JA' s motion for

reconsideration.




                                                        D. Appeal


         JA sought discretionary review of the juvenile court' s May 9, 2013 order denying his

motion for appointment of counsel at public expense and the June 17, 2013 order denying JA' s

motion    for    reconsideration.       A   commissioner granted    JA' s   petition under   RAP 2. 3( b)( 2),   which




provides    for    discretionary    review when "[      t]he superior court has committed probable error and


the decision of the superior court substantially alters the status quo or substantially limits the

freedom     of a   party to   act[.]"   RAP 2. 3( b)( 2).   Our commissioner granted discretionary review of

 1) all three Mathews factors and the facts available to the juvenile court when it decided both


the   original     and   reconsideration       orders   denying   appointment     of   counsel;   and (   2) the state




                                                             13
No. 45134 -4 -II



                           21
constitutional    issue.        And because this case involves a dependent child, our commissioner


accelerated review.



                                                      ANALYSIS


       JA first contends that the juvenile court abused its discretion in twice denying his request

for appointment of counsel at his dependency proceeding. JA argues that the juvenile court erred

in applying the Mathews factors because it ( 1)                    undervalued his private interest, based on its


conclusion   that guardianship was no longer               an option    for him; ( 2) understated the risk of error


and value    of additional       or   substitute   safeguards      for him;    and (   3)   focused too heavily on the

public cost of appointment of counsel.             We assume, without deciding, that the juvenile court did

not abuse its discretion in denying JA' s original request for appointment of counsel.

       But we hold that the juvenile court abused its discretion in denying JA' s motion for

reconsideration because the new evidence JA presented ( 1) significantly altered the weighing of

the Mathews      factors, especially the first two —JA' s private interest and the risk of error, which


factors the juvenile court misapplied; and ( 2) caused these two factors to outweigh the third


factor —the State'   s   interest in any    resultant     fiscal   and administrative       burdens —such that JA was


entitled to counsel under RCW 13. 34. 100( 6)( f).


        At the    outset, we note       that the issue before        us — a   child' s right to appointed counsel in a


dependency       proceeding —is        one of first impression, expressly left open by our Washington


21
  Six amicus curiae briefs were filed in support of JA' s appeal, focusing primarily on the federal
due process issue, by ( 1) the American Civil Liberties Union of Washington, the Mockingbird
Society,   and   Legal Counsel for Youth            and   Children; ( 2)      Disability    Rights Washington; ( 3) the
Washington Defender Association                and   King County         Department         of   Public Defense; ( 4) the
Washington State Psychological Association; ( 5) the Juvenile Law Center,                             et.   al.;   and ( 6) the
Foster Parents Association of Washington State.




                                                              14
No. 45134 - -II
           4




Supreme Court when it considered the right to appointment of counsel for a child in a parental


termination proceeding two years ago:

                    We hold the due process right of children who are subjects of dependency
           or   termination          proceedings      to   counsel     is    not      universal.       The constitutional
           protections,        RCW         13. 34. 100( 6),   and    our court rules              give trial judges   the
           discretion to decide whether to appoint counsel to children who are subjects of
                                                                     FN131
           dependency          or   termination     proceedings.)




           FN13.    We recognize that this is an appeal of a termination order. Nothing in this
           opinion should be read to foreclose argument that a different analysis would be
           appropriate during the dependency stages.

In   re   Dependency      of M.S.R., 174 Wn.2d 1, 22            n.   13, 271 P. 3d 234 ( 2012) ( emphasis          added).



           We    note,    however, that "[          i] f it is not necessary to reach a constitutional question, it is
                                                                                     22
well established         policy that       we should    decline to do        so. "        State v. Speaks, 119 Wn.2d 204, 207,


829 P. 2d 1096 ( 1992).                   Thus, we decline to address JA' s and amici' s constitutional claims


because we can resolve this case by determining a non -constitutional question, namely, whether

the juvenile court abused its discretion in denying JA' s motion for reconsideration of the court' s

earlier    denial   of   his   request      for   appointed counsel under             RCW 13. 34. 100( 6), to which we apply


the Mathews factors.




22 See also JA' s appellate counsel' s oral argument agreement that we need not address the
constitutional due process argument for right to counsel if we hold that the juvenile court abused
its discretion in        failing     to   appoint counsel     for JA      under      the   statute.   And although DSHS argued
that      we   should uphold          the constitutionality     of    RCW 13. 34. 100( 6), JA does not challenge the

constitutionality of this statute.



