IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE THE DEPENDENCY OF M.P., a minor, STATE OF WASHINGTON, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent,

v. PAUL PARVIN and LESLIE BRAMLETT, Appellants. 

### Respondent, Department of Social and Health Services has filed a motion for clarification ofthe nature ofthe remand ordered inthe opinion filed on October 20, 2014, and the court has determined that the motion for clarification be granted; Now therefore, it is hereby 

### ORDERED that the motion for clarification is granted to the effectthat the matter is remanded for a new trial. IT IS FURTHER ORDERED thatthe opinion filed on October 20, 2014 is withdrawn and a substitute published opinion be filed. 

## DATEDthis 22? dayof UJUUV\bt/ 2014.
FOR THE COURT:
f.ox No. 69713-7-1 Consolidated w/ No. 69714-5-1

ORDER GRANTING MOTION FOR CLARIFICATION AND WITHDRAWING AND SUBSTITUTING OPINION

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— _^ ~~ «x> i ) CO C? • •;-, r_*IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE THE DEPENDENCY OF M.P., a minor, STATE OF WASHINGTON, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent,

v. PAUL PARVIN and LESLIE BRAMLETT, Appellants. Spearman, C.J. — After a trial on the State's petition for guardianship as to M.P., the trial court entered orders establishing the guardianship and 

### dismissing the dependency as to M.P. The parents of M.P., Paul Parvin and Leslie Bramlett, appeal the trialcourt's orders. Bramlett argues that the trial court 

### erred when it excluded twodefense witnesses without conducting a Burnet1 inquiry on the record. She argues, in the alternative, that her lawyer provided ineffective assistance when the lawyer failed to give proper notice ofthe 

### excluded witnesses. Bothparents also contestthe trialcourt's findings of fact and conclusions of law. Because the trial courtfailed to make findings on the record 

### regarding the three Burnet factors prior to excluding Bramlett's witnesses, we reverse the orders establishing the guardianship and dismissing the dependency. We also conclude that RCW 13.36.040(2)(c)(iv) requires the State to prove that No. 69713-7-1 Consolidated w/ No. 69714-5-1

DIVISION ONE

PUBLISHED OPINION FILED: December 22, 2014 r-3 „'".''.r
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Burnet v. Spokane Ambulance. 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).No. 69713-7-1/2 

### all ordered and necessary services have been "expressly and understandably" offered or provided to the parents. FACTS 

### Paul Parvin and Leslie Bramlett are the natural parents of M.P. InJune 2010, M.P. was removed from his parents' custody based on allegations that 

### M.P. was neglected while in their care. The State, through the Department of Social and Health Services, alleged Parvin and Bramlettwere unable to parent M.P. because they suffered from mental illness and substance abuse and had a history ofdomestic violence. InAugust 2010, a dependency was established by agreed order as to both parents. The court ordered both parents to participate in mental health services, parenting counseling, urinalysis testing, and other services. Approximately a year later, the State determined that neither parent had made sustained progress addressing their parental deficiencies and, on August 31, 2011, filed a petition for termination of parental rights. Trial on the petition
was initiallyset for January 17, 2012. The court issued an Order Setting Case Schedule, which established December 1, 2011 as the discovery cutoffdate. The trial date was continued several times. First, on December 21, 2011, upon Parvin's motion, the trial court continued the trial date to March 5, 2012, but specifically declined to amend the case schedule. On February 29, 2012, upon 

### thejoint motion of Parvin and Bramlett, the trialcourt continued the trialdate until April 30, 2012, with no further amendment to the case schedule. On April 10, 2012, the State moved to substitute a guardianship petition for the termination 

### petition. The motion was granted and trialwas continued to May 21, 2012. TheNo. 69713-7-1/3
court ordered that the termination case schedule and guardianship case schedule be consolidated for trial. On June 8, 2012, the parties filed an agreed motion to continue the trial date after the State mistakenly tendered discovery 

### responses containing unredacted privileged materials and work product. The trial 

### court continued the trial to August 13, 2012, with a pretrial conference to be held
on August 3, 2012. This order made no mention ofthe case schedule. One month later, on July 9, 2012, Bramlett was assigned new defense 

### counsel. On August 2, 2012, Bramlett moved the court foranothercontinuance of the trialdate to allow her new attorney to prepare for trial. The next day, Bramlett and the State, through their attorneys, appeared at the August 3, 2012 pretrial 

