In Re Dep. Of: M.h.p.(11/11/08), P. Parvin & L. Bramlett, Res. v. State, D.s.h.s. ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
in o
STATE OF WASHINGTON, No. 68772-7-1
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES, f~„ cj~
M.H.P., a Minor,
DIVISION ONE tor-"1
Petitioners,
v.
LP '"-•
LP
PUBLISHED OPINION
PAUL PARVIN and
LESLIE BRAMLETT,
Respondents. FILED: June 9. 2014
Spearman, C.J. — In termination of parental rights cases, indigent parents
represented by appointed counsel must petition the government for public
funding for expert witnesses and other services necessary in the course of their
defense. In King County Superior Court, parents may move the court ex parte for
such funding, as well as for orders to seal the moving documents. The
Department of Social and Health Services (the State) asserts that this ex parte
motion practice improperly denies the other parties notice and opportunity to be
heard on the motions. The State contends that this practice violates GR 15,
which generally governs the sealing of court records. The State also contends
No. 68772-7-1/2
that this practice violates the right of the public to open court proceedings and
improperly applies a criminal court rule, CrR 3.1(f), to civil cases.
We conclude that the notice requirements of GR 15(c)(1) do not
adequately safeguard the due process guarantees of indigent parents involved in
termination proceedings seeking public funding for expert and other services.
Accordingly, we hold that motions for such services, including motions to seal the
moving papers, are exempt from the notice requirements of the rule. We further
hold that the trial court's orders to seal records in this case meet the standard set
forth in Dreilinq v. Jain, 151 Wn.2d 900, 93 P.3d 861 (2004), which adopts the
well-established analytical approach announced in Seattle Times v. Ishikawa, 97
Wn.2d 30, 640 P.2d 716 (1982). Lastly, we hold that the trial court was within its
discretion to adopt the CrR 3.1(f) ex parte motion procedure as the proper
method for the parents to seek public funding for expert services and orders to
seal because no other statute or enforceable court rule prescribed the mode of
proceeding. We affirm the ruling of the trial court.
FACTS
Paul Parvin and Leslie Bramlett are the parents of M.H.P. At the time of
trial, four-year-old M.H.P. had already been found dependent and removed from
his parents, based on their mental illness, substance abuse, history of violence,
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and resulting neglect of the child. The State filed a petition for termination of
Parvin and Bramlett's parental rights on August 31, 2011.
The court issued a case schedule in the termination proceeding, which
established the deadline for the exchange of witness lists and a discovery cutoff
in December 2011. After all discovery deadlines had passed, the parents brought
multiple ex parte motions for public funding for expert defense services and
orders to seal the moving papers.1 The parents never advised the court of the
applicable discovery deadlines or requested that they be extended. The record
does not disclose whether the judge who heard the ex parte motions and entered
the orders to seal was aware of the discovery deadlines in the case.
Neither of the other parties to the matter, the State and the child's Court
Appointed Special Advocate (CASA), was provided notice of these motions or
given the opportunity to be heard in opposition. The ex parte orders were only
discovered by the CASA when reviewing the legal file after the parents made a
joint motion to continue the trial date.
On March 15, 2012, the State challenged the ex parte orders in this case,
along with similar orders in four other cases involving juvenile dependency and
termination of parental rights. The State brought a motion to vacate the ex parte
1The first was brought on January 11, 2012, more than one month after the discovery
cutoff and witness disclosure deadline had passed, when counsel for the mother sought and
obtained an ex parte order for expert services and an ex parte order to seal. The second was
brought on February 2, 2012, two months after the discovery cutoff and witness disclosure
deadline had passed, when counsel for the father brought an ex parte motion to appoint a
defense expert. The third request was brought on March 10, 2012, a full three months after the
discovery cutoff and witness disclosure deadline, when counsel for the mother again sought and
obtained an ex parte order for expert services and an ex parte order to seal.
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orders on the basis of GR 15. The State also requested identification of other
cases in which this ex parte motion practice had occurred so that relief could be
sought. The State's motion was denied in a memorandum opinion on April 10,
2012, as was its subsequent requests for clarification and entry of an order
containing findings of fact and conclusions of law.
In May 2012, after the trial court's ruling, the mother sought additional ex
parte orders appointing another expert and sealing the documents supporting her
motion. As before, neither the State nor the child's CASA was provided notice of
these motions.
On August 14, 2012, two weeks before trial, the mother's counsel served
the State with a witness list that, for the first time, identified Dr. Makiko Guji as an
expert witness for the mother. The mother asserted that Dr. Guji had treated her
for the past year, and would testify that she had made good progress in mental
health treatment and that her medications controlled her symptoms. No
information verifying Dr. Guji's expected testimony was provided to the State at
that time.
On Friday, August 24, 2012, just one business day before trial was set to
start, a second previously undisclosed defense expert was identified when
counsel for the mother sent the State an evaluation by Dr. Carmela Washington-
Harvey. This was the first time the State learned that Dr. Washington-Harvey had
evaluated the mother and would be called as an expert witness.