                                                                     15
No. 45134 - -II
          4



                                                   I. RCW 13. 34. 100( 6)


       RCW 13. 34. 100( 6) 23       provides, in pertinent part:

          a) Pursuant to this subsection, the department or supervising agency and the
       child' s guardian ad litem shall each notify a child of his or her right to request
       counsel and shall ask            the   child whether     he    or she wishes      to have     counsel.   The

       department or supervising agency and the child' s guardian ad litem shall notify
       the child and make this inquiry immediately after:

          ii) Assignment of a case involving a child age twelve or older[.]

        d) The department or supervising agency shall note in the child' s individual
       service and safety plan, and the guardian ad litem shall note in his or her report to
       the court, that the child was notified of the right to request counsel and indicate
       the child' s position regarding appointment of counsel.


          e) At the first regularly scheduled hearing after:

          ii) The date that a dependency petition is filed pursuant to this chapter on a child
       age twelve or older;


       the court shall inquire whether the child has received notice of his or her right to
       request legal counsel from the department or supervising agency and the child' s
       guardian ad litem. The court shall make an additional inquiry at the first regularly
       scheduled hearing after the child' s fifteenth birthday. .. .

          f) If the   child requests    legal   counsel and      is   age   twelve   or older, ...   the court may
          appoint an attorney to represent the child's position.

 Emphasis added).


       Under this statute, our legislature has vested the juvenile court with discretion to appoint

                                                                                        24
counsel    for   a child   over   the   age   of   12 in   a   dependency      petition.       The legislature does not,




23 Although not pertinent to our decision here, we note that effective July 1, 2014, the legislature
has amended this statute to expand a child' s right to counsel in dependency and termination
cases. H.B. REP. on Engrossed Second Substitute S. B. 6126, at 4 -5, 63rd Leg., Reg. Sess.
 Wash. 2014).




                                                               16
No. 45134 -4 -II




however, set forth specific factors for the juvenile court to apply in exercising its discretion; nor

does the legislature note a source of funds to cover the cost of appointing counsel under this

statute.



           Nevertheless,        the following legislative note accompanying its creating the child' s

potential right to counsel in dependency and parental termination proceedings states:

            1) The legislature recognizes that inconsistent practices in and among counties in
           Washington have resulted in few children being notified of their right to request
           legal counsel in their dependency and termination proceedings under RCW
           13. 34. 100.


            2) The legislature recognizes that when children are provided attorneys in their
           dependency and termination proceedings, it is imperative to provide them with
           well- trained advocates so that their legal rights around health, safety, and well-
           being are protected. Attorneys, who have different skills and obligations than
           guardians ad litem and court- appointed special advocates, especially in forming
           a confidential and privileged relationship with a child, should be trained in
           meaningful and effective child advocacy, the child welfare system and services
           available to a child client, child and adolescent brain development, child and
           adolescent mental health, and the distinct legal rights of dependent youth, among
           other   things.     Well -
                                    trained attorneys can provide legal counsel to a child on issues
           such as placement options, visitation rights, educational rights, access to services
           while   in   care    and services   available    to   a   child upon
                                                                                  aging   out   of   care.   Well -
           trained attorneys fora child can:

            a) Ensure the child's voice is considered in judicial proceedings;


            b) Engage the child in his or her legal proceedings;

            c) Explain to the child his or her legal rights;


            d) Assist     the    child,   through   the   attorney' s counseling     role,      to   consider   the

           consequences of different decisions; and

            e) Encourage accountability, when appropriate, among the different systems that
           provide services to children.




24
  Interestingly, the legislature requires the court to make annual inquiries about the child' s
desire for appointed counsel, especially after the age of 15. RCW 13. 34. 100( 6)( e).

                                                             17
No. 45134 - -II
          4




LAWS     OF   2010,   ch.   180 §    1 ( legislative findings accompanying amendment to RCW 13. 34. 100)

emphasis added).



                                                II.. STANDARD OF REVIEW


         Under RCW 13. 34. 100, a court' s decision to appoint counsel for children in dependency

proceedings      is   discretionary,     and    we   review    such   a     decision for   abuse   of   discretion.   In re


Welfare of JH., 75 Wn.             App. 887,    894, 880 P. 2d 1030 ( 1994), review denied, 126 Wn.2d 1024


 1995) ( " Orders in        dependency    cases are reviewed          for   abuse of   discretion. "). A superior court


abuses    its discretion if it      exercises   discretion    without     tenable   grounds or reasons.      State ex. rel.


