Opinion Information Sheet

			

   IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Dependency of          )
MSR and TSR.                                )
                                            )
WASHINGTON STATE                     )      No. 85729-6
DEPARTMENT OF SOCIAL AND                    )
HEALTH SERVICES,                            )       En Banc
                                            )
                      Respondent,           )
                                            )
       v.                                   )
                                            )
NYAKAT LUAK,                                )
                                            )
                      Appellant.            )       Filed March 1, 2012
_______________________________)
       CHAMBERS, J.  --  After a lengthy trial, a judge found that the State had 
established all statutory and constitutional factors necessary for the termination of 
Nyakat Luak's parental rights to her twin sons.  Luak argues that the trial court 
erred in finding two of the statutory factors: that the State expressly and 
understandably offered or provided to her all the necessary services to correct her 
parental deficiencies and that there was little likelihood those deficiencies could be 
remedied in the foreseeable future.  We find substantial evidence supports the 
judge's findings.  
       Additionally, Luak contends the trial judge erred in not appointing counsel to  

In re Dependency of MSR and TSR, No. 85729-6

represent her twin sons.  Washington law authorizes, but does not require, trial 
judges to appoint counsel to children who are the subject of dependency and 
termination cases. RCW 13.34.100(6).  Luak essentially contends that the statute is 
inadequate and constitutional due process guarantees every child in a dependency or 
termination case appointed counsel.  We agree that children whose parents are 
subject to dependency and termination proceedings have vital liberty interests at 
stake and may constitutionally be entitled to counsel, if necessary to protect those 
interests. But whether any individual child is entitled to counsel must be decided 
case by case. We hold that RCW 13.34.100(6) is constitutionally adequate and that 
the deprivation, if any, of a child's right to counsel in such circumstances may be 
protected by appellate review.  We note that neither Luak nor anyone else requested
counsel for her children below and she raised her due process claim for the first time 
on appeal, denying the trial judge of the opportunity to timely consider the issue.  
She has failed to meet her burden of showing reversible error, and the termination of 
her parental rights is affirmed.  
                                           FACTS
       The trial court found Luak left her then four-year-old twin sons and the twin's 
younger sister alone in her apartment while she went to work.  While the children 
were alone in the apartment, a fire broke out.1 After the fire was put out, police 

waited for two hours for a parent or caretaker to return.  When none did, the 
children were taken into protective custody and transported to Seattle Children's 
Hospital to be treated for smoke inhalation.  About five and a half hours after the 

1 Luak objects to the trial court's finding that she left the children alone.  

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fire, Luak contacted the police.  When she was told that her children were at the 
hospital and that they had been found unsupervised in an apartment during a fire, 
she became hysterical and hung up.  Luak went to the hospital and waited in the 
parking lot for her children to emerge.  When she saw her children with a social 
worker, she "assaulted social worker Mary Marrs in the parking lot of Children's 
Hospital by punching her in the head and kicking her in the leg." Clerk's Papers 
(CP) at 185.
       Luak's life has undoubtedly been very difficult.  She is a refugee from the 
Sudanese civil wars and spent time in a brutal refugee camp before immigrating to 
the United States as a teenager.  At the time of the trial, she had three children and 
was pregnant with a fourth.  In addition to the twin boys, born in 2000, at issue in 
this petition, their younger sister who was in the apartment is now in the custody of 
her father.  The father of the twin boys has apparently played no role in their lives,
and his parental rights were terminated in 2008.
       The twins were found dependent in 2005.  In January 2006, after Luak 
completed parenting classes, the children were returned to her.  They were removed 
that October after one was injured by Luak's brother, who drove drunk with the 
children in the car.  They were returned to Luak in June 2007 and removed that 
October after Luak was arrested on suspicion of possession of a stolen vehicle and 
on an outstanding warrant for a weapons violation. They were returned again that 
November and removed again that December.  It appears that Luak has not had 
custody since.  