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The State filed a motion, joined by the CASA, to exclude the testimony of
Dr. Guji and Dr. Washington-Harvey. The trial judge granted the motion. In his
ruling, the judge explained that, although the defense had the right to seek expert
funding ex parte, it still had an obligation to timely disclose the experts when it
became clear they would testify.
The State seeks review of the order denying its motion to vacate the ex
parte orders, as well as the order denying the State's motion for clarification and
entry of findings of fact.2
DISCUSSION
The issue in this case is whether indigent parents involved in termination
proceedings may move the court ex parte for orders authorizing the expenditure
of public funding to obtain the assistance of experts and to seal documents
regarding those motions without notice to other parties.
GR 15 generally governs the procedure for sealing court records. King
County has adopted Local General Rule (LGR) 15 which provides further
guidance in civil cases.3 Under CrR 3.1(f), attorneys representing indigent
criminal defendants may move the court ex parte to obtain expert or other
services necessary to the defense, along with orders to seal the moving papers;
2 The judge deciding the State's motions challenging the ex parte motion practice is
different from the judge hearing the trial. None of the trial judge's rulings are before us in this
appeal.
3 Our Supreme Court held the rule to be inapplicable to criminal cases in State v.
McEnroe. 174 Wn.2d 795, 802-03, 279 P.3d 861 (2012).
No. 68772-7-1/6
these ex parte motions are exempt from the notice requirements of GR 15. GR
15(c)(1).4
King County has adopted the ex parte motion practice outlined at CrR
3.1(f) as a means for attorneys of indigent parents to obtain expert services and
orders to seal the moving papers in dependency and termination cases. The
State asserts that this practice is improper because it: (1) unfairly denies the
other parties notice and opportunity to be heard under GR 15, (2) violates the
public's right to open proceedings, and (3) improperly applies criminal rules to
civil cases. The parents do not dispute that the ex parte motion practice at issue
in this case does not comply with GR 15. They argue however, that application of
4 GR 15(c)(1) provides:
(c) Sealing or Redacting Court Records.
(1) In a civil case, the court or any party may request a hearing to seal or
redact the court records. In a criminal case or juvenile proceedings, the court,
a party, or any interested person may request a hearing to seal or redact the
court records. Reasonable notice of a hearing to seal must be given to all
parties in the case. In a criminal case, reasonable notice of a hearing to seal
or redact must also be given to the victim, if ascertainable, and the person or
agency having probationary, custodial, community placement, or community
supervision over the affected adult or juvenile. No such notice is required for
motions to seal documents entered pursuant to CrR 3.1(f) or CrRLJ 3.1(f).
CrR 3.1(f)(1)(2) provide:
(f) Services Other Than a Lawyer.
(1) A lawyer for a defendant who is financially unable to obtain
investigative, expert or other services necessary to an adequate defense
in the case may request them by a motion to the court.
(2) Upon finding the services are necessary and that the defendant is
financially unable to obtain them, the court, or a person or agency to
which the administration of the program may have been delegated by
local court rule, shall authorize the services. The motion may be made ex
parte and, upon a showing of good cause, the moving papers may be
ordered sealed by the court and shall remain sealed until further order of
the court. The court, in the interest of justice and on a finding that timely
procurement of necessary services could not await prior authorization,
shall ratify such services after they have been obtained.
No. 68772-7-1/7
the rule to the motions at issue impinges on their due process rights to effective
assistance of counsel and a fair trial. They contend that providing notice to the
State of experts with whom they intend to consult, in advance of a determination
to call the expert as a witness, compromises their ability to prepare for trial and
causes them to be treated differently than parents with the means to obtain those
services without public assistance. For the reasons set forth below, we agree
with the parents.
I.
Resolution of this case requires interpretation of a court rule, which we
review de novo. State v. McEnroe, 174 Wn.2d at 800.
In determining the precise nature of due process rights to which parents in
termination proceedings are entitled and whether GR 15(c)(1) unduly infringes
upon those rights, we balance: (1) the private interest affected by the proceeding,
(2) the risk of error created by the State's chosen procedure, and (3) the
countervailing governmental interest which militates against the use of the
challenged procedure. In re Welfare of S.E., 63 Wn. App. 244, 249-50, 820 P.2d
47(1991).
We first consider the private interest affected by the termination
proceeding. Here, it is indisputable that the interest of the parents is great. It is
well-established that parents have a fundamental liberty interest in the custody
and care of their children, protected by the due process requirements of the
Fourteenth Amendment and article I, section 3 of the Washington State
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Constitution. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed.