Carroll   v.   Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971).                   Although RCW 13. 34. 100 does not


specify criteria for determining whether to appoint counsel, our Supreme Court recently held that

the decision to appoint counsel for a child in a termination of parental rights or a dependency

proceeding      should      be   examined on a case -  by -
                                                          case       basis. M. R., 174 Wn.2d
                                                                             S.                     at   22. We evaluate


termination     counsel requests        using the factors      set   forth in Mathews.       MS.R, 174 Wn. 2d at 22


 citing Mathews).25
          The M.S.R. court, however, later amended its opinion and expressly refrained from ruling

that Mathews applied to a juvenile' s dependency counsel request:




25 Our Supreme Court further held that appointment of counsel for a child in a parental
termination proceeding is mandatory if, after balancing the Mathews factors, the statute and due
process so require. MS.R, 174 Wn. 2d at 21 - 22. As we have previously noted, in the instant
dependency context, we resolve the case based on the statute and the Mathews factors alone,
without undertaking a constitutional due process analysis about whether appointment of counsel
here was mandatory as in M.S.R..



                                                               18
No. 45134 -
          441




           We recognize that this is an appeal of a termination order. Nothing in this opinion
           should be read to foreclose argument that a different analysis would be
           appropriate during the depende[ n] cy stages.

M. R., 174 Wn.2d at 22 n. 13.
 S.


           JA' s case involves a dependency. Nevertheless, the juvenile court here cited M.S.R. and

applied    the Mathews factors in             determining   whether to appoint counsel            for JA. And the parties


here do not argue that we should apply a different analysis in the dependency context.

Therefore, we also apply the Mathews factors to the unique facts of this case to determine

whether the juvenile court abused its discretion in denying JA' s motion to reconsider his request

for appointment of counsel under RCW 13. 34. 100( 6).


                                                  III. MATHEWS FACTORS


           In   deciding      whether   to   appoint counsel,   Mathews       requires   weighing three factors: ( 1) the


private    interest    at   stake; (   2) the risk of erroneous deprivation by the procedures used and the

probable        value,      if any,     of   additional    or   substitute     procedural      safeguards;      and (   3)   the



government' s interest, including the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.                      M. R.,
                                                                      S.       174 Wn.2d at 14 ( quoting Lassiter v.

Dep' t   of Soc. Serv., 452 U. S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 ( 1981) (                         citing Mathews,

424 U. S.       at   335)).     We address each factor in turn, keeping in mind our Supreme Court' s

instructions to       consider    the   relevant circumstances on a case         by    case   basis. M. R., 174 Wn.2d at
                                                                                                      S.


21 - 22.


                                             A. Child' s Private Interest at Stake


           The first Mathews factor             requires   weighing the      private   interest   at stake.    Mathews, 424


U. S. at 335. As our Supreme Court has noted:




                                                                19
No. 45134 -4 -II



          In a dependency or termination proceeding, the parent is at risk of losing the
          parent -child relationship, but the child is at risk of not only losing a parent but
                                      with                         grandparents,         aunts,    uncles,       and    other
          also     relationships               sibling[( s)],
          extended family.

M. R., 174 Wn.2d at 15.
 S.


          JA   argues   that the juvenile       court erred        in   finding    that JA'   s private   interest     was "`   not that


great '      in both the motion for appointment of counsel and in the subsequent motion for


reconsideration.        Br.   of   Appellant    at    18 ( quoting CP         at   541 ( Conclusion   of       Law ( CL) 3)).      JA' s


argument fails as to the juvenile court' s denial of his motion to appoint public counsel, however,


we reverse the court' s later ruling that the new evidence presented in support of JA' s motion for

reconsideration did not change the weight given to JA' s private interests.


          Under RCW 13. 34. 030( 6),           a "[   d] ependent child" means any child who:

             a) Has been abandoned;
             b) Is abused or neglected ...;
             c) Has no parent, guardian, or custodian capable of adequately caring for the
          child,    such that the child is in circumstances which constitute a danger of
          substantial damage to the child' s psychological or physical development.