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In re Dependency of MSR and TSR, No. 85729-6

       While Luak clearly loves her children and no one has suggested that she has 
ever physically harmed them herself, Luak has a history of episodes of rage and 
physical attacks on those around her.  Luak was directed to take parenting and anger 
management classes, to avail her of family preservation services, to undergo a 
psychological assessment, and to follow any therapy recommendation made by the 
evaluator. The psychological evaluator initially recommended psychotherapy and 
later cognitive behavioral therapy, which Luak did not do.  
       In 2008, Luak assaulted a visit supervisor in front of her daughter and 
assaulted her boyfriend by repeatedly punching him in the head while he was 
holding their one-month-old son.  A 2008 evaluation found that Luak's parental 
deficiencies had not improved and stressed the need for cognitive behavior therapy.  
The trial court found that "[t]he evidence presented at this trial establishes beyond 
doubt that the essential service for Ms. Luak is [cognitive behavior therapy and] it is 
clear that she has known for years that she has been ordered to do it and where to 
obtain it but has failed to do so."  CP at 183. Aside from that, she "participated in 
the ordered services more than once."  Id.  
       On August 8, 2008, the State petitioned to terminate the parent-child 
relationship.  It noted that the children were in a relative placement and were doing 
well.  A guardian ad litem (GAL) for the children was assigned a week later.  It 
appears that the twins have been living with their uncle, Luak's brother, since 2007.  
A social worker testified that the uncle had an "open-door policy" where Luak was 
welcome to visit at any time, but as of the time of trial, had not.  Before the trial, the 

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In re Dependency of MSR and TSR, No. 85729-6

State filed a motion in limine to exclude MSR, TSR, and their younger sister 
from testifying, arguing that it was not in their best interests, that cross examination 
would likely "cause the children undue discomfort" and that the experience could 
traumatize them.  CP at 94-95, 97. It noted that the GAL was "statutorily required 
to report to the court the express wishes of [the children] regarding termination of 
parental rights [and] if the children oppose termination . . . the court will be required 
to take that into consideration."  CP at 97. Luak opposed the motion, arguing that 
the court should hear from the children before making such a monumental decision 
about their lives and that the trauma of testifying would be outweighed by the 
trauma of having the decision made without their input.  In the alternative to formal 
testimony, she suggested the trial judge interview the children in chambers, with 
counsel present.  During the pretrial hearing, the court appointed special advocate
(CASA) for the children supported the State's motion in limine.2 The GAL 

stipulated that "the boys would say that they don't want to lose their mom."  7A 
Verbatim Report of Proceedings (VRP) (Oct. 18, 2009) at 988. However, the GAL
strongly opposed having the children testify because it could cause them "extreme 
anxiety," and they might "blame themselves for the rest of their lives that they 
caused the action that the Court had to take."  Id. at 988-89.        Judge James Doerty

2 The CASA program was established in 1977 by King County Superior Court Judge David W. 
Soukup.  While a judge in juvenile court, Judge Soukup was struck by the fact "that there was no 
one in the courtroom whose only job was to provide a voice for those children."  He recruited 
volunteers to advocate for such children.  David W. Soukup, Thanks for 30 Years of 
Volunteering, The Connection: News and Information from the National Court Appointed Special 
Advocate Association, Spring 2007, at 4.  Since that time, the program has gone nationwide and 
over two million children have been represented by CASA volunteers. Id. at 2. 
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In re Dependency of MSR and TSR, No. 85729-6

said, "I don't see the purpose, and there's a big downside" and granted the motion
to exclude the children from testifying.  Id. at 991. It appears from the record and 
briefing that Luak never suggested counsel be appointed to represent her children.  
       After a 13 day trial, Luak's parental rights were terminated.  Judge Doerty
found that Luak clearly loved her children and found "the possibility of losing them 
through the legal system enormously frustrating and baffling."  CP at 181.            He also 
found that her testimony was not credible and that she had "clearly" and repeatedly 
lied. CP at 148, 181. He found that she "has not accepted responsibility for her 
actions and choices or acknowledged the importance of doing so to anybody; she 
was unable to do so during the trial."  CP at 189. Judge Doerty found the State had 
established the statutory factors by clear, cogent, and convincing evidence and that 
termination was in the children's best interests.  
                                         ANALYSIS
                                     1. Statutory Factors
       Luak challenges the trial judge's conclusion on two of the statutory factors: 
that services were adequately offered and that there was little likelihood of 
remedying her parental defects in the foreseeable future.  RCW 13.34.180(1)(d), (e). 
Parental rights can be terminated only if the trial court finds by clear, cogent, and 
convincing evidence that all six statutory factors have been met, among other things 
not raised here.  RCW 13.34.180; In re Welfare of A.B., 168 Wn.2d 908, 911-12, 
232 P. 3d 1104 (2010).3 We will uphold the trial court's factual findings if they are 

