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Friday, March 2, 2012 - Page updated at 08:30 p.m.

Court rules on children, their right to attorney

By Maureen O'Hagan
Seattle Times staff reporter

Should a child be granted the right to an attorney when his parents are accused of abuse or neglect?

Most states say the answer is yes, but in Washington dependency courts, it's been a matter of debate for years. Everyone agrees a lot is at stake: Children can lose not only their parents and their home, but also be separated from their siblings, their aunts and uncles, their school, their friends. They could bounce from one stranger's home to another in foster care.

The state Supreme Court took a big step toward answering that question in a 9-0 decision Thursday. Foster children "have vital liberty interests at stake and may constitutionally be entitled to counsel," Justice Tom Chambers wrote for the court.

Advocates believe the ruling will alter the landscape of dependency court, leading judges to appoint attorneys for more and more of the thousands of children entering the system. The state, which argued against the blanket appointment of lawyers, doesn't anticipate such a sea change.

The ruling came in the case of Nyakat Luak, a King County mother who was accused of serious neglect. In one instance, she went to work and left her 4-year-old twins at home, in charge of their baby sister, the court said. A fire broke out and a social worker took them into custody. Luak physically attacked the social worker as she escorted the kids from the hospital. On other occasions, she attacked a visitation supervisor and her boyfriend.

The courts never found that Luak had abused the kids. Yet when the Department of Social and Health Services told her she was at risk of losing them unless she underwent counseling, she declined, the opinion states. Her parental rights were terminated at trial.

On appeal, Luak's attorney argued that the kids, who were 10 by the time of the trial, should have had a court-appointed attorney.

Under Washington law, kids 12 and older must be told they have a right to ask for an attorney. (It's up to the judge to decide whether to appoint one.) Younger kids generally aren't given this option, although each county has its own rules.

Some 9,000 children are in foster care at any given point, according to attorney Casey Trupin, who wrote one of 20 friend-of-the-court briefs in the case. Yet no one keeps track of how many of them get lawyers.

Sometimes, a judge will appoint a Guardian ad Litem or a lay advocate to argue for what they believe are the child's best interests. A statewide group studying the issue several years ago found some children who are removed from their homes don't have anyone — attorney, Guardian ad Litem or lay advocate — to speak for them in court.

The Supreme Court for the first time recognized that children have "at least the same due process right to counsel as do indigent parents," Thursday's ruling states.

But that due process will be decided on a case-by-case basis, according to the opinion, which lays out for the first time criteria to guide trial-court judges.

"We do think as a result of this decision more and more parents, attorneys and judges will raise the issue, given the court has confirmed constitutional rights may be at stake," Trupin said.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

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