645 (1944); Skinner v. State of Okla., ex rel. Williamson, 316 U.S. 535, 541, 62
S.Ct. 1110, 86LEd.2d 1655 (1942), overruled in part on other grounds in
Edelman v. Jordan, 415 U.S. 651, 652, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); in
re Dependency of J.B.S., 123Wn.2d 1, 12, 863 P.2d 1344 (1993): In re Luscier,
84 Wn.2d 135, 139, 524 P.2d 906 (1974). In termination cases, this liberty
interest gives rise to the full panoply of due process safeguards. In re Grove, 127
Wn.2d 221, 232, 897 P.2d 1252 (1995); In re Luscier, 84 Wn.2d at 137,
abrogated in part by Lassiter v. Dep't of Soc. Servs. of Durham County, N. C,
452 U.S. 18, 101 S.Ct. 2153, 68 LEd.2d 640 (1981). These safeguards include
the right to a fair trial and the right to effective legal assistance. RCW 10.101.005;
In re Welfare of J.M.. 130 Wn. App. 912, 922, 125 P.3d 245 (2005); In re Luscier,
84Wn.2dat139.5
Attorneys representing parents in termination proceedings are charged
with responding to allegations of parental deficiencies and refuting testimony
from lay and expert witnesses. Counsel is ineffective if he or she has not had the
opportunity to interview the State's witnesses, or had the opportunity to obtain
independent evaluations to rebut those obtained by the State. In re Dependency
ofV.R.R., 134 Wn. App. 573, 585-86, 141 P.3d 85 (2006).
5 In re Luscier's Welfare was decided on state and federal constitutional grounds. Insofar
as it interpreted a right to counsel stemming from the federal constitution, the decision was
overruled by Lassiter.
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The State contends that parents' interest in effective legal assistance, and
thus, a fair trial, is not implicated by the GR 15(c)(1) notice requirement.
Specifically, the State claims that defense requests for public funding for expert
services are not inherently confidential; therefore, any disclosure of such
requests incidental to notice under GR 15(c)(1) does not prejudice the parents'
rights. The State cites State v. Mendez, 157 Wn. App. 565, 238 P.3d 517 (2010);
In re Pers. Restraint of Gentry, 137 Wn.2d 378, 389, 972 P.2d 1250 (1999); and
the Public Records Act, RCW 42.56.904. This authority is distinguishable and
therefore unpersuasive.
In Mendez, 157 Wn. App. at 565, we held that attorney billing records did
not warrant post-trial sealing to protect the defendant's right to a fair trial. Our
Supreme Court reached a similar conclusion in In re Gentry, 137 Wn.2d at 378,
in which it considered the validity of post-trial orders to unseal documents related
to motions for public funding for investigative services. In each case, the
appellate court affirmed the trial court's ruling that the defendant presented
insufficiently compelling circumstances to warrant continued sealing of court
records. Mendez, 157 Wn. App. at 565; In re Gentry, 137 Wn.2d at 378. Both
cases are distinguishable because, in each case, the defense motions to
continue sealing the records were brought after the defendants had been tried
and convicted. Mendez, 157 Wn. App. at 586; Gentry, 137 Wn.2d at 389-90. The
holding in each case rests on the fact that the defendant no longer had any
interest in a fair trial to weigh against the public's right to open proceedings. Ibid.No. 68772-7-1/10
In contrast, here the defense motions to seal were brought during the course of
trial when the parents' right to a fair trial was still very much alive.6
The State's reliance on the Public Records Act is also misplaced. The
provision cited calls for public disclosure of attorney invoices, redacted as may
be necessary to protect work product. RCW 42.56.904. In considering this
authority, we cannot overlook the inherent differences between attorney invoices
and motions for public funding of expert services. Once redacted of work product,
attorney invoices are merely accounting documents, unrelated to any issue to be
determined at trial. In contrast, motions for public funding for expert witnesses
and the supporting documentation will almost certainly contain confidential
communications, work product, and clues about trial strategy. The State
suggests that this problem can be mitigated by filing of the motions under seal,
while still providing notice and opportunity to all parties. In its opening brief, the
State notes:
nothing in GR 15 prevents [parents] from filing their motions for
expert expenses, with notice to all parties but without attorney-client
and/or work product information, and asking the court prospectively
to permit the filing of a declaration under seal or that redacts those
portions containing mental impressions, theories, opinions, or legal
advice...The court could then conduct an in-camera review of the
particular pleading at issue and redact those portions that would
otherwise reveal attorney-client confidences or work product,
leaving the rest of the pleading unsealed. This would give all parties
6 Mendez and Gentry also involved different types of records (attorney billing and motions
for public funding for investigative services) than those present here. Neither type of document
implicates the rights to counsel and fair trial at issue in this case. As discussed infra., attorney
billing invoices are merely accounting documents, unrelated to any issue to be determined at trial.
Requests for funding for investigative services are much more generalized and vague than
requests for expert services.
10
No. 68772-7-1/11
the requisite notice of the motion...so they would have the
opportunity provided in GR 15 to object.
Brief of Appellant (App. Br.) at 23-24. However, assuming that the motions were
sufficiently redacted to protect confidential information and work product, it is
difficult to imagine, and the State offers no suggestion, what meaningful notice
the opposing parties would be entitled to under GR 15(c)(1). As the trial court
noted in its order, "the only notice the indigent parent could provide would be that
the parent is seeking the sealing of a motion, declaration and order without
disclosing the nature of the motion other than, perhaps, that it concerns services
for an indigent parent other than counsel; such notice is meaningless since the
only objection the government could make is a general objection." Memorandum
Opinion at 5.