3 In accordance with A.B., the trial court explicitly found that "Luak is unfit to parent these 
children."  CP at 194 (Finding of Fact 1.74).  Luak assigned error to this finding but devoted no 
specific argument to it.  
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In re Dependency of MSR and TSR, No. 85729-6

supported by substantial evidence.  In re Dependency of K.S.C., 137 Wn.2d 
918, 925, 976 P.2d 113 (1999) (citing In re Dependency of C.B., 61 Wn. App. 280, 
286, 810 P.2d 518 (1991)).  Unchallenged findings are verities on appeal.  State v. 
Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004) (citing State v. Hill, 123 Wn.2d 
641, 644, 870 P.2d 313 (1994)). 
                                         A. Services
       Among other things, the State must establish "[t]hat the services ordered 
under RCW 13.34.136 have been expressly and understandably offered or provided 
and all necessary services, reasonably available, capable of correcting the parental 
deficiencies within the foreseeable future have been expressly and understandably 
offered or provided."  RCW 13.34.180(1)(d).  Luak does not seriously contend 
adequate services were not offered to her.  She focuses on the "understandably" 
requirement and argues the trial judge erred in finding that services were 
understandably offered to her, contending that "the social workers failed to 
adequately communicate . . . the importance of the recommended therapy."  Br. of 
Appellant at 27.  But the evidence supports the trial judge's detailed findings to the 
contrary.  Luak was told repeatedly by the social workers she needed cognitive 
behavior therapy, she was told repeatedly that her parental rights could be 
terminated if she did not do it, she was repeatedly referred to providers, and she 
chose not to undergo it.  2 VRP (Sept. 29, 2009) at 196, 260; III-A VRP (Oct. 7, 
2009) at 415 (referencing two specific cognitive behavior therapy referrals); CP at 
182-84; Ex. 56 (Oct. 31, 2008 letter stressing need for cognitive behavior therapy); 

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In re Dependency of MSR and TSR, No. 85729-6

Ex. 57 (Mar. 9, 2009 letter stressing need for cognitive behavior therapy "as a pre-
condition of having your children returned to your care" and listing service 
providers, including low or no cost providers); Ex. 60 (similar letter sent Apr. 22, 
2009).  Judge Doerty heard the evidence from both sides and specifically concluded 
that necessary services had been understandably, expressly, and repeatedly offered.  
Substantial evidence supports his conclusion. 
                                  B. Parental Deficiencies
       Luak contends that the trial judge erred in finding that there was little 
likelihood her parental deficiencies could be remedied in the foreseeable future 
under RCW 13.34.180(1)(e).  The trial judge found that Luak had a 
"'psychological incapacity or mental deficiency . . .  so severe and chronic as to 
render [her] incapable of providing proper care for the child for extended periods of 
time or for periods of time that present a risk of imminent harm to the child.'"  CP at 
190-91 (quoting RCW 13.34.180(1)(e)(ii)).  While there is certainly evidence in the 
record that Luak was often a loving and attentive mother, there was also substantial 
evidence, discussed above, that she suffered from deep deficiencies that had not 
improved in the five years since the case began and showed little likelihood of being 
remedied in the near future.  The trial court did not err in finding that "[t]here is little 
likelihood that conditions will be remedied so that the children could be returned to 
their mother's care in the near future."  CP at 185. The statutory factors have been 
met. 
                        2.  Due Process and the Right to Counsel

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In re Dependency of MSR and TSR, No. 85729-6

       For the first time on appeal, Luak contends that her children had a 
constitutional right to counsel; that since no counsel had been appointed, their rights
had been violated; and that thus the termination order must be vacated. Typically, 
we do not consider issues raised for the first time on appeal.  RAP 2.5(a).  However, 
we have the authority to do so.  See Alverado v. Wash. Pub. Power Supply Sys., 111 
Wn.2d 424, 429, 759 P.2d 427 (1988) (citing Siegler v. Kuhlman, 81 Wn.2d 448, 
502 P.2d 1181 (1972)).  This court may consider even moot questions when "it can 
be said that matters of continuing and substantial public interest are involved."  
Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972) (citing 
State ex rel. Yakima Amusement Co. v. Yakima County, 192 Wash. 179, 73 P.2d 
759 (1937), overruled in part by Schneidmiller & Faires, Inc. v. Farr, 56 Wn.2d 
891, 355 P.2d 824 (1960)). Given the extensive briefing from both the parties and 
amici, we find this is an appropriate case to consider the question.4  

       Both our current statutory law and our court rules give trial judges the 
discretion to decide whether to appoint counsel to children who are the subjects of 
dependency or termination proceedings.  RCW 13.34.100(6)(f) ("If the child 
requests legal counsel and is age twelve or older, or if the guardian ad litem or the 
court determines that the child needs to be independently represented by counsel, 
the court may appoint an attorney to represent the child's position."); JuCR
9.2(c)(1).5 In 2010, the legislature specifically required that children 12 years and 

older be informed of the right to request counsel and be asked every year whether 