Dependencies        serve "   the important function of allowing state intervention in order to remedy

family    problems and provide needed services."                        In re Dependency of Schermer, 161 Wn.2d 927,

942, 169 P. 3d 452 ( 2007).


             Recognizing      that the   family        unit   is   a     fundamental      resource        of   American life, the


legislature has declared that the family unit should remain intact unless a child' s right to

conditions of       basic   nurture,   health,   or    safety is jeopardized.           RCW 13. 34. 020.           In a dependency

proceeding, therefore, a child' s health and safety are of paramount concern and a child has the

right   to   a safe, stable,       and permanent       home     and      a   speedy   resolution of       the proceeding.         RCW




                                                                   20
No. 45134 -4 -II



13. 34. 020.        And in light of the continuous nature of a dependency proceeding, a child' s

fundamental liberty interests are at stake, not only in the initial hearing, but also in the series of

hearings and review proceedings that occur as part of a dependency proceeding once a child

comes     into    state    custody.    Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1360 ( N.D.

Ga. 2005).


          A foster child also has a substantive due process right " to be free from unreasonable risk


of   harm ...     and a right    to   reasonable    safety."    Braam v. State, 150 Wn.2d 689, 699, 81 P. 3d 851


 2003).       A   child    faces the loss     of physical     liberty      if the   child   is "   physically removed from the

parent' s home" and may face the " daunting challenge" of being placed in the custody of the State

as a   foster     child,   forced to    move    from    one   foster home to          another.          M. R., 174 Wn.2d at 16.
                                                                                                          S.


Foster home placement may result in multiple changes of homes, schools, and friends over which

the   child   has   no control.       M. R., 174 Wn.2d
                                       S.                        at   16.     Such movement from one foster home to


another    may      cause children significant          harm. Braam, 150 Wn.2d                     at   694; RCW 74. 13. 310. In a


dependency proceeding, a child also faces the risk of being returned by the State to an abusive or

neglectful      home. M. R., 174 Wn.2d at 17.
                       S.


          A dependency proceeding also affects a child' s fundamental liberty interest in " having

the    affection and care of          his   parents."   Moore v. Burdman, 84 Wn.2d 408, 411, 526 P. 2d 893


 1974).       A child has a strong liberty interest in the parent -child relationship that is equal to or

greater   than that of       parents.        S.
                                            M. R., 174 Wn. 2d         at   17 -18. And, a child has the right to freedom


of personal choice in matters of family life, a fundamental liberty interest protected by the due




                                                                 21
No. 45134 -4 -II


                                                            26
process clause of       the Fourteenth Arendrent.                 In   re
                                                                            Dependency       of T.R.,   108 Wn. App. 149,

154, 29 P. 3d 1275 ( 2001).           Further, in a dependency proceeding, a child is at risk of not only

losing    a parent     but   also relationships   with     other     family    members.       M. R., 174 Wn.2d at 15
                                                                                               S.


 citing In re Custody ofShields, 157 Wn.2d 126, 151 -52, 136 P. 3d 117 ( 2006)).

          Although children have no constitutional right to State intervention to protect them from


their own parents, once the State does intervene, as in a dependency proceeding, such rights

attach.    M.
            S.R.,      174 Wn.2d at 17 ( citing DeShaney v. Winnebago County Dep' t of Soc. Servs.,

489 U. S. 189, 201,          109 S. Ct. 998, 103 L. Ed. 2d 249 ( 1989)).                    Thus, a child' s fundamental


liberty interests are at stake, not only in the initial deprivation hearing, but also in the series of

hearings and review proceedings that occur once a child comes into state custody. Kenny, 356 F.

Supp.     2d   at   1360.    These rights by their very nature are substantial private rights of a child,

which a dependency proceeding puts at risk, even while the State endeavors to protect those

same interests as best it can under the particular circumstances.


          Before denying JA' s initial motion for appointment of counsel on March 21, 2013, the

juvenile court spoke with JA directly and asked why he was in court; JA responded that he

wanted     an   attorney     and   that he   wanted   to   go    home       with   his   mother.   Understanding that JA

wanted to go home with his mother, the court found, however, that she was not capable of caring




26
     U.S. CONST. amend. XIV.




                                                                22
No. 45134 -4 -II



                                                                           27
for him      and      that guardianship was in       his best interest.         Noting that JA could adequately express

his desires on his own, the juvenile court denied his request for appointed counsel, reasoning that

JA' s private interests ( in permanency and in maintaining a relationship with MB) were " not that
       28
great "      because ( 1)     reunification with        his   mother was not available at                 the time; ( 2) JA was in a



safe placement with a caregiver who was willing to serve as his guardian; and ( 3) JA felt safe at

his foster home and liked where he lived.


