Court upholds law on kids’ attorneys

YAKIMA – The Washington Supreme Court upheld a state law Thursday that authorizes trial judges – but doesn’t require them – to appoint lawyers to foster children in cases where a court is considering removal from families.

The court ruled that children have due process rights that must be protected, in some cases by appointment of counsel. But the justices ruled 9-0 that the right to an attorney isn’t universal, saying trial judges have “the discretion to decide whether to appoint counsel to children who are subjects of dependency or termination proceedings.”

The case stemmed from a King County trial court judge’s decision to terminate Nyakat Luak’s parental rights following a 13-day trial in 2008.

Luak, a refugee of civil wars in Sudan who immigrated to the United States as a teenager, had argued that the judge should hear from her twin sons during the trial. A judge granted a state motion to exclude the children after an appointed guardian for them said it could cause “extreme anxiety” and opposed the idea.

Luak apparently never suggested that counsel should be appointed to represent her children, but she raised the issue on appeal to the Supreme Court. Twenty groups, including law professors, filed briefs in support, espousing a universal right to counsel.

The justices noted in Thursday’s ruling that children risk losing a parent, as well as relationships with siblings and extended family, in the proceedings.

“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,” the ruling said.

The court also noted that appointed guardians are not trained, nor is it their role, to protect the legal rights of these children. However, each case must be treated individually, the justices said.

Children’s rights advocates were disappointed with the high court’s ruling, saying it differs from other decisions that have found children have a universal right to counsel, but expressed optimism that the justices still underscored what’s at stake for children in these cases.

The ruling still shows that an attorney should be denied only in rare cases, said Casey Trupin, a Columbia Legal Services lawyer in Seattle who represents foster children.