Additionally, revelation of the names or expertise of potential experts
would be prejudicial to parents because, once potential experts are identified,
they are available for questioning by the State. Thus, disclosure of such
information would provide a considerable tactical advantage to the State, which
would not exist in cases involving parents with means, who need neither petition
the court to obtain expert services, nor disclose the identity of an expert witness
until they decide the expert will testify at trial.
In this case, strict adherence to the GR 15(c)(1) notice requirement would
present defense counsel with a choice between, on the one hand, competently
and diligently seeking independent expert services while risking disclosure of
confidential information and, on the other hand, forgoing their duty to obtain
11
No. 68772-7-1/12
independent evaluations in order to protect confidences and trial strategy. This
choice limits counsel's ability to be an effective advocate and impinges the
parents' right to counsel.
Next, we consider the risk of error created by enforcement of the GR
15(c)(1) notice requirement. The State argues that notice and opportunity to
object would actually improve the trial court's ability as fact finder. We disagree.
As discussed above, a notice requirement would likely chill defense use of
experts, at least in cases where the value of the expert was outweighed by the
tactical advantage of maintaining confidentiality. This result limits the relevant
information available to judges and increases the risk of ill-informed decisions
regarding parents' fitness.
Lastly, we consider the governmental interests that support notice under
GR 15(c)(1). The State has an interest in protecting the best interests of the
child. In re Welfare of Sumey, 94 Wn.2d 757, 763, 621 P.2d 108 (1980). A child's
welfare is the court's primary consideration. In re Sego, 82 Wn.2d 736, 738, 513
P.2d 831 (1973). Children involved in termination proceedings have the right to
safety and well-being, a right to speedy resolution, and a right to a permanent
home early in the process, jd.; RCW 13.34.020. Consequently, when the rights of
parents and the welfare of their children are in conflict, the welfare of the minor
children must prevail. In re Dependency of J.B.S., 123 Wn.2d 1, 8-9, 863 P.2d
1344 (1993); In re Sego. 82 Wn.2d at 738 (citing In re Day, 189 Wash. 368, 65
P.2d 1049 (1937); RCW 13.34.020.
12
No. 68772-7-1/13
The State argues that if it does not receive notice of an indigent parent's
motion for expert services, the children's interest in prompt resolution of the
termination proceedings is at risk. We disagree. Children have an interest in both
a prompt and fair resolution of the proceedings, including the right to remain with
fit parents when possible. See, In re Adoption of Lvbbert, 75 Wn.2d 671, 453
P.2d 650 (1969) ("It is the general rule that courts zealously guard the integrity of
the natural relation of parent and child"). It follows that children involved in
termination proceedings have an interest in their parents' ability to properly make
a case for preservation of their familial ties, including a meaningful opportunity to
obtain expert services without risk of disclosure to opposing parties.
The State also has an interest in the expedient resolution of cases, the
orderly administration of justice, and the careful stewardship of public funds. The
State argues that the ex parte orders at issue here unfairly increase the burden
to the State, CASA, and guardian ad litem in termination cases because they
must depose and otherwise prepare to address testimony offered by experts
even though they had no say in whether the experts were appointed. The State
does not explain why these realities of trial preparation should weigh more in our
analysis than the experts' ability to aid the fact finder in finding a resolution that is
most favorable to the best interest of the child. We cannot conclude that they do.
And, while we credit the State's argument that the ex parte practice seen here is
linked to the discovery violations, delay, and possible waste of public funds
13
No. 68772-7-1/14
evident in this case, on balance, this interest does not outweigh the fundamental
liberty interests of the parents and the best interests of the child.7
In summary, the due process protections afforded to parents seeking
expert and other services in termination proceedings and the increased likelihood
of error stemming from the chilling effect the GR 15(c)(1) notice requirement has
on the ability to seek these services outweigh the countervailing interests. We
therefore find the motions at issue in this case exempt from the rule's notice
requirements.
II.
Next, the State contends that King County's practice of granting ex parte
orders to seal violates the public's right to open proceedings. Article I, section 10
of the Washington State Constitution provides that "justice in all cases shall be
administered openly. .. ." The presumption of open proceedings and court
records extends to cases involving the termination of parental rights. See, In re
Dependency of J.A.F., E.M.F., V.R.F.. 168 Wn. App. 653, 278 P.3d 673 (2012)
(closing the courtroom to take the testimony of one witness in a termination
proceeding violates article 1, section 10). Although openness is presumed, it is
not absolute. Dreiling v. Jain, 151 Wn.2d 900, 909, 93 P.3d 861 (2004). "The
7 In this case, several ex parteorders authorizing public funding for experts were entered
well after the discovery deadline had passed and publicfunds were expended for experts whose
testimony was subsequently excluded from trial. Trial courts are admonished to consider the
established case schedule and discovery rules in determining whether to authorize public funding
for expert services. Motions that do not include this information or are made beyond the
established discovery cut-off dates should ordinarily be denied.