4 Luak contends that she did preserve this issue by putting her children on the witness list and 
asking the trial judge to hear from them.  We find that this is not specific enough to raise the 
children's constitutional right to counsel.  
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In re Dependency of MSR and TSR, No. 85729-6

they wish to exercise that right.  Laws of 2010, ch. 180, § 2(6)(a), codified as
RCW 13.34.100(6).6 Luak, supported by many amici, essentially contends that our 

system is unconstitutional because it does not guarantee counsel in every case. 
Whether a statute is constitutional is a question of law we review de novo.  Hale v. 
Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 503, 198 P.3d 1021 (2009) (citing 

       5 Dependency and Termination Proceedings.  The court shall provide a lawyer 
       at public expense in a dependency or termination proceeding as follows:
              (1) 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.
JuCR 9.2(c).

       6 (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:
              (i) The date of the child's twelfth birthday;
              (ii) Assignment of a case involving a child age twelve or older; or
              (iii) July 1, 2010, for a child who turned twelve years old before July 1, 
       2010.
              (b) The department or supervising agency and the child's guardian ad litem
       shall repeat the notification and inquiry at least annually and upon the filing of any 
       motion or petition affecting the child's placement, services, or familial 
       relationships.

RCW 13.34.100(6).  Additionally, the judge is to inquire whether the child wants counsel.  Id. 
Since the twins turned nine during the termination trial, this amendment does not specifically 
apply to them.  At the time of trial, the statute authorized trial judges to appoint counsel (to 
children of any age) but did not specifically require that the GAL or the judge inquire whether the 
child wanted one.  Former RCW 13.34.100(6) (1993).  The legislature amended the statute 
because it was concerned children were not being informed of their right to counsel and to stress 
the need for "well-trained advocates."  Laws of 2010, ch. 180, § 1 (legislative findings).  
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In re Dependency of MSR and TSR, No. 85729-6

State v. Jones, 159 Wn.2d 231, 149 P.3d 636 (2006)).  We presume that statutes are 
constitutional, and the challenger bears the burden of showing otherwise.  State v. 
Lanciloti, 165 Wn.2d 661, 667, 201 P.3d 323 (2009) (citing Ludvigsen v. City of 
Seattle, 162 Wn.2d 660, 668, 174 P.3d 43 (2007); Heinsma v. City of Vancouver, 
144 Wn.2d 556, 561, 29 P.3d 709 (2001)).
       This court recognized long ago that parents subject to dependency and 
termination proceedings have a fundamental liberty interest in the right to parent 
their children and a constitutional right to counsel when the State seeks to terminate 
that right.  In re Welfare of Myricks, 85 Wn.2d 252, 253-54, 533 P.2d 841 (1975); 
In re Welfare of Luscier, 84 Wn.2d 135, 136-39, 524 P.2d 906 (1974). We 
concluded:

              The right of a natural parent to the companionship of his or her 
       child must be included within the bundle of rights associated with 
       marriage, establishing a home and rearing children. This right must 
       therefore be viewed as "so rooted in the traditions and conscience of 
       our people as to be ranked as fundamental."  Snyder v. Massachusetts, 
       291 U.S. 97, 105, 78 L. Ed. 674, 54 S. Ct. 330, 332, 90 ALR 575 
       (1934), cited with approval in Griswold v. Connecticut, 381 U.S. 479, 
       487, 14 L. Ed. 2d 510, 85 S. Ct. 1678, (1965)[, Snyder overruled in
       part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S Ct. 1489, 
       12 L. Ed. 2d 653 (1964)]. In May v. Anderson, 345 U.S. 528, 533, 97 
       L. Ed. 1221, 73 S. Ct. 840, 843 (1953), the right of a parent to a 
       child's companionship was considered to be "far more precious . . . 
       than property rights" and in In re Gibson, 4 Wn. App. 372, 379, 483 
       P.2d 131 (1971), cited with approval in In re Luscier, supra, the right 
       was characterized as even "more precious . . . than the right of life 
       itself." 
Myricks, 85 Wn.2d at 253-54 (alterations in original). The legislature codified this 

