New Bill Says WA Foster Youth Must Be Told About Right to Request Counsel

For First Time in Decades, Washington State Passes Bill to Address Legal Representation of Foster Youth

By Casey Trupin and Erin Shea McCann

In March, Washington Gov. Christine Gregoire signed a bill requiring that foster youth be informed of their right to counsel. It is the first time in decades that the Washington Legislature has addressed the issue of legal representation for foster youth.  The bill, HB 2735, which passed out of the House and Senate unanimously, will go into effect June 10, 2010.

This new legislation is a small but critical step toward engaging Washington’s foster youth in their dependency and termination proceedings and learning when and why youth are provided counsel.

For the past three years, state child welfare advocates have pushed for legislation that addresses legal representation for foster children. Unlike most states, which mandate appointment of counsel for children in dependency proceedings, Washington law makes appointment of counsel discretionary. In many cases, youth 12 and older are required to request an attorney.  Even if a youth knows about this right and asks for an attorney, appointment of counsel is still at the court’s discretion.

HB 2735 shifts the burden away from the child, requiring the adults involved in a child’s case to notify them of their right to request counsel, determine if they want a lawyer, and then report this information back to the court.  It also requires the development of a volunteer training program and caseload standards for attorneys representing youth.  Because of the state’s ongoing budget crisis, it was not feasible to push legislation to make appointment of counsel mandatory.

The bill’s key provisions include:

• Court Appointed Special Advocates (CASAs)/Guardians ad Litem (GALs) and Department/agency caseworkers must inform youth 12 and older of their legal right to request counsel.  These individuals are also required to determine whether the youth does, in fact, want to be represented by counsel.
• CASAs/GALs and caseworkers must report to the court that they told the youth(s) of his/her right to counsel and whether the youth wants to be represented.
• The court must review these reports to ensure youth were properly notified and had the opportunity to request counsel.
• CASAs/GALs and caseworkers must notify youth who are eligible to petition the juvenile court for reinstatement of parental rights if the youth’s parent has requested reinstatement.  The reinstatement process is the only proceeding in which youth are automatically appointed counsel.
• The Administrative Office of the Courts must work with the Supreme Court Commission on Children in Foster Care to develop voluntary caseload and training standards for attorneys who represent dependent youth.

Ultimately, because HB 2735 requires caseworkers and CASAs/GALs to report back to the court, advocates can begin monitoring how often youth are denied counsel when they request an attorney and the reasons for the denial (ie fiscal concerns, judge’s belief that counsel is unnecessary). HB 2735 will help Washington understand what steps need to be taken to increase and improve legal representation for dependent children and youth.

The legislation was prompted, in part, by an appeal of a mother’s termination rights in In re the Dependency of D.R. and A.R. In that case, neither child was provided legal counsel in proceedings that permanently severed the relationship with their mother.  The children did have a volunteer CASA, but the CASA had only met with D.R. three times over the course of four years, and the CASA never met her sibling, A.R.  During the termination trial, the mother requested an attorney for D.R. (who had turned 12 during the trial), and the court directed the CASA to talk with D.R. about her interest in receiving counsel.  The CASA determined that it would be “too disruptive” for D.R. to receive an attorney, and, thus, never notified her of her right to request an attorney.

Although the State later conceded that the court abused its discretion in failing to appoint counsel for both children, that did not resolve the heart of the issue—that thousands of foster youth across Washington are shut out of the legal proceedings that determine where they will live, who they will live with, where they will go to school, and how often they will see their parents and siblings.

Under HB 2735, the CASA and D.R.’s caseworker would have been required to talk to her about her interest in receiving an attorney, and D.R. would have been more engaged in the termination proceedings.

The full text of the bill can be found at the website of the Washington State Legislature.

Erin Shea is an attorney in the Seattle office of Columbia Legal Services. Her work focuses on implementation of the foster care reform efforts in the Braam v. Washington child welfare reform settlement, and working to improve representation for foster youth in dependency proceedings.

Casey Trupin is a staff attorney in the Seattle office of Columbia Legal Services. Mr. Trupin’s client representation focuses on at-risk, homeless and foster youth and young adults.