          A few weeks later, however, JA discovered new evidence that undercut critical facts on

which the juvenile court had based its denial of appointment of counsel and that called into

question whether JA' s private interests remained protected without appointment of counsel:


JA' s foster mother wrote a letter to the court stating she did not " wish to assume guardianship"

and   that      she   believed JA    should   be    with   his   mother.    CP    at   555.     JA learned that his father was


being released from prison and wanted to be a part of his life after release, which greatly

concerned        JA because, according to JA, his father " is               not safe     for   me at all."      CP at 556. And the


juvenile court learned that from the day after its denial of JA' s request for counsel, March 22,

through March 25, JA had              spent      three " terrif[ying]"     days in juvenile detention because he had a

 meltdown"            in his foster home. VRP ( May 9, 2013)                at   26.    According to the GAL, JA' s foster

27
     The juvenile        court noted,   for   example: (       1) the numerous times that MB had not been present
for JA'  dependency and permanency
            s                               hearings; ( 2) MB' s noncompliance with her court
                                                         plan

order and failure to show progress toward becoming able to serve effectively as JA' s parent, as
demonstrated at the September 13, 2011 review hearing, the February 13, 2012 permanency
hearing, and the July and December 2012 dependency reviews; and ( 3) that at the March 21,
2013 hearing, when the court asked JA who the GAL was, JA' s face had " lit up, "' expressing
happiness,        and    that had   when   the   court asked     JA   who   Rion       was,    JA'   s   face had   again '   lit up "'   as

JA    explained        that Rion Tisino    was    his   social worker ( his      fourth). CP at 575.


28 CP at 575.



                                                                   23
No. 45134 -4 -II



home    was " supposed         to have    services around        this home to        assist with [   his] behavior," and JA


 should not    be spending any time in             a   facility that   houses   criminals."      VRP (May 9, 2013) at 25.

         These      changes     in   circumstances affected        JA'   s private   interests in the   following   ways: (   1)


The juvenile        court' s   initial determination that JA           was "    in a safe placement at this time with a

                                                                    29
caregiver who        is willing to      serve as   his    guardian "   was no        longer true; ( 2) the safeguards that


the juvenile court believed were in place did not protect JA from unreasonable risks of harm,


such as his sudden, inappropriate, terrifying, and potentially avoidable confinement in juvenile

detention; and ( 3) JA' s right to reasonable safety was also newly compromised by the imminent

release from prison of his father, who had a history of abusing JA and wanted to reinstate a

relationship      with   him.        This new evidence demonstrated that JA' s interests were not being

protected in the manner the juvenile court had assumed when it had denied his request for


counsel two weeks earlier.


         Contrary to the juvenile court' s ruling, this new evidence of changed circumstances also

changed the nature and weight that it should have given JA' s private interests when it considered


his   motion      for   reconsideration.       See Braam,          150 Wn.2d         at   699.     And this new evidence


undermined the juvenile court' s original order, which had been predicated on JA' s private


interest in permanency and on the court' s understanding that JA' s foster parent was willing to

serve    as   his    guardian.        Thus,   the record fails to support the juvenile court' s ruling on

reconsideration that this new evidence did not change the weight to be given to JA' s private

interests.




29
     CP at 575.




                                                                 24
No. 45134 - -
          4 II



                                                          B. Risk of Error


         The second Mathews factor is the risk of erroneous deprivation of the child' s rights under


procedures currently in place and the value of additional procedures sought, which here, was

appointment of counsel           for JA. M. R., 174 Wn.2d at 18. Both the United States Supreme Court
                                          S.


and our Washington State Supreme Court have said that this factor


         depends      on   the legal         and   factual complexity      f the situation and on the parties'
         ability to   present        theirBy extension, whether there is a constitutionally
                                             cases. ...

         significant risk of an erroneous deprivation of rights may also turn on whether
         there is someone in the case who is able to represent the child's interests or whose
         interests align with the child' s.


