IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matterofthe Dependency of 

### ) No. 78985-6-I E.M. (D.O.B.: 07/1 0/1 5), 

### ) DIVISION ONE

A Minor Child. 

### )

) JULIA MORGAN BIRYUKOVA, 

### ) PUBLISHED OPINION

Appellant, 

### )

v. 

### ) STATE OFWASHINGTON, 

### ) DEPARTMENT OF CHILD, YOUTH, 

### ) AND FAMILIES, 

### )

Respondent. 

### ) FILED: February 24, 2020 MANN, A.C.J. —We granted discretionary review in this dependency action to determinewhetherafamily membercan retain counsel fora dependent child, without seeking appointment bythe trial court. Julia Morgan, E.M.’s mother, appeals the trial court’s orderstriking the notice ofappearance ofan attorney retained by E.M.’s maternal grandmother. Morgan contends thatthe trial court erred in concluding that RCW 13.34.100(7) applies to privately retained attorneys. We disagree and affirm.No. 78985-6-1/2

Morgan has three children; heryoungest, E.M. is the subject ofthis dependency. Morgan’s othertwo children from a previous relationship are M.M. and S.M. M.M. is in the care of herfatherand lives in Florida. Morgan does not have contactwith MM. In November2011, S.M. disappeared. Morgan’s car ran out ofgas so she and M.M. walked to a gas station, leaving two-year-old SM. in the car. When Morgan returned to the car, SM. was gone. Law enforcement confirmed that Morgan’s car had not run out ofgas butwere unable to locate SM. To this day, S.M. has never been found. Criminal charges have not been filed, butthe case remains open and ongoing. When EM. was born July2015, the hospital contacted Child Protective Services (CPS) expressing concerns about Morgan’s mental health. Morgan has been diagnosed with obsessive compulsive disorder (OCD). EM’s fatherwas incarcerated when E.M. was born, has a significant criminal history including domesticviolence and violations of no-contactorders, and a history ofsubstance abuse. The Departmentfiled a dependency petition for EM. shortly after he was born. Morgan agreed to the dependency and the court placed E.M. in the care of his maternal grandmother, Nadia Biryukova. The dependency orderallowed Morgan to live in Biryukova’s home with EM., but required supervision of Morgan’s contactwith EM. As time went on, the court relaxed Morgan’s supervision requirements. In April 2017, Biryukova reported to the Departmentthat Morgan took E.M. out of her home around 8:30 p.m., bathes E.M. late at night, and that she was concerned for E.M.’s wellbeing and would lose anothergrandchild. The Departmentfiled a motion to place EM. in fostercare. The trial court ordered that Morgan move out of Biryukova’s -2-No. 78985-6-1/3

home, ratherthan placing E.M. in fostercare. Morgan sought discretionary review of the trial court order, butthis court denied her request. In addition, the Department sought new psychological evaluations to address S.M.’s disappearance and Morgan’s trauma associated with not having S.M. or M.M. in her life. Morgan refused to discuss S.M.’s disappearance atthe recommendation of hercriminal attorney. Morgan began residing with herfriend and mentorJames Kelly. Kelly actively participated in E.M.’s life as a visitation monitorfor Morgan. In May2018, Morgan moved for a change of placementfrom Biryukovato “anothersuitable person,” naming Kelly as the proposed placement. Biryukova supported the placement. E.M.’s father filed a competing motion to change placement, contending that E.M. should be placed in a licensed foster home because itwas a more neutral environmentthatwould support his reunification with E.M. The Department opposed placementwith Kelly and deferred to the court on the father’s placement suggestion. A King County Court Commissioner heard argument on Morgan’s motion to change placement on June 1, 2018. The Commissionergranted Morgan’s motion with certain conditions and denied the father’s motion, concluding thatfostercare was not in E.M.’s best interest. E.M.’s fatherfiled a motion to revise the Commissioner’s order, which the Superior Court granted. The court cited concerns for E.M.’s safety and indicated that placement in foster care was in EM’s best interest. The Department removed E.M. from Kelly’s home and placed him in foster care, where he has remained forthe past year.