14
No. 68772-7-1/15
public's right of access may be limited to protect other significant and
fundamental rights, such as a defendant's right to a fair trial." Id.In determining whether sealing is appropriate, Washington courts apply
and weigh the five factors set forth in Seattle Times Co. v. Ishikawa, 97 Wn.2d
30, 640 P.2d 716 (1982). Dreiling. 151 Wn.2d at 900 (extending the Ishikawa
analysis for court closure to request to seal court records); accord, Rufer v. Abbot
Laboratories, 154 Wn.2d 530, 543-44 n.7, 114 P.3d 1182 (2005). "Generally, we
review a trial court's decision to seal records for abuse of discretion.8 King v.
Olympic Pipe Line Co., 104 Wn. App. 338, 348, 16 P.3d 45 (2000); accord Foltz
v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). However,
if the trial court's decision rests on an improper legal rule, the appropriate course
of action is to remand to the trial judge to apply the correct rule." Dreiling v. Jain,
151 Wn.2d at 907-08 (citing King, 104 Wn. App. at 369).
The State asserts that none of the Ishikawa factors was met and, thus, the
public's right to open proceedings was violated in this case. The trial court did not
address each of the factors explicitly in either the orders to seal or in its
memorandum opinion. Nevertheless, it is evident from the language of the orders
8 "An abuse of discretion occurs when a decision is 'manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.' A discretionary decision rests on
'untenable grounds' or is based on 'untenable reasons' if the trial court relies on unsupported
facts or applies the wrong legal standard; the court's decision is 'manifestly unreasonable' if 'the
court, despite applying the correct legal standard to the supported facts, adopts a view 'that no
reasonable person would take." Maverv. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132 P.3d 115(2006) (internal citations omitted).
15
No. 68772-7-1/16
that he considered them.9 Because the record indicates that all five Ishikawa
factors were satisfied, we find no abuse of discretion.
Under Ishikawa, the proponent of sealing must first make a showing of
need. Our Supreme Court stated, in part:
The proponent of closure and/or sealing must make some
showing of the need therefore.... In demonstrating that need, the
movant should state the interests or rights which give rise to that
need as specifically as possible without endangering those
interests.
The quantum of need which would justify restrictions on
access differs depending on whether a defendant's ... right to a fair
trial would be threatened. When closure and/or sealing is sought to
protect that interest, only a "likelihood of jeopardy" must be shown.
Kurtz, 94 Wn.2d at 62, 593 P.2d 1330. See Gannett Co., Inc. v.
DePasquale, 443 U.S. 368, 400, 99 S.Ct. 2898, 2916, 61 L.Ed.2d
608 (1979) (Powell, J., concurring).
Id at 37. The State argues that there was no "need for sealing" the motions in
this case. However, as discussed above, the GR 15(c)(1) notice requirement
impinges a parent's right to the effective assistance of counsel in termination
proceedings. It is clear from the memorandum opinion that the judge considered
this fact when determining to seal the records in this case. We find sufficient
9 In Rufer, 154 Wn.2d 530, our Supreme Court reviewed a decision regarding sealing of
court records. Both the Superior Court and Court of Appeals rulings in that case occurred prior to
our Supreme Court's clarification in Dreiling, 151 Wn.2d at 913-14, that Ishikawa set forth the
proper standard for sealing court records. Nevertheless, the Supreme Court upheld the lower
courts' rulings, finding that, "although Dreiling was not yet decided (and thus courts were not yet
explicitly directed to apply Ishikawa to civil proceedings), the trial court properly applied the
compelling interest test to most of the records at issue and provided a sufficient rationale for its
decision... Thus, although the trial court did not specifically apply the Ishikawa analysis... it
effectivelydid so by allowing all parties to assert their respective interests, weighing those
interests, and applying the compelling interest standard in making its determination." Rufer, 154
Wn.2d at 550-51. Accordingly, we look to the record for indicia that Judge Kessler applied the
Ishikawa analysis in this case even though he did not specifically mention the standard in his
orders or memorandum opinion.
16
No. 68772-7-1/17
showing to meet the "likelihood of jeopardy" threshold under Ishikawa. 97 Wn.2d
at 37.
The second Ishikawa factor is:
"Anyone present when the closure (and/or sealing) motion is
made must be given an opportunity to object to the
(suggested restriction)". Kurtz, 94 Wash.2d at 62, 615 P.2d
440.
kl at 38. The State contends that factor two was not satisfied because all parties
were not notified of the parents' ex parte motions and given opportunity to object.
We reject this contention for two reasons.
First, for the reasons discussed above, a notice requirement under the
circumstances in this case impinges on parents' constitutional rights to counsel
and a fair trial. Second, this Ishikawa factor is addressed to members of the
general public, giving anyone present in the courtroom the opportunity to be
heard on the proposed closure or sealing. It does not speak to the State's
particular objection here, that as a party to the litigation they were not given
notice of the motion, an objection more properly rooted in GR 15(c)(1). See
Rufer, 154 Wn.2d at 549 ("[W]e have interpreted this constitutional mandate as a
means by which the public's trust and confidence in our entire judicial system
may be strengthened and maintained.") (citing Allied Daily Newspapers of
Washington v. Eikenberrv. 121 Wn.2d 205, 211, 848 P.2d 1258 (1993)).