M.S.R., 174 Wn.2d          at   18 ( internal      citations omitted) (   citing Lassiter, 452 U.S. at 30 and Bellevue

Sch. Dist.   v.   E.S., 171 Wn.2d 695, 704 - 05, 709 - 10, 257 P. 3d 570 ( 2011) ( little risk of erroneous


deprivation of child' s rights by absence of counsel at initial truancy hearing)).

         JA argues that in weighing this second Mathews factor, the juvenile court understated the

risk of error and failed to take into account the significant change in his permanent placement


options,   thus misapplying this              factor.     Again, we agree with JA that the juvenile court erred in


ruling that the new evidence JA presented in support of his motion for reconsideration did not

change     the   risk of,error       in the    dependency       proceedings.   As the M.S.R. court held, the juvenile


court makes the decision to appoint counsel for a child on a case -by -
                                                                      case basis using the

Mathews test.        M. R., 174 Wn.2d
                       S.                            at   22.   The issue here therefore is whether the trial court' s


denial of JA' s request for counsel put JA at risk of erroneous deprivation and if there is value

added    in appointing          an    attorney for JA in his            dependency   proceedings.   Here, this second


Mathews factor echoes many of the considerations relevant to the first factor that we have just

explained in the preceding section of this analysis.



                                                                   25
No. 45134 - -II
          4




         Because a . case -by -case analysis allows wide room for judicial discretion, subjective

determinations        can   magnify the           risk of erroneous     fact- findings.    Kenny, 356 F. Supp. 2d at 1361

 quoting      Santosky      v.   Kramer, 455 U.S. 745, 762, 102 S. Ct. 1388, 71 L. Ed. 2d 599 ( 1982)).


This risk is especially heightened in dependency proceedings, which have no set end date, are

constantly changing personnel, and involve numerous diverse issues affecting a child' s life on an

ongoing basis.             Kenny,      356 F.       Supp.    2d 1353      at   1360 -61.    Given the ongoing nature of

dependency proceedings, and the multiple hearings and reviews to which a child is subject, there

is a heightened risk of error; and, there is value added in appointing a child an attorney in a

dependency          proceeding to          represent   the   child' s   best interests.    See Kenny, 356 F. Supp. 2d at

1361.


         For       example,      judges, GALs,          and    court    appointed    special     advocates (   CASAs) do not


always    adequately        mitigate       the risk of      such errors.       Kenny,   356 F.   Supp.   2d   at   1361.   Judges,


unlike    child      advocate         attorneys,     cannot conduct their own investigations and are entirely

dependent on others to provide them information about the child' s circumstances. Kenny, 356 F.

Supp.    2d   at   1361.    Nor can GALs and CASAs always adequately mitigate the risk of such errors.

Kenny,    356 F.      Supp.      2d   at   1361.    For example, although a GAL represents the best interests of


the   child   for   whom     he   or she     is   appointed, such representation of         the   child' s   best interests " may
No. 45134 - -
          4 II



                                                                                                                                       3°
be inconsistent        with   the   wishes of      the   person whose         interest the        guardian ad     litem   represents. "




GALR 2a.


         GALs       and     CASAs       are   different from        attorneys       in their   representations of a child.         In re


Dependency        of M. R., 174 Wn.2d
                      S.                            at   21 ( "[ w] e recognize the different, important, and valuable


roles   of   GALs, CASAs,               and counsel to children in dependency and parental termination

proceedings "). Although a GAL can represent a child in a dependency proceeding, GALs and


CASAs     are not "     trained to,     nor    is it their   role   to,   protect   the   legal   rights of   the child."    Id. Unlike


GALs or CASAs, lawyers maintain confidential communications, may provide legal advice on

potentially    complex and vital              issues to the    child, and are         bound       by   ethical   duties. Id. Lawyers


can assist the child and the court by explaining to the child the proceedings and the child' s rights,

and by articulating the child' s views to the court, especially important for an older child ( as
                                                                             31
compared     to   an   infant)    or   to   a child with a    disability.         Id. at 21 -22.


         Here, in denying JA' s initial request for counsel, the juvenile court determined that the

risk of error of not appointing an attorney was low because JA had demonstrated his ability to

speak directly to the court, appeared to have a team of social workers working with him, and had

a GAL whose role was to advise the court, at every hearing, of JA' s wishes. Recognizing that he


30 Washington' s Guardian ad Litem Rules, GALR 2( a) provides:
         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.

