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Judicial Discretion is Advised: The Lack of Discretionary Appointments of Counsel for Children in Washington State Dependency Proceedings

Abstract: State agencies initiate dependency proceedings when a child is alleged, often due to parental neglect or abuse, to be a dependent of the state. The state must intervene “[w]hen parents do not comply with [Child Protective Services] requirements, or when the state believes the child is at too great a risk to remain at home even if parents were to comply with services.” Dependency proceedings usually take place in juvenile courts and involve the local state agency, the parents, and the child. After the government files a petition alleging circumstances of neglect or abuse, “[t]he court issues temporary orders regarding custody, parental and sibling visits, and services intended to rehabilitate the parents and address the children’s medical, educational, and emotional needs.” Then, the court conducts a hearing to assess the state’s factual allegations. “Depending on the parent’s compliance with the service plan written by the agency and ordered by the court,” the child may return home. However, in some cases the state will also initiate termination proceedings “to permanently terminate the parent’s parental rights . . . and enable the child to be adopted by a new family.”

In Washington State, the statutes, case law, court rules, and local practices that govern dependency proceedings do not protect all participants equally—the state and parents are guaranteed the right to an attorney, but not all children are statutorily guaranteed that right. This essay provides a general and brief overview of dependency proceedings and emphasizes the disparity in the right of representation afforded to parents and children appearing in these proceedings. In addition, this paper details a study that observed dependency proceedings across Washington State. The study investigated whether trial courts discretionarily appointed counsel to children on a case-by-case basis pursuant to guidance to do so by the Washington State Supreme Court. It found that, even though trial judges possessed such discretionary power, it was rarely used, and most children were not represented by attorneys. Further, researchers observed that the vast majority of children who were represented by attorneys were guaranteed that right under existing Washington State statutes or afforded it through local county practices.

In 2021, the Washington State legislature passed House Bill 1219, which expands and statutorily guarantees attorney representation to children in dependency proceedings who are eight years old or older. This new statute does not grant attorney representation to all children, like statutes in other states already provide for, but it paves a path in that direction.


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