The third requirement under Ishikawa is that sealing, if necessary, must be
accomplished in the least restrictive means available to effectively protect the
threatened interests. Ishikawa, 97 Wn.2d at 38. The State argues that there was
17
No. 68772-7-1/18
a less restrictive means available to protect the parents' rights in this case.
Specifically, it asserts that, instead of the ex parte process used here, the court
could conduct an in-camera review of the documents sought to be sealed and
make specific findings directed at the basis for sealing or redaction of the
documents. See former KCLGR 15(c)(3) (2010).10 This proposed process is
nearly identical to that set out in CrR 3.1(f), which was applied in this case. The
difference is that under KCLGR 15(c)(3) notice is required pursuant GR 15(c)(1),
while CrR 3.1(f) is exempt from the notice requirement. Because a notice
requirement regarding the motions at issue in this case is inconsistent with
parents' due process safeguards, we disagree that the State's proposed less
restrictive alternative is a workable one.
The fourth Ishikawa factor mandates:
"The court must weigh the competing interests of the defendant
and the public," Kurtz at 64, 615 P.2d 440, and consider the
alternative methods suggested. Its consideration of these issues
should be articulated in its findings and conclusions, which
should be as specific as possible rather than conclusory. See
People v. Jones, 47 N.Y.2d 409, 415, 391 N.E.2d 1335, 418
N.Y.S.2d 359 (1979).
Ishikawa, 97 Wn.2d at 38. The record does not contain extensive findings with
respect to this factor. Nevertheless, it is apparent from the court's memorandum
10 KCLGR 15 was substantially amended during the pendency of this appeal. The new
rule, which took effect on September 2, 2013 codifies the ex parte practice used here, though it
does not mention whether defense must provide notice to the other parties of such motions. The
State did not address the revision in its Statement of Additional Authorities, filed with the Court
September 16, 2013.
18
No. 68772-7-1/19
opinion that it considered the competing interests in this case. Memorandum
opinion at 3 states two justifications for sealing:
1. the motion, declaration and order contain privileged
information including disclosures by the client to counsel and
work product...and
2. to keep from an adverse party the name of an expert who
may not be used by the defense, so that the adverse party
does not obtain an advantage that the adverse party would
not have if the parent were wealthy or if the funding came
from the budget of the attorney. . . .
These findings are an apparent effort by the court to balance the parents' due
process protections with the public's right to open proceedings. Therefore, we
find that the fourth Ishikawa factor is satisfied.
The fifth and final Ishikawa factor requires that orders to seal records be
limited in duration with a burden on the proponent to come before the court at a
time specified to justify continued sealing. Ishikawa, 97 Wn.2d at 39. The trial
court expressly limited the duration of his orders to seal in his Memorandum
Opinion at 5. Ishikawa factor five is satisfied.
The trial court did not abuse its discretion in applying the Ishikawa factors.
III.
Lastly, the State argues the trial court exceeded its authority when it
applied CrR 3.1(f), a criminal rule, to the motions at issue in a civil case. The
State contends that in so doing, the trial court created a new court rule by judicial
fiat and violated normal rule-making procedures. We review a challenge to the
authority of the court de novo. Statev.W.S.. 176 Wn. App. 231, 236, 309 P.3d
19No. 68772-7-1/20
589 (2013) (citing State v. Armendariz, 160Wn.2d106, 110, 156P.3d201
(2007).
The State cites In re Pers. Restraint of Carlstad, 150 Wn.2d 583, 80 P.3d
587 (2003), in support of its argument. In Carlstad and the companion case,
State v. McLean, the Supreme Court refused to adopt the "mailbox rule" for
determining whether a pleading was timely filed. The court concluded it would not
because the pertinent court rules defined with specificity that "[fjiling occurs when
the papers are filed with the clerk of the court[.]" Id. at 592. The court noted that
any change in the rule should be accomplished by normal rule making
procedures and not "by judicial fiat." jd. at 592, n.4.
By contrast, in this case, there is no specific civil or juvenile court rule that
establishes a procedure for indigent parents in termination proceedings to obtain
public funding for expert services. As the trial court correctly observed, where the
criminal court rules are silent on the issue at hand, we look to the civil rules for
guidance. State v. Cronin. 130 wn.2d 392, 397 (1996), State v. Clark. 129 Wn.2d
805, 815 (1996), State v. Hackett, 122 Wn.2d 165, 170 (1993), State v.
Gonzalez, 110 Wn.2d 738, 744 (1988). Here, where the civil and juvenile court
rules are silent on the issue, the trial court properly looked to the criminal rules
20
No. 68772-7-1/21
for guidance.11 Thus, Carlstad is distinguishable and not controlling.