### conference and argued the motion. At the conclusion of the hearing, the trial court entered two orders. One order, entitled "pretrial conference order," 

### amended the deadlines for pretrialdisclosures by allparties, specifying that 

### updateddiscovery must beprovided toopposing parties onAugust 10,2012, and that witness lists must be disclosed by August 13, 2012. The other order 

### continued trial to August 27, 2012, indicated that nofurther continuanceswould 

### begranted, and stated that"[n]o amended case schedule is necessaryforthis case." Clerk's Papers (CP) at 854. 

### OnAugust 14,2012, two weeksbefore trial and one day aftertheAugust 13 disclosure date established by the pretrial conference order, Bramlett served the State with a witness listthat included, for the first time, Dr. Makiko Guji. 

### Bramlettclaimed Dr. Guji had treated herforthe past year andwould testifythat Bramlett had made good progress in treatment. Dr. Guji's involvement in Bramlett's treatment had never been disclosed to the assigned social worker orNo. 69713-7-1/4 

### the court. No records, reports, evaluations, qualifications, or other information outlining the expected testimony was provided to the State at thattime. 

### Two days later, on August 16, 2012, Bramlett filed an amended witness listthat included a second previously undisclosed witness, Dr. Carmela 

### Washington-Harvey.2 Bramlett represented that Dr. Washington-Harvey was prepared to opine that Bramlett was able to capably parent M.P. The State filed a motion to exclude the testimony of both Dr. Guji and Dr. 

### Washington-Harvey because neither witness had been disclosed in compliance with the case schedule. M.P.'s Court Appointed Special Advocate (CASA)joined in the State's motion, asserting that she had just been apprised that Bramlett 

### intended to callDr. Guji and Dr. Washington-Harvey as expert witnesses and that she had never been advised that an evaluation by Dr. Washington-Harvey was 

### underway. The trial court granted the State's request. 

### The case proceeded totrial on September 13, 2012. Atthe end oftrial, the 

### courtgranted the State's guardianship petition and entered an orderappointing M.P.'s maternal aunt, Kim Kerrigan, as M.P.'s guardian. The court also entered 

### an orderdismissing the dependency as to each parentsolely on the basis that 

### theguardianship had been established as toM.P. Thecourtalso reduced the 

### parents' visitationfrom three unsupervised visits perweekto onesupervised visit per week. Both parents appeal.

2The parties dispute whether this witnesslistwas served on the State 

### contemporaneously. The State maintains thatitwas notservedwith this witness listatthetimeof filing and only learned thatDr. Washington-Harveywould becalled as awitness when itwas provided a copy of her evaluation on August25, 2017.No. 69713-7-1/5
DISCUSSION I. Bramlett contends the trial court abused its discretion when it excluded the testimony of Dr. Guji and Dr. Washington-Harvey as a sanction for discovery violations. She argues that because the trial court failed to make the necessary findings under Burnet before excluding herwitnesses she is entitled to a new trial. The State contends Burnet is not applicable in this case because only testimony was excluded. Itargues that a trial court need only considerthe Burnet factors when itimposes the "most severe" sanctions ofdismissal or default. Brief ofRespondent at 16. The State also argues that even ifBurnet is applicable, the trial court did not abuse its discretion by excluding Bramlett's witnesses because 

### the record shows the trial court gave sufficient consideration to the relevant factors. We reject the State's arguments and agree with Bramlett. A trial court has broad discretion when imposing sanctions for discovery violations and we willnot disturb a trial court's determination in this regard 

### "'except on a clear showing ofabuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" 

### Burnet, 131 Wn.2d at 494. (quoting Associated Mortgage Investors v. G.P. Kent Constr. Co.. 15 Wn. App. 223, 229, 548 P.2d 558 (1976). When the trial court 

### chooses to impose one ofthe harsher remedies allowable underthe discovery rules, itmust be apparentfromthe record that the trial court explicitly considered whether a lesser sanction would probably have sufficed, and that it found the 

### disobedient party's refusal to obey a discovery order was willful ordeliberate and the violation substantially prejudiced the opponent's ability to prepare fortrial. Id.No. 69713-7-1/6
The State relies on Maver v. Sto Indus., Inc., 156 Wn.2d 677, 132 P.3d 115, 118 (2006) to argue that the exclusion oftestimony is not one ofthe "harsher remedies" permitted under the discovery rules and thus not subjectto Burnet. But neither Mayer nor subsequent cases addressing this issue supports the State's position. In Mayer, the Supreme Court explained which discovery sanctions trigger consideration ofthe Burnetfactors as follows: [T]he case law that the Burnet court relied on established that before a trial court may impose a CR 37(b)(2)(B) sanction excluding testimony, a showing ofwillfulness was required; that, for 'one of the harsher remedies allowable under CR 37(b),' the record must 