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Five days after E.M. was placed in foster care, attorneyAimee Sutton1 filed a notice ofappearance as counsel for E.M. Biryukova retained Sutton for EM. and paid a deposit into a trust account on E.M.’s behalf. On July 18, 2018, Sutton contacted the Department’s counsel, MaryAnn Comiskey, to get E.M.’s contact information. Comiskey indicated that she needed “a few days to determine whether [she was] going to oppose this ‘representation’ or not.” Atthe time, the Department did not knowwho had retained Sutton on E.M.’s behalf. On July 19, 2018, a court appointed special advocate (CASA), Emma Bergin, appeared in the case.2 Sutton attempted contact with the Department again on July 23, 2018. Sutton filed a motion to reconsider E.M.’s placement in fostercare on July23, 2018, without meeting E.M. because “the rightto family integrity is a legal right” and Sutton “believed that EM. was more likelythan notto suffer harm unless an action to reconsiderplacement in foster care was taken.” On July24, 2018, Comiskey responded that she would not provide E.M.’s contact information and that “[u]ntil the Judge makes a decision about [Sutton’s] representation, the Departmentwill not allow [Sutton] to attend a visitwith [Morgan].” In addition to the motion for reconsideration, Sutton requested an evidentiary hearing on the proposed change of placement, arguing thatthe trial courtviolated state law by not deferring to Morgan’s wishes in regards to E.M.’s placement. The trial court issued a preliminary orderdenying Sutton’s requestforan evidentiary hearing on the

1 Aimee Sutton was appointed to serve as a Judge with the King County Superior Court on January 30, 2019. We referto Judge Sutton withoutthe honorific, as in the original proceeding. No disrespectto Judge Sutton is intended.

2 There had not been a CASA orguardian ad item (GAL) appointed to the case forthe previous nine months. -4-No. 78985-6-1/5

motion for reconsideration. The trial court required all parties to file a written response to “address the child’s requestforalternate placementwith the maternal grandmother.” On July 30, 2018, the Departmentfiled an objection to the notice ofappearance by Sutton and its response to the motion for reconsideration. The Departmentsocial worker provided a declaration explaining her“serious concerns” about placing EM. in Biryukova’s care due to a contentious relationship between Morgan and Biryukova. E.M.’s fatherfiled a response to the motion for reconsideration and moved to strike Sutton’s appearance. Morgan filed a motion for reconsideration, supporting Sutton’s motion. Bergin filed a response to Sutton’s motion and stated she took “no position on the placement motion due to her recent appointment.” Kathleen Martin, attorneyforthe CASA program, argued thatthe notice ofappearance by Sutton was “contraryto the procedure required by RCW 13.34.100” because Sutton was attempting to appear “without an orderforappointment ofcounsel forthe child.” The dependency court struck Sutton’s notice ofappearance and determined that the motion for reconsideration was not properly before the court. The court relied on RCW 13.34.100 and Rules of Professional Conduct (RPC) 1.2, 1.4, and 1.8. The court concluded that “ifanyone seeks to have an attorney appointed for [EM.], they must followthe provisions setforth in RCW 13.34.100(7).” Morgan sought discretionary review ofthis decision. We granted review.

Morgan argues thatthe dependency court lacked authority under RCW 13.34.100 to strike Sutton’s notice ofappearance. Statutory interpretation is a question of law and is reviewed de novo. Jametskyv. Olsen, 179 Wn.2d 756, 761-62, 317 P.3d -5-No. 78985-6-116

1003 (2014). When determining the meaning ofa statute, we give effectto the plain meaning ofthe language. Jametsky, 179 Wn.2d at 762. Ifthe statute is ambiguous, the court may resortto statutory construction, legislative history, and relevant case lawfor assistance in discerning legislative intent. Jametsky, 179 Wn.2d at 762. Juvenile court statutes are to be liberally construed, with the welfare ofthe minorchildren being the primaryconsideration. State ex rel. Smith v. Surerior Court of King County, 23 Wn.2d 357, 360, 161 P.2d 188 (1945). If, however, the dependency court does have an oversight role in the appointment of private counsel fordependent children, our review is forabuse of discretion. Pub. Util. Dist. No. 1 of Klickitat Countyv. Int’l Ins. Co., 124 Wn.2d 789, 812, 881 P.2d 1020 (1994) (finding the trial court did not abuse its discretion when it refused to disqualify insured public utility district’s counsel due to potential prejudice to insureds). A. Atthe outset, the State contends thatthis case is moot because attorney Sutton is now ajudge on the King County Superior Court and cannot serve as E.M.’s counsel. “A case is moot ifa court can no longer provide effective relief.” Orwickv. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). The Department’s position on mootness in this case is too narrow. We can provide effective relief because, ifwe reverse, Biryukova could retain other private counsel. Thus, this case is not moot. B. Morgan contends thatthe trial court lacked authority under RCW 13.34.100(7)(b)(i) to strike Sutton’s appearance. We disagree. -6-No. 78985-6-1/7