The State also claims the court "ignored the significant differences
between juvenile dependency/termination cases and criminal proceedings." Brief
of Appellant at 17. While there are indeed differences between criminal, civil and
juvenile court proceedings, those differences have little bearing on the issues
presented in this case. The purpose of the court rules, whether civil or criminal, is
to facilitate the ability of the parties to receive a fair and just determination in the
case before the court.12 Because no civil or juvenile rule provided a process for
11 In addition, although not cited by the parties, RCW 2.28.150 provides additional
authority for the trial court to look to the criminal court rules for guidance. That statute provides:
When jurisdiction is, by the Constitution of this state, or by statute,
conferred on a court or judicial officer all the means to carry it into effect
are also given; and in the exercise of the jurisdiction, if the course of
proceeding is not specifically pointed out by statute, any suitable process
or mode of proceeding may be adopted which may appear most
conformable to the spirit of the laws.
We have held that RCW 2.28.150 "is sufficiently broad to supply any deficiency of
procedure which has been omitted in the primary grant of jurisdiction." State ex rel.
McCool v. Small Claims Court of Jefferson County Dist. Court of Port Townsend. 12 Wn.
App. 799, 802, 532 P.2d 1191 (1975). In addition, our Supreme Court has made clear
that statutes and court rules should be treated equally for the purposes of RCW 2.28.150.
In re Cross. 99 Wn.2d 373, 380-81, 662 P.2d 828 (1983).
12
SeeCR 1:
These rules govern the procedure in the superior court in all suits of a
civil nature whether cognizable as cases at law or in equity with the
exceptions stated in rule 81. They shall be construed and administered
to secure the just, speedy, and inexpensive determination of every
action. (Emphasis added.)
See CrR 1.2:
These rules are intended to provide for the just determination of every
criminal proceeding. They shall be construed to secure simplicity in
procedure, fairness in administration, effective justice, and the
elimination of unjustifiable expense and delay. (Emphasis added.)
21
No. 68772-7-1/22
indigent parents in termination proceedings to confidentially obtain funding for
expert services, the trial court properly relied on an appropriate criminal rule.
In summary, we hold that because the notice requirements of GR 15(c)(1)
do not adequately safeguard the due process guarantees of indigent parents
involved in termination proceedings when seeking public funding for expert
services and because no other civil or juvenile court rule provided a process for
seeking such funding, the trial court properly looked to CrR 3.1(f) to fashion an
appropriate process. We further hold that the trial court properly applied the
Ishikawa factors when it sealed the records at issue in this case.
Affirmed.
\Qusr" V-vJ.
J
WE CONCUR:
S^J53 Wn. App. 22, 32, 765 P.2d 307 (1988), review denied, 112
No. 68772-7-1 (dissent)
Wn.2d 1017 (1989). Children's advocates are trained to keep these cases moving so
that children will not remain long "in the limbo of foster care." AAA/., 53 Wn. App. at 33.
The secret ex parte motion practice takes a step backward. It is a formula for
unnecessary delay and expense, as the facts of this case illustrate. A judge rubber-
stamped orders authorizing payment of expert witnesses and sealed the applications
and the orders. Because the State was not made aware of the request, the judge was
unaware that the discovery deadlines for witness disclosure had long passed, trial was
imminent, and allowing the witnesses to testify would require a lengthy continuance.
The judge was acting in accordance with an established, though secret, practice.
The practice came to light only when a child's CASA (CourtAppointed Special
Advocate) accidentally discovered the sealed orders. That discovery led to the State's
motion to vacate the sealed orders, and in turn to the memorandum opinion under
review. The memorandum opinion denied the State's motion to vacate the sealed
orders and offered a justification for the secret ex parte practice.
2. The constitutional reguirement for open courts
Court records and courtrooms are presumptively open. The presumption is not
supposed to be easy to overcome. Secrecy is permitted only when a trial court makes
an individualized finding that closure is justified. State v. Chen. 178 Wn.2d 350, 355-56,
309 P.3d 410 (2013). The rule that implements the presumption of openness is GR 15.
Here, that rule was not followed.
In a civil case, any party may request a hearing to seal or redact court records
under GR 15(c). Notice of the hearing must be given to adverse parties. The court may
grant the request to seal or redact only after making findings "that the specific sealing or
No. 68772-7-1 (dissent)
redaction is justified by identified compelling privacy or safety concerns that outweigh
the public interest in access to the court record." GR 15(c)(2). The secret ex parte
procedure in King County is out of compliance with GR 15(c) in two ways. First, no
notice was given to adverse parties. Second, no individualized findings were made of
compelling concerns justifying secrecy.
The majority asserts that the notice required by GR 15(c), if sufficiently redacted
to give parents a meaningful opportunity to consult privately with expert witnesses,
would be meaningless. Majority at 11. In general, I agree that indigent parents must
have a meaningful opportunity to consult with potential expert witnesses without
disclosing to the State the names of the experts or the nature of the consultation. The
question, however, is whether a secret ex parte process divorced from the discovery
deadlines is the only way to give parents that opportunity. The answer is no. The State
and the children's advocates could have simply been notified of the date of a hearing at
which the court would consider a request by the parents for public funds in this
particular case. The State could then have informed the court about the case schedule,
which then should have caused the court to ask some questions and enter case-specific
findings before signing the order. Notice to adverse parties is not only meaningful, it is
essential because without it, the court is making a decision based on one-sided
information.