### clearly state the reasons forthe sanction; and thatforthe 'most severe' CR 37(b)(2)(C) sanction ofdismissal or default, the record must show three things—the trial court's consideration of a lesser sanction, the willfulness ofthe violation, and substantial prejudice 

### arising from it. However, by ellipticallyquoting the three-parttest of rSnedioar v. Hodderson. 53 Wn. App. 476, 487, 768 P.2d 1 (1989), rev'd in part, 114Wn.2d 153, 786 P.2d 781 (1990)], the Burnet 

### court extended the test beyond the 'most severe' sanctions of dismissal or withdrawal to encompass 'the harsher remedies allowable under CR 37(b)'—a phrase that, at a minimum, means a 

### CR 37(b)(2)(B) sanction excluding testimony but that, more broadly, encompasses any and all of the sanctions described in CR 37(b)(2)(A)-(E). Maver, 156 Wn.2d at 688. Thus, the Maver court made explicit the requirement thattrial courts consider the Burnetfactors prior to excluding witness testimony


### as a discovery sanction. The court reiterated this rule inBlairv. Ta-Seattle East No. 176, 171 Wn.2d 342, 349, 254 P.3d 797 (2011) ("Maver clearly held thattrial courts do not have to utilize Burnet when imposing lessersanctions, such as 

### monetary sanctions, but must consider its factors beforeimposing a harsh sanction such as witness exclusion"); Teterv. Deck, 174 Wn.2d 207, 217, 274 

### P.3d 336 (2012) ("Discovery sanctions that trigger consideration of the Burnet factors include exclusion ofwitness testimony") (citing Maver, 156 Wn.2d at 690);No. 69713-7-1/7 

### and Jones v. City ofSeattle, 179Wn.2d 322, 344, 314 P.3d 380 (2013) (finding a Burnetviolation where the trial court properlyconsidered prejudice, but not 

### willfulness orlesser sanctions priorto exclusion of late-disclosed witnesses). We conclude that Burnet is applicable to this case and turn to whetherthe trial court's 

### exclusion of Bramlett's witnesses is supported byadequate findings. The trial court based its conclusion that exclusion of Bramlett's witnesses


### was proper on considerations of public policyand its interpretation ofKing County Court Local Civil Rules 26(k)(4). The courtfound that as a matter of policy, indigent defendants who obtain experts ex parte, as in this case, should bearthe burden of timely disclosure ofthose witnesses, at the risk ofexclusion. It further determined that "KingCounty's civil rules specifically prohibitwitnesses to be called to testify ifthey were not disclosed in accordance with the case 

### schedule."3 (Emphasis added). CP at 1147. But the requisite findings under
Burnet are absent from the record. The State argues the record is sufficientfor us to conclude that the third Burnetfactor, willfulness, was established and that the other two factors were explicitly found by the trial court. The arguments are unpersuasive. First, it is incumbent upon the trial court to make the requisite findings as
to all three factors. Teter, 174 Wn.2d at 216-17. The State concedes the trial court made no finding as to willfulness but urges that we may do so based on the

3We note that LCR 26(k)(4) provides that "[f]ailure to comply with ... the court's Order Setting Case Schedule may result in sanctions, including the exclusion ofwitnesses." (Emphasis added). Generally, when the term "may" is used in a statute or court rule, it is an indication that a referenced course of action is discretionary rather than mandatory. See, e.g., In re Marriage of Kim. 179 Wn. App. 232, 250-51, 317 P.3d 555. review denied. 180Wn.2d 1012, 325 P.3d 914 (2014). The trial court's conclusion that excluding the witnesses was mandatory under the local rule was erroneous.No. 69713-7-1/8 