In Washington, children in dependency ortermination proceedings do not have a categorical due process rightto court-appointed counsel. In re Dependency ofS.K.-P., 200 Wn. App. 86, 95, 401 P.3d 442 (2017). “Statutory law and court rules grantjuvenile courts the discretion to decide whetherto appoint counsel to a child during dependency proceedings.” S.K.-P., 200 Wn. App. at 95. To determine whetherthe circumstances require appointment ofcounsel, the trial court examines the facts on a case-by-case determination using the three-parttestfrom Mathews v. Eldridge, 424 U.S. 319, 96 5. Ct. 893,47 L. Ed. 2d 18 (1976). In re Dependency of M.S.R., 174 Wn.2d 1, 14, 271 P.3d 234 (2012). under Mathews, the court considers “the private interests at stake, the government’s interest, and the riskthatthe procedures used will lead to erroneous decisions.” M.S.R., 174Wn.2d atl4 (citation omitted). GALs and CASAs provide invaluable information to the courts, but “GALs and CASAs are nottrained to, nor is ittheir role to, protectthe legal rights ofthe child.”3 M.S.R., 174 Wn.2d at20. Only legal counsel can advocate forthe legal rights and interests ofa child. M.S.R., 174 Wn.2d at21 (attorneys “can facilitate and expedite the resolution ofdisputes, minimize contentiousness, and effectuate court orders”); In re Dependency of Lee, 200 Wn. App. 414, 453, 404 P.3d 575 (2017) (describing the way an attorney may counsel a disabled child, which included appealing the denial of Developmental DisabilitiesAdministration services, applying fora Medicaid waiver, and representing the child at administrative hearings with the Department). “[T]he GAL is

~ RCW 13.34.030(11) defines guardian ad item to mean “a person, appointed bythe courtto representthe best interests ofa child in a proceeding underthis chapter, or in any matterwhich may be consolidated with a proceeding underthis chapter.” This section also states that a CASA “appointed by the courtto be the guardian ad item forthe child, orto perform substantiallythe same duties and functions as a guardian ad item, shall be deemed to be guardian ad litem forall purposes and uses of this chapter.” -7-No. 78985-6-1/8

required to advocate forthe child’s interestand is required to inform the court ofany ‘views or positions expressed bythe child on issues pending before the court’ and to ‘represent and be an advocate forthe best interests ofthe child.” M.S.R., 174 Wn.2d at 20 (citing RCW 13.34.105(b), (f)). Because oftheirdiffering roles and the factual nature ofdependencyactions, both a GAL and an attorney may be necessary and beneficial in certain cases. The legislature has recognized that dependent children may need appointed counsel. Accordingly, RCW 13.34.100(7) provides that (a) The court may appoint an attorneyto representthe child’s position in anydependency action on its own initiative, or upon the request ofa parent, the child, a guardian ad litem, a caregiver, orthe department. (b)(i) Ifthe court has not already appointed an attorneyfora child, orthe child is not represented by a privately retained attorney: (A) The child’s caregiver, orany individual, may referthe child to an attorneyforthe purposes offiling a motion to request appointment ofan attorney at public expense; or (B) The child orany individual may retain an attorneyforthe child forthe purposes offiling a motion to request appointment ofan attorney at public expense.[4~ Morgan contends thatthe statute’s reference to “a privately retained attorney” in ROW 13.34.100(7)(b)(i) demonstrates that a family membercan retain private counsel for a dependent child, without seeking court appointment. The Department agrees that read in isolation, RCW 13.34.100(7)(b)(i) suggests the legislature envisioned a privately retained attorneyfora child in at least some circumstances. Butwords in a statute should not be read in isolation from the remainderofthe statute. State v Lilyblad, 163 Wn.2d 1, 9, 177 P.3d 686 (2008). The Department urges thatwe read ROW

~‘ (Emphasis added.) -8-No. 78985-6-119

13.34.100(7)(b)(i) in conjunction with RCW 13.34.100(7)(a) which generally authorizes the dependency courtto appoint an attorneyto representthe child on its own initiative
or upon request ofan interested party. We agree with the Departmentthatwhen drafting RCW 13.34.100, the legislature envisioned a gatekeeping role being performed bythe dependency court.5 The legislative history supports our interpretation. In 2010, the legislature amended RCW 13.34.100(6). There, the legislature required the Department orthe child’s GALto inform the child of his or her rightto be represented by counsel on his or hertwelfth birthday, and each yearthereafter. LAWS OF 2010, ch. 180