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In re Dependency of MSR and TSR, No. 85729-6

requirement in RCW 13.34.090.  Both Myricks and Luscier predated State v. 
Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986), by more than a decade, so not 
surprisingly, the court did not specifically consider what process was due under the 
United States Constitution as opposed to the Washington Constitution.  
       Since that time, the United States Supreme Court has considered whether the 
federal constitution requires the State to provide counsel to all parents facing 
termination proceedings and found it did not.  Lassiter v. Dep't of Soc. Servs., 452 
U.S. 18, 31-32, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). To analyze the question, 
the court deployed the three part Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 
47 L. Ed. 2d 18 (1976), test.  Under Mathews, the court considers "the private 
interests at stake, the government's interest, and the risk that the procedures used 
will lead to erroneous decisions."  Lassiter, 452 U.S. at 27 (citing Mathews, 424 
U.S. at 335).  The United States Supreme Court found no blanket right to appointed 
counsel, but it noted that due process could demand appointment of counsel in a 
particular case.  As the court reasoned, "in a given case [where] the parent's 
interests were at their strongest, and State's interests were at their weakest, and the 
risks of error were at their peak, it could not be said that the [Mathews] factors did 
not overcome the presumption against the right to appointment counsel."  Id. at 31.  
"But since the [Mathews] factors will not always be so distributed . . . neither can 
we say that the Constitution requires the appointment of counsel in every parental 
termination proceeding." Id. (citation omitted).  The court found that an indigent 
parent's federal due process right to counsel was sufficiently protected by a statute 

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In re Dependency of MSR and TSR, No. 85729-6

that permitted, but did not require, a trial court to appoint counsel if 
necessary, subject to appellate review.  Id.7  Despite Luak's suggestion that 

children's rights "fall outside Lassiter's framework," Suppl. Reply Br. of Luak at 2, 
we find the United States Supreme Court's discussion of the rights of parents facing 
the termination of the parent child relationship in Lassiter instructive in analyzing
the rights of a child facing the termination of the very same relationship.  
       Applying the Mathews factors considered by the Lassiter court, we first 
address the private interests at stake.  The State does not argue that the children do 
not have a liberty interest in termination proceedings.  Instead, the State argues that 
the children's interests are no greater than the parents', and thus, what is 
constitutionally adequate for the parents would be constitutionally adequate for the 
children. Courts have long recognized the cardinal right of parents to the '"custody, 
care and nurture of the child.'"  Luscier, 84 Wn.2d at 136-37 (quoting Prince v. 
Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645 (1944)).  As 
we observed in Luscier, this court has been zealous in its protection of familial 
relationships.  Id. at 137 (citing In re Hudson, 13 Wn.2d 673, 678, 126 P.2d 765 

7 Congress has established a limited statutory right of representation (though not necessarily by 
attorney)  by providing as a condition for receiving federal funds, "in every case involving an 
abused or neglected child which results in a judicial proceeding," each state is required to 
"provide a guardian ad litem . . . to represent the child."  42 U.S.C. § 5106a(b)(2)(A)(xiii); see 
also 42 U.S.C. §§ 5101-5107 (Child Abuse Prevention and Treatment and Adoption Reform 
Act).  In 1996, Congress added the court could appoint an attorney, special advocate, or both to 
obtain first hand a clear understanding of the situation and needs of the child and to make 
recommendations to the court concerning the best interests of the child. Randi Mandelbaum, 
Revisiting the Question of Whether Young Children in Child Protection Proceedings Should Be 
Represented by Lawyers, 32 Loy. U. Chi. L.J. 1-3 (2000) (citing Child Abuse Prevention and 
Treatment and Adoption Reform Act, Amendments of 1996, Sec. 107, § 107(b)(2)(A)(xi)(I)-(II), 
Pub. L. No. 104-235, 110 Stat. 3063, 3073-74 (1996). 
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In re Dependency of MSR and TSR, No. 85729-6

(1942)).  
       Children are dependent upon others to provide for their basic needs. The 
importance of family and familiar relationships to a natural and healthy childhood 
seems well established.  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 also relationships with sibling, grandparents, aunts, uncles, and other 
extended family.  See generally In re Custody of Shields, 157 Wn.2d 126, 151-52, 
136 P.3d 117 (2006) (Bridge, J., concurring).  The legislature has recognized the 
importance of these relationships in many portions of chapter 13.34 RCW.8  See, 

e.g., RCW 13.34.130 (directing courts to consider family placements when possible 
and authorizing courts to order family visitation); RCW 13.34.385 (allowing 
relatives to petition for visitation). Unlike the parent, the child in a dependency or 
termination proceeding may well face the loss of a physical liberty interest both 
because the child will be physically removed from the parent's home and because if 
the parent-child relationship is terminated, it is the child who may become a ward of 
the State.  It is the child, not the parent, who may face the daunting challenge of 
having his or her person put in the custody of the State as a foster child, powerless 
and voiceless, to be forced to move from one foster home to another.  See generally 
Amicus Curiae Br. of the Mockingbird Soc. at 5-7 (citing Kenny A ex rel. Winn v. 