31
     See also brief of amicus curiae, Disability Rights Washington, at 17 -18, noting that when a
child has a disability, the risk of error is higher without representation by counsel.



                                                                      27
No. 45134 - -II
          4



was not an        attorney but              declaring       that he     was "   looking    at what   is in [ JA]'    s   best interest," the


GAL      nevertheless (         1)       consistently opposed JA' s wish to be reunited with his mother from the

first   hearing    on; (   2)   opposed            JA'   s request      for   appointment of counsel; (       3) opposed reunification


because JA' s parents had been incompliant throughout the dependency action, they were not

 making      progress,"          and MB was unable to care for JA given her history of physical abuse,

neglect,     and    mental               health      concerns      of   bi- polar, depression,       and    anxiety;      and (   4)   instead,


recommended a permanent plan of                             Title 13 "    Guardianship ".     CP at 444.


           But, as we previously explained, circumstances changed significantly after the juvenile

court' s original denial of JA' s request for counsel, bringing into question whether the risk of

error was     low in JA'             s   dependency         proceedings, as          the juvenile   court   had previously        ruled.   For


example, during the May 9 permanency planning review hearing, JA' s GAL reported that JA had

spent three nights in juvenile detention because he had a " meltdown" and because he had been


verbally abusive to Mora, leaving her with " no choice but to call law enforcement because she

did     not get   the   support           from her       private
                                                                   agency."         VRP ( May 9, 2013)       at   25. As the GAL noted,


JA' s BRS foster home                      was "     supposed to have services around this home to assist with [ JA]' s


behavior." VRP ( May 9, 2013) at 25.

           Furthermore, JA'                s   three -day juvenile detention " bother[ ed]" his GAL because


            JA]' s not a criminal. And it just, it just bothers me that, you know, if CCS tells a
           foster parent that they' re not available and they' re going to be there in two hours,
           then they should have picked [ JA] up on the 22nd from detention and, you know,
           within       two hours,             and   then   address     his, his individual    needs.       But no, they waited
           until   the 25th.              And they didn' t even release him to CCS; they released him back
           to his foster         parent.          And, you know, that' s concerning because he was terrified.
            JA] told me he didn' t like detention.


VRP ( May 9, 2013) at 25 -26.



                                                                               28
No. 45134 -4 -II



           In addition, there was an unresolved breakdown in communication and a lack of


information provided to JA' s GAL, who asked " the court to maybe instruct [ DSHS] as to why

they' re   not   providing the State          nor [     the GAL] the information ...            requested several times in


meetings."       VRP ( May 9, 2013)               at   27.   When the juvenile court asked for further information


about JA' s detention, the CCS service director said he did not have such information but could


get   it   for    the   court.      Even          the    juvenile    court     noted   that (   1)   there   was "   a   lot   of


miscommunication, "32 ( 2) the court was not getting all the information the court requested from

CPS, and ( 3) it hoped for " a little better responsiveness" in obtaining information such as JA' s

file review, visitation notes, and mental health notes. VRP ( May 9, 2013) at 30.

           These communication breakdowns, especially those concerning JA' s detention, caused

harm to JA:        The detention deprived JA of his liberty for a longer period than necessary and

appeared     to have    caused    him       emotional        harm. JA' s GAL believed that this detention " terrified"


JA.   VRP (      May 9,     2013)   at      26.    This incident demonstrates the compelling risk of error that

existed    at    the time    of   JA'   s   reconsideration
                                                                    hearing.     Despite his existing " team of social


workers, "33 the GAL, and the " several lawyers already on the case, "34 which the juvenile court

initially believed would protect JA from a risk of error, it was apparent by the time of the

reconsideration hearing that this team had failed to protect JA from inappropriate detention,




   VRP ( May 9, 2013) at 31.

33 CP at 575 ( CL 6).

34 CP at 575 ( CL 6).


                                                                    29
No. 45134 -4 -II



                                                                                 35
especially its three -day duration      following   his initial incarceration.        Thus, the record does not


support the juvenile court' s ruling that the risk of error to JA remained unchanged after the first

motion       hearing. And we hold that the juvenile court erred in refusing on this basis to appoint

counsel for JA under the statute.