### record from below. The State is incorrect. The Supreme Court has explicitly "rejected] the premise 'that an appellate court can considerthe facts in the first instance as a substitute for the trial court findings that our precedent requires.'" Teter, at 217-18 (quoting Bjair, 171 Wn.2d 342, 351). Second, even ifwe were to do as the State suggests and find that the discovery violation was wilful, itwould be unavailing because the trial court's consideration of whether a lesser sanction would suffice fails to satisfy Burnet. Generally, the purpose of sanctions is to deter, to punish, to compensate, to educate, and to ensure that the wrongdoer does not profit from the wrong. Burnet, 131 Wn.2d at 496, citing Washington State Physicians Ins. Exch. &Ass'n
v. Fisons Corp., 122 Wn.2d 299, 356, 858 P.2d 1054 (1993). Here, the trial court considered the State's alternative request for attorney fees and costs as a sanction and concluded that such a sanction was inappropriate. Itreasoned that itmade no sense to reallocate tax dollars from one public agency (the public 

### defender) to another (the attorney general). Butthe court did not explain why such a reallocation offunds and the resulting burden on the public defender's 

### budgetwould not serve to deter similarconduct in the future or meet any of the other purposes of imposing a sanction. 

### Additionally, whilethe trial court correctly found the State's and the 

### CASA's ability to prepare for trial would be substantially prejudiced ifBramlett's witnesses testified, it failed to adequately considerwhetherthe lesser sanction of 

### continuing the trial would be a sufficient remedy. The trial court concluded, without explanation, that it"would prejudice the [Sjtate ... to continue the trial 

### again." CP at 1147. Butthere is noindication in the record that the court
8No. 69713-7-1/9 considered the length ofany continuance necessary to allow the State to prepare for Bramlett's late-disclosed witnesses. Without this information, the court could not properly determine the extent ofthe prejudice, if any, that a delay would
cause. Because the trial court did not articulate, in otherthan general terms, the nature ofthe prejudice a continuance would cause, we conclude itgave 

### inadequate consideration to whether a lesser sanction would suffice.4 The erroneous exclusion of a party's witnesses is reversible error unless the error was harmless. Jones, at 356. InJones, our supreme court applied, for 

### the first time, a harmless error analysis to a Burnetviolation.5 The court held the
error inthat case was harmless because the excluded testimony was largely irrelevant or cumulative. Jones, at 356-57. Here, we are unable to determine 

### whetherthe excluded testimony would have been cumulative, irrelevant, or otherwise inadmissible. The admissibility ofthe excluded testimony was not 

### litigated belowand there islittle in the record to indicate, in more than general terms, the nature of the testimony expected to be elicited from the excluded witnesses. On this record, we are unable to saythe exclusion ofBramlett's 

### witnesses was harmless. Accordingly, the orders establishing the guardianship and dismissing the dependency must be reversed.
II. 

### Bramlettalso argues that the trial court misinterpreted the guardianship statute and improperly lowered the State's burden ofproof. Becausethe issue
4The State also points out that thetrial courtconcluded that a continuancewould violate 

### M.P.'s rightto timely permanency. Butin theabsence ofany indication ofthelength ofany necessary delay, the record does not support thisconclusion. 5We note that Jones was decided after briefingwas completed in this matter, but at our request, the parties didaddress the issue at oral argument.No. 69713-7-1/10 

### may arise on remand we address ithere. To establish a guardianship under RCW 13.36.040(2),6 a court must findthat each ofthe statutory elements have 

### been proven by a preponderance of the evidence.7 Inre Dependency ofA.C 123 Wn. App. 244, 248, 98 P.3d 89 (2004). RCW 13.36.040(2)(c)(iv) provides, in relevant part: The services ordered under RCW 13.34.130 and 13.34.136 have 

### been offered or provided and all necessary services, reasonably available, capable ofcorrecting the parental deficiencies withinthe foreseeable future have been offered or provided;

6RCW 13.36.040(2) provides: (2) Aguardianship shall be established if: (a) The court finds by a preponderance of the evidence that it is in the child's best interests to establish a guardianship, ratherthan to terminate the parent-child relationship and proceed with adoption, or to continue efforts to return custody of the child to the parent; and (b)All parties agree to entry of the guardianship order and the proposed guardian isqualified, appropriate, and capable ofperforming the duties of guardian

... or (c)(i) The child has been found to be a dependent child...; (ii) A dispositional order has been entered...; (iii) Atthe time of the hearing on the guardianship petition, thechild has orwill have been removed from the custody of the parentfor at leastsixconsecutive months following a finding ofdependency...; (iv) The services ordered ... have been offered orprovided and allnecessary services, reasonablyavailable, capable ofcorrecting the parental deficiencies within the foreseeable future have been offered or provided; (v) There islittle likelihood thatconditions will beremedied so that thechild can be returned to the parent in the nearfuture; and
... (vi) The proposedguardian has signed a statementacknowledging the guardian's rights andresponsibilities toward thechild andaffirming theguardian's understanding and acceptance that theguardianship is acommitmenttoprovide care for the child until the child reaches age eighteen. 7Bramlettargues that the State had a burden ofproving thestatutory elementsby clear, cogent, andconvincing evidence. She ismistaken. Unlike parental termination cases, 