8 Despite this, a Braam monitoring report indicates that 35.5 percent of foster children are 
separated from at least one of their siblings and 18.8 percent are not placed with any of their 
siblings.  Amici Curiae Br. of Columbia Legal Services and The Center for Children and Youth 
Services at 7 (citing Braam Oversight Panel, Braam Settlement Monitoring Report #10 (2011), 
available at http://www.braampanel.org/MonRptMar11.pdf.

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In re Dependency of MSR and TSR, No. 85729-6

Perdue, 356 F. Supp. 2d 1353, 1360 (N.D. Ga. 2005); Erik Pitchal, Children's 
Constitutional Right to Counsel in Dependency Cases, 15 Temp. Pol. & Civ. Rts.
L. Rev 663, 667 (2006)). Foster home placement may result in multiple changes of 
homes, schools, and friends over which the child has no control. Amicus Columbia 
Legal Services informs us that 11.3 percent of children are moved three or more 
times in the first two years in the State's care.9 Both this court and the Washington 

State Legislature have already noted that these moves themselves may cause 
children significant harm.  Braam v. State, 150 Wn.2d 689, 694, 81 P.3d 851 
(2003); RCW 74.13.310.
       Children should be free from the risk of undue harm, especially when the 
State has inserted itself into the child's life and the harm flows from that insertion.  
Braam, 150 Wn.2d at 700.  However, a child, unlike a parent, who is the subject of
a dependency or termination proceeding is at risk of being returned by the State to 
an abusive or neglectful home.  While the United States Supreme Court has 
informed us that children have no constitutional right to State intervention to protect 
them from their own parents, DeShaney v. Winnebago County Dep't of Soc. Servs., 
489 U.S. 189, 201, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), once the State does 
intervene, rights attach.  
       While the full character of these rights has yet to be articulated, we have held 
foster children have a substantive due process right "to be free from unreasonable 
risks of harm . . . and a right to reasonable safety."  Braam, 150 Wn.2d at 699.   

9 Amici Curiae Br. of Columbia Legal Services and The Center for Children and Youth Services at 
9 (citing Braam Oversight Panel, supra, at 25-26.
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In re Dependency of MSR and TSR, No. 85729-6

Foster children have the right to basic nurturing, including a safe, stable, and 
permanent home.  RCW 13.34.020. Tragically, parents sometimes inflict upon their 
own children not only neglect but verbal, physical, and sexual abuses that defy 
detailed description here.  See, e.g., State v. Lorenz, 152 Wn.2d 22, 25, 93 P.3d 133 
(2004) (parent raped and molested five year old child to produce pornography);
State v. Marshall, 144 Wn.2d 266, 274, 27 P.3d 192 (2001) (describing father who 
mistreated wolf-dog hybrids and punished son by throwing him into their pen); State 
v. Gaines, 144 Wash. 446, 456-57, 258 P. 508 (1927) (evidence suggested that a 
father murdered his daughter when she attempted to extricate herself from an 
incestuous relationship with him); see also DeShaney, 489 U.S. at 193 (father beat 
his four year old son so severely as to put him in a coma and cause tremendous 
brain damage). Parents are sometimes subjects of dependency hearings because 
they have neglected, abused, or abandoned their children.  Under these 
circumstances children whose safety and even lives may be at stake have an 
important interest in not being returned to the custody of those who will continue to 
victimize them.  We conclude that for the purposes of Mathews, the child's liberty
interest in a dependency proceeding is very different from, but at least as great as,
the parent's.  
       Under Mathews, we must also consider the interest of the State. The State's 
interest is also very strong.  In Lassiter, the United States Supreme Court described 
it as "an urgent interest in the welfare of the child."  Lassiter, 452 U.S. at 27.  No 
party in this case suggests otherwise, and we accept the proposition that the State 