                                           C. Government Interest


             JA argues that the juvenile court also misapplied the third Mathews factor when it


incorrectly found that the State has a greater interest in avoiding the cost of appointing counsel

for him than in protecting his interests. DSHS counters that the State' s interest does not weigh in


favor of appointment of counsel because it increases costs to counties and creates an

administrative       burden for implementation.      Under the circumstances of this case, we disagree


with DSHS and agree with JA.


             The third Mathews factor requires a court to weigh the State' s interest in the proceeding,

including fiscal and administrative burdens, against the State' s interests in ensuring that a child' s

safety                being
             and well -       are protected.   Kenny, 356 F. Supp. 2d at 1361; see also Mathews, 424

U. S.   at   335; M. R.,
                   S.      174 Wn.2d at 14. The State " has a compelling interest in both the welfare of

the child and in `an accurate and just decision' in the dependency and termination proceedings."

M. R., 174 Wn.2d
  S.                       at   18 ( quoting Lassiter, 452 U. S.   at   27)).    Under the Mathews factors,


financial cost alone is not controlling in determining whether due process requires a particular

procedural safeguard prior to some administrative decision; moreover, the cost to society may

outweigh the benefit of an additional safeguard to the individual affected by the administrative



35
     In contrast, appointed counsel for JA could have resolved the ongoing communication
breakdowns and served as a resource for JA to ameliorate detention.


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                                                    36
action.   Mathews, 424 U. S.            at   348.        RCW 13. 34. 100( 6) does not specify criteria for weighing

the expenditure of public funds for appointed counsel for a child in a dependency proceeding;

thus, the Mathews factors are helpful in weighing the relative costs and benefits under our

legislature' s statutory provision for counsel in dependency proceedings, such as the one here.

          We further note that JuCR 9. 2( c)( 1) 37 ( 1) requires appointment of counsel on the request

of any party, or the court' s own initiative, if the child does not have an appointed GAL or CASA,

and ( 2) even allows appointment of counsel for a child for whom the court has already appointed

a guardian ad         litem.   We cite this rule, not because it requires appointment of counsel for JA


here, but rather as another example in which our State recognizes the importance of appointment

                                                              38
of counsel   for   children     in   certain situations.




36 "
   Significantly, the cost of protecting those whom the preliminary administrative process has
identified as likely to be found undeserving may in the end come out of the pockets of the
deserving since resources available for any particular program of social welfare are not
unlimited."     Mathews, 424 U. S. at 348.


37 JuCr 9. 2( c)( 1) provides:
        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.


38 See also the Washington Supreme Court' s recitation of JuCR 9.2( c)( 1) in noting that whether
existing procedures are significant and whether an additional lawyer for the child in parental
termination proceedings              would     reduce      the likelihood of       an   erroneous   decision " is subject to
debate    and   has   not   been   established       here."   M. R., 174 Wn.2d at 19.
                                                               S.




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         In denying JA' s motion to reconsider appointment of counsel, the juvenile court ruled

that JA' s private interest and risk of error remained unchanged from the circumstances it had

considered two weeks earlier when it denied JA' s original request for appointment of counsel.


As we have similarly explained in the preceding sections of this analysis addressing the other

two    Mathews        factors,    the record does not support the juvenile court' s ruling that the

countervailing government interest outweighed protection of JA' s interest by appointment of

counsel   under       the   particular       circumstances      here, despite the court' s recognition of limited


resources for attorneys for children in this county.

         As we have previously noted, after the juvenile court' s denial of JA' s request for

appointment of counsel,           JA' s   private   interests   and   the   risk of error   markedly   changed: (   1) Mora


was no longer willing to be his guardian, as the court had previously believed, and instead urged

the   court   to   place   JA   with   his   mother; (   2) JA' s father, who had been abusive to JA in the past,


was soon      to be   released    from    prison and wanted       to   reestablish contact with    JA; ( 3) JA' s team of


social   workers       had significantly         miscommunicated            information,     leading to JA' s three -day

juvenile detention; and ( 4)              according to the GAL, JA had been terrified and had suffered

emotional      harm    while    in detention. We hold that in light of these circumstances, the interest in


protecting JA far outweighed any administrative or fiscal burden that appointment of counsel for

JA might have entailed. See Kenny, 356 F. Supp. 2d at 1361.




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          4




        Accordingly, we reverse the juvenile court' s denial of JA' s motion for reconsideration,

and we remand for appointment of counsel for JA for his dependency hearing.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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