### which apply theclear, cogent, andconvincing evidence standard, guardianship needonly be established by a preponderance ofthe evidence. See, In re A.C, supra.
10No. 69713-7-1/11 By comparison, Washington's termination statute provides: (d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable ofcorrecting 

### the parental deficiencies withinthe foreseeable future have been expressly and understandably offered or provided; 

### RCW 13.34.180(1 )(d) (emphasis added). Noting the difference between the two statutes, the trial court concluded that RCW 13.36.040(c)(iv) "does not require 

### that services be 'expressly and understandably' offered orprovided."8 CP at 1043. We disagree. The trial court's construction ofa statute is an issue of law, which we review de novo. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). A court 

### interpreting a statute must discern and implement the legislature's intent. Anthis v. Copland, 173 Wn.2d 752, 756, 270 P.3d 574 (2012). Where the plain language of


### a statute is unambiguous and legislative intent is apparent, the reviewing courtwill not construe the statute otherwise. Id Plain meaning may be gleaned "from all 

### that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Id. (citing Dep'tofEcology v. Campbell &Gwinn. LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). Ifthe statute is still 

### "susceptible to more than one reasonable interpretation, then a court may resort 

### to statutoryconstruction, legislative history, and relevantcase law forassistance 

### in determining legislative intent." Id (citing Christensen v. Ellsworth, 162Wn.2d 365, 373, 173 P.3d 228 (2007)).
8"Expressly and understandably" offering orproviding services means, among other 

### things, thatservices mustbetailored to theparent's individual needs. See,e^a. In reDependency ofT.R.. 108 Wn. App. 149, 161,29P.3d 1275 (2001V Inre Dependency ofH.W., 92 Wn. App. 420, 429-30, 961 P.2d 963 (1998).
11No. 69713-7-1/12 

### Before 1998, the language ofthetermination statute, RCW 13.34.180(4), was identical in all relevant respects to the language at issue here in the 

### guardian statute, RCW13.36.040(2)(c)(iv). The termination statute, provided: (4) That the services ordered under RCW 13.34.130 have 

### been offered or provided and allnecessary services, reasonably available, capable ofcorrecting the parental deficiencies within the foreseeable future have been offered or provided. 

### Lawsof 1997, ch. 280, § 2. Despite the absence ofexpress statutory language mandating that services be "'expressly and understandably'" offered or provided, 

### courts nevertheless interpreted former RCW 13.34.180(4) (1998) as containing such a requirement. See, e.g., Inre Dependency of PAD., 58 Wn. App. 18, 792 

### P.2d 159 (1990) (concluding thatthe State must understandably offer remedial services by tailoring them to individual needs ofthe parents); In re Welfare of 

### Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983) (requiring the State to expressly offer services by, minimally, providing the parents with a referral list). In 1998 the Legislature, in apparent recognition ofthose cases, amended the statute to add the words "expressly or understandably." Laws of 1998, ch. 314, § 4. The legislature is presumed to be familiar with judicial interpretations of statutes and, absent an indication itintended to overrule a particular interpretation, amendments are presumed to be consistent with previousjudicial decisions. State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610 (2000). Hence, the legislature is presumed to have been aware, when itenacted the amended guardianship statute, that the language used implicitlyincludes a requirement that remedial services be expressly and understandably offered or provided. We find no reason, and the State offers none, to depart from earlier decisions
12No. 69713-7-1/13 

### interpreting the nearly-identical language offormer RCW 13.34.180(4). We conclude that in a guardianship proceeding under RCW 13.36.040(2), subsection 

### (c)(iv) requires the State to prove that remedial services were expressly and understandably offered or provided to the parents. III. 

### We reverse the orders establishing the guardianship and dismissing 

### dependency, reinstate the dependency as to both parents and remand for a new trial.9 Reverse and remand. 

# / U-(rS\/<- 

# en

WE CONCUR: 

# lfxot<e^ i -1

9In lightofthegrounds upon which weresolve this case, weneed notaddress the remaining issues raised by the parties. 13