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has a compelling interest in both the welfare of the child and in "an accurate and just 
decision" in the dependency and termination proceedings.  Id. 
       The third factor looks to the risk of erroneous deprivation and the value of the 
additional procedures sought.  Mathews, 424 U.S. at 335; Bellevue Sch. Dist. v. 
E.S., 171 Wn.2d 695, 704-05, 257 P.3d 570 (2011). In Lassiter, the United States 
Supreme Court essentially said, "[I]t depends."  Lassiter, 452 U.S. at 30.  It 
depends on the legal and factual complexity of the situation and on the parties' 
ability to present their cases.  Id.; see also E.S., 171 Wn.2d at 709-10 (concluding 
there was little risk of an erroneous deprivation of a child's rights by absence of 
counsel at an initial truancy hearing).  By extension, whether there is a 
constitutionally 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. 
       The State questions the extent to which appointing counsel to children would 
reduce the likelihood of erroneous proceedings or results.  See Lassiter, 452 U.S. at 
27 (citing Mathews, 424 U.S. at 335). As the State points out, the existing statutory 
scheme for termination proceedings provides counsel for the parents, a full 
evidentiary trial before a superior court judge with discovery, motions practice, 
heightened burden of proof, and appellate review.  RCW 13.34.090, .092, .100,
.110. The trial judge is authorized to appoint counsel for any child.  RCW 
13.34.100(6); JuCR 9.2(c)(1).  As of last year, children 12 years old and older must 
be informed of the right to request counsel and be asked every year whether they 

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wish to exercise that right.  Laws of 2010, ch. 180, § 2(6)(a), codified as RCW 
13.34.100(6). These procedures are significant and whether an additional lawyer in 
the proceedings would reduce the likelihood of an erroneous decision is subject to 
debate and has not been established here. 
       Luak and amici argue that the GAL and CASA volunteers inadequately
protect the children's interests because, among other things, they have an obligation 
to represent the best interests of a child, rather than the child's expressed desires.  
See, e.g., Amici Curiae Br. of Columbia Legal Services and The Center for Children 
and Youth Services at 16-17.  They argue that the child should have a voice and 
often, as here, are not permitted to have input into the proceedings because of a
perhaps misguided view that participation will be harmful to them.1 As amicus 

Columbia Legal Services notes, unlike a GAL, an attorney can maintain confidential 
communications with the child so the child is free to disclose the child's deepest 
secrets and concerns and ensure that children know with whom and in what manner 
they can communicate.  Amici also suggest that an attorney can ensure that the 
child's records are kept confidential and that the record on appeal does not include 
information that would clearly identify the child.  Amici Curiae Br. of Columbia 
Legal Services and The Center for Children and Youth Services at 12-13.  Certainly, 
there are many circumstances when counsel for a child would be extremely 
valuable. 

1 Amici reflect the debate among scholars about the role an attorney should play in dependency 
and termination proceedings.  Some strongly believe that counsel should advocate for the wishes 
of the child just as counsel would do for an adult.  Others contend that the ethical obligations of a 
lawyer should dictate that the lawyer protect the child from harm even if the child wishes to be 
returned to an abusive parent.  See generally Mandelbaum, supra, at 1, 30-31, 49.
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       The State contends that children are adequately protected by the existing 
statutory scheme.  In addition to all of the other protections, a GAL must be 
appointed unless "for good cause" shown the judge concludes it is not necessary.  
RCW 13.34.100(1). In many or most cases, the State contends, the GAL will 
represent the child's interests.  Among other things, the GAL is required to advocate 
for the child's interests and is required to inform the court of any "views or
positions expressed by the child on issues pending before the court" and to 
"represent and be an advocate for the best interests of the child." RCW 
13.34.105(1)(b), (f).  Luak and her supporting amici protest that this is inadequate 
because the GAL advocates for the GAL's perception of what is in the best interests 
of the child without regard to the child's wishes.   
       Applying the Mathews factors as the United States Supreme Court did in 
Lassiter, we conclude that under the Fourteenth Amendment to the United States 
Constitution, children have fundamental liberty interests at stake in termination of 
parental rights proceedings.  These include a child's interest in being free from 
unreasonable risks of harm and a right to reasonable safety; in maintaining the 
integrity of the family relationships, including the child's parents, siblings, and other 
familiar relationships; and in not being returned to (or placed into) an abusive 
environment over which they have little voice or control.  The State's interests are 
similar.  Balancing the three Mathews factors together, we hold that children have at 
least the same due process right to counsel as do indigent parents subject to 
dependency proceedings as recognized by the United States Supreme Court in 

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In re Dependency of MSR and TSR, No. 85729-6

Lassiter.  See Lassiter, 452 U.S. at 31.  The Washington State Constitution, of 
course, would not provide less due process protection.11  