### § 2 (now codified
as RCW 13.34.100(7)(c)). In 2014, the legislature amended RCW 13.34.100(6), requiring mandatory appointment ofcounsel to a child, within six months ofgranting a petition to terminate the parent and child relationship and when there is no remaining parentwith parental rights. LAWS OF 2014, ch.108

### § 2 (nowcodified as RCW 13.34.100(6)(a)). Atthe same time, the legislature also amended RCW l3.34.100(7)(a) and (b) to provide fordiscretionary appointment ofcounsel to children. LAWS OF 2014, ch. 108

### § 2 (now codified as RCW 13.34.100(7)(a), (b)). These successive amendments demonstrate the legislature’s concern that certain children in dependency actions have counsel representing their rights and interests. In the 2010 amendment, the legislature added the following findings: The legislature recognizes thatwhen children are provided attorneys in theirdependency and termination proceedings, it is imperative to provide them with well-trained advocates so thattheir legal rights around health, safety, and well-being are protected. Attorneys, who have different skills

~ The Departmentcorrectly points outthat RCW 13.34.100 contains theterm “appoint” or “appointment” 35 times, repeatedly referring to the court’s authorityto decide when appointment ofa GAL and orattorney is appropriate. -9-No. 78985-6-1/10

and obligationsthan 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 ofdependentyouth, among otherthings. Welltrained 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 ofcare. LAWS OF2010, ch. 180. These findings demonstratethatthe legislature was concerned with more thanjust a child’s access to an attorney; the legislature wanted to ensure that attorneys representing children are trained in dependency issues and subject to the court’s oversight. 6 We hold that, while RCW 13.34.100(7) contemplates both privately retained counsel and publiclyfunded counsel in dependency proceedings, privately retained counsel must seek appointment bythe trial court under RCW 13.34.100(7). C. We next considerwhetherthe trial court abused its discretion in striking the notice ofappearance. In making its decision the dependency court relied, in part, on RPC 1 .2, 1 .4, and 1 .8. Morgan argues that supervision ofthe RPCs is delegated to the state barassociation and not individualjudges. We disagree to the extentthatthe trial court considered whetherthe appearance ofprivately retained counsel without appointmentwas consistentwith the RPCs. RCW 13.34.100(6)(a) addresses potential conflicts of interest. The statute provides that “[t]he court may appointone attorneyto a group ofsiblings, unless there is

6 It is clearfrom the record that Sutton was qualified and well-trained in dependency matters. This court must be mindful, however, ofthe need recognized bythe legislature that requiresjudicial oversight ofappointment ofall attorneys representing children in dependencies. -10-No. 78985-6-Ill 1

a conflict of interest orsuch representation is otherwise inconsistentwith the rules of professional conduct.” RCW 13.34.100(6)(a). This again demonstrates the legislature’s
concern that courts have oversight ofthe appointment process to all dependent children. Here, the dependency court expressed concerns about privately retained counsel’s abilityto complywith RPC 1 .2, the dutyto consultwith the client aboutthe scope of representation, RPC 1 .4, the dutyto communicate promptlywith the client because of E.M.’s infancy, and RPC 1 .8. RPC 1.8(f) states: (f) A lawyershall not accept compensation for representing a clientfrom one otherthan the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment orwith the client-lawyer relationship; and (3) information relating to representation ofa client is protected as required by Rule 1.6. Informed consent “denotes the agreement by a person to a proposed course ofconduct afterthe lawyer has communicated adequate information and explanation aboutthe material risks ofand reasonably available alternatives to the proposed course of conduct.” RPC 1.OA(e). Once a child is declared “dependent,” legal custody is transferred to the State. In
re Dependency ofSchermer, 161 Wn.2d 927, 942, 169 P.3d 452 (2007). E.M. is an infant and cannot give informed consent. Here, Sutton placed Biryukova’s payment in a trust accountand did not draw on that payment, recognizing that E.M. could not give informed consent and that Biryukova did not have authorityto consent on E.M.’s behalf.

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This was entirely appropriate. The errorwas in not seeking appointment bythe superior court in advance ofseeking access and bringing motions. The trial court did not abuse its discretion in considering the RPCs in reaching its decision to strike Sutton’s notice ofappearance. We affirm.

WE CONCUR:

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