In government, where secrecy sets in, scandal follows. Public funds were
wasted in this case. The money was spent to hire new witnesses well after the deadline
for disclosure and discovery. Because of the prejudice caused by the late disclosure,
No. 68772-7-1 (dissent)
the trial judge excluded the witnesses and their work was for naught. This would not
have happened if there had been notice to adverse parties as required by GR 15.
Not only did the court order the sealing of the request for funds without giving
notice to adverse parties, the court also ignored the requirement in GR 15(c)(2) for
written findings that identify the "compelling privacy or safety concerns that outweigh the
public interest in access to the court record." The majority glides over this failing with
the rationalization that the memorandum opinion we are reviewing reflects due
consideration of the factors in Seattle Times Co. v. Ishikawa. 97 Wn.2d 30, 640 P.2d
716 (1982). The memorandum opinion does not cure the defect. It was written months
after the sealing orders. It does not mention the Ishikawa factors and does not reflect a
case-specific analysis. The purpose of the memorandum opinion is to defend the
existence of a streamlined process that categorically excludes these ex parte
applications from the constitutional presumption for open courts.
A streamlined process is likely easier for the court to administer and more
convenient for the parents, but it sacrifices openness, a value that has a higher priority.
Whether a particular application and order for public funds should be sealed, redacted,
or left open should be decided on a case-by-case basis with case-specific findings.
3. The rule-making process
The majority claims the right to borrow CrR 3.1(f), an established rule for criminal
cases, and apply it in these civil cases.
CrR 3.1(f) allows ex parte applications for money to pay defense expert
witnesses in criminal cases; the rule also permits the sealing of the moving papers upon
a showing of good cause. Motions brought under the criminal rule are exempt from the
No. 68772-7-1 (dissent)
notice requirement of GR 15(c). The 1986 comment to CrR 3.1(f) explains that it was
intended to ensure that the obligation to show a need for publicly funded services does
not force an indigent defendant to reveal defense tactics to the prosecution, a
disadvantage not experienced by a defendant who can pay for services.
Without inviting comment from advocates for children, King County Superior
Court secretly decided to apply the criminal rule in dependency and termination cases.
The memorandum opinion under review adopts the rationale of the comment to the
criminal rule. "This court concludes that CrR 3.1(f) applies to dependency and
termination cases as the Juvenile Court rules are silent on the issue at hand and the
need for a process shielding parents' needs for experts from the voyeuristic eyes of the
government is identical." (Emphasis added.)1
The need for a secret process in dependency and termination cases is not
identical to the need in criminal cases. In a criminal case, the defendant holds both the
right to speedy trial and the right to present a defense. The defendant can decide for
himself without affecting the rights of another person whether it is worth giving up his
right to a speedy trial for the extra time it takes to consult experts. But here, the child is
a party. The child's interest in bringing dependency status to an end may conflict with
the parent's desire to consult more experts. Any time a judge is asked to make a
decision that will potentially prolong the proceedings, the child's advocates must be
notified and given the opportunity to be heard.
1 In re Dependency of M.H.P., No. 11-7-02455-3, at 5 (King County Super. Ct., Wash.
Apr. 10, 2012), memorandum opinion attached to amended notice of appeal, In re Dependency
of M.H.P., No. 68772-7-I, filed July 9, 2012.
No. 68772-7-1 (dissent)
A second difference is that in dependency and termination cases, typically the
parents have already been receiving professional services for some time. A judge who
is requested to authorize funds for more professional evaluations needs objective
information about the nature and adequacy of services already rendered. The judge will
not receive such information in a secret ex parte proceeding.
In short, CrR 3.1(f) does not fit this situation and should not have been applied as
if it did. The majority recognizes that ordinarily new court rules are to be devised by the
rule-making process, not by "'judicial fiat.'" Majority at 20, quoting In re Pers. Restraint
of Carlstad. 150 Wn.2d 583, 592 n.4, 80 P.3d 587 (2003). The rule-making process
makes it possible for all persons potentially affected to participate and have their
interests considered. Because King County Superior Court implemented the secret
motion practice informally at the request of indigent parents without inviting public
comment, only the parents' interests were considered. The interests of the children and
the State were not.
The majority concludes that the superior court acted within the authority provided
by RCW 2.28.150. That statute permits a court to adopt "'any suitable process'" in the
exercise of its jurisdiction "'if the course of proceeding is not specifically pointed out by
statute.'" Majority at 21 n.11, quoting RCW 2.28.150. As discussed above, the
appropriate course of proceeding is already pointed out by GR 15. The superior court
exceeded its authority by adopting an unsuitable criminal rule for prospective application
in all dependency and termination cases without going through a formal, open rule
making process.
No. 68772-7-1 (dissent)
The majority "admonishes" the trial judges who issue the secret orders to do a
better job of coordinating with established case schedules. Majority at 14 n.7.
Admonishment is an ineffective remedy. The secret practice needs to be ended.
I would reverse the order denying the motion to vacate and hold that GR 15(c)
and Ishikawa apply to requests for public funds for expert witness services in
dependency and termination cases.
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