       Judges are forced to make incredibly difficult and important determinations.  
The judge must rely upon the information provided by others.  GALs and volunteer 
CASAs are invaluable to courts.  They are often the eyes and ears of the court and 
provide critical information about the child and the child's circumstances.  We 
recognize that GALs and CASAs are not trained to, nor is it their role to, protect the 
legal rights of the child.  Unlike GALs or CASAs, lawyers maintain confidential 
communications, which are privileged in court, may provide legal advice on 
potentially complex and vital issues to the child, and are bound by ethical duties.   
Lawyers can assist the child and the court by explaining to the child the proceedings 
and the child's rights.  Lawyers can facilitate and expedite the resolution of 
disputes, minimize contentiousness, and effectuate court orders.  Randi 
Mandelbaum, Revisiting the Question of Whether Young Children in Child 
Protection Proceedings Should Be Represented by Lawyers, 32 Loy. U. Chi. L.J. 1, 
61-62 (2000).12  We recognize the different, important, and valuable roles of GALs, 

11While Luak makes this claim under both the Fourteenth Amendment and article I, section 3 of 
the Washington Constitution, Luak did not provided a Gunwall, 106 Wn.2d 54, analysis until her 
supplemental brief to this court.  Consequently, this case does not provide us with a vehicle to 
consider the entire scope of the article I, section 3 right in this context.  See State v. Wethered, 
110 Wn.2d 466, 472, 755 P.2d 797 (1988) (citing In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 
1353 (1986)).
12We note that amici argue that sometimes the GALs are opposed to asserting the legal rights of a 
child and oppose appointment of counsel because counsel may advocate for a viewpoint other 
than the GAL's view of what is in the best interest of the child.  See, e.g., Amici Curiae Br. of 
Columbia Legal Services and The Center for Children and Youth Services at 17 n.22.  This is 
certainly something a trial judge may take into consideration when deciding whether to appoint 
counsel.    
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In re Dependency of MSR and TSR, No. 85729-6

CASAs, and counsel to children in dependency and parental termination 
proceedings.  
       The question remains whether RCW 13.34.100(6) is constitutionally adequate
to protect these children's liberty interests.  Under Lassiter, the Mathews factors 
may be applied by the trial court case by case in order to determine if due process is 
satisfied in any given case.  The constitutional due process right to counsel is also 
protected by case by case appellate review.  Indeed, each child's circumstances will 
be different.  An infant who cannot yet form, articulate, or otherwise express a 
position on any relevant issue will not benefit as much from the attorney/client 
privilege or from counsel's advocacy for the right to be heard at hearing as would a 
10, 12, or 14 year old; there are, of course, many circumstances in between.  Surely, 
under appropriate circumstances, an infant would be entitled to counsel, but we use 
the infant as an example to illustrate that the Mathew's factors may weigh 
differently when applied to different children.  Under RCW 13.34.100(6), the trial 
judge is permitted but not required to consider the issue of appointment of counsel.  
When the issue is properly raised under the statute, the trial judge, subject to 
review, should apply the Mathews factors to each child's individual and likely 
unique circumstances to determine if the statute and due process requires the 
appointment of counsel.
       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 

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whether to appoint counsel to children who are subjects of dependency or 
termination proceedings.  The twins in question were not 12 years of age at the time 
of the proceedings.  No one, including Luak, asked the judge to make a 
determination whether the appointment of counsel was appropriate.  The court could 
have on its own motion appointed counsel for the children but Luak fails to provide 
any evidence in the record which would have compelled the court to do so.   We 
hold she has not met her burden to show that the trial court erred in not appointing 
counsel for her children.
                                CONCLUSION
       We hold that substantial evidence supports the trial court's finding that the 
State proved every element by clear, cogent, and convincing evidence required to 
terminate Luak's parental rights.  We further hold that children of parents subject to 
dependency and termination proceedings have due process rights that must be 
protected and, in some cases, must be protected by appointment of counsel, but that 
the right to appointment of counsel is not universal.  We further hold that RCW 
13.34.100(6) is constitutionally adequate to protect the right of counsel for such 
children. Luak has failed to meet her burden to show the court erred in failing to 
appoint counsel for her twin boys. We affirm.  

AUTHOR:
        Justice Tom Chambers

WE CONCUR:
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In re Dependency of MSR and TSR, No. 85729-6

        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

                                                         Justice Charles K. Wiggins

        Justice Susan Owens                              Gerry L. Alexander, Justice Pro Tem.

        Justice Mary E. Fairhurst

                                              23