[No. 60528-3-I. Division One. January 12, 2009.]
Robert C. Boruchowitz (of Ronald A. Peterson Law Clinic), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Bonnie J. Glenn and Shelby L. Swanson, Deputies, for respondent.
Sarah A. Dunne and Nancy L. Talner on behalf of American Civil Liberties Union of Washington, amicus curiae.
Chorisia J. Folkman and Brent M. Pattison on behalf of Team Child, amicus curiae.
Authored by Anne Ellington.
Concurring: Mary Kay Becker, Ronald Cox.
¶1 ELLINGTON, J. -- A proceeding to declare a child truant affects the child's rights to liberty, privacy, and education. Due process requires that the child be afforded counsel.
BACKGROUND
Truancy Law and Procedure
¶2 In Washington, school is compulsory for children aged 8 to 18. ¶3 The juvenile court must then schedule a hearing to consider the petition. ¶4 Of particular note here, the statute provides that "[t]he court may permit the first hearing to be held without requiring that either party be represented by legal counsel, and to be held without a guardian ad litem for the child." ¶5 If allegations in the petition are proved by a preponderance of the evidence, the court may enter an order "assuming jurisdiction to intervene" ¶6 The district must report any further unexcused absences to the court. FACTS ¶7 In March 2006, when E.S. was 13 years old, the Bellevue School District (District) filed a truancy petition against her. The juvenile court duly scheduled an initial hearing. Present were E.S., her mother, the District's truancy coordinator, and a Bosnian language interpreter. The court began by asking the truancy coordinator whether this was an agreed matter. He indicated it was. The court advised E.S. and her mother that they had a right to a hearing, described what it would entail, and asked whether each "agree[d] that there should be a court order in place." ¶8 The court signed an order requiring E.S. to attend school on a regular basis. The order provided that "[f]ailure to obey this Court order will subject the parties to sanction which may include monetary fines, community service, or detention." ¶9 E.S. continued to miss school. In November 2006, the District brought a motion for contempt. E.S. was appointed counsel. The court found her in contempt and sanctioned her with two days of work crew, which could be purged if she completed an essay describing how she could be successful in school. At a January 2007 review hearing, the court found she had not purged her contempt and ordered her to enroll at an alternative school and to have no further absences. E.S. had not purged her contempt by the next hearing, and the court ordered her to attend school with no further absences and to collect her missing homework, or she would be placed on electronic home monitoring. In March 2007, the court directed E.S. to attend school and to attend mental health counseling. At a second hearing that month, the court ordered E.S. to attend school with no unexcused absences or tardies, and gave notice that failure to comply would result in a sanction of electronic home monitoring. ¶10 In May 2007, E.S.'s substitute counsel moved to set aside the truancy finding, contending both that E.S. should have been provided counsel at the preliminary hearing and that the original petition was legally insufficient. DISCUSSION [1] ¶11 E.S. and amici Mootness [2] ¶12 This matter is technically moot, but we consider it as a matter of substantial public interest. Due Process Right to Counsel ¶13 This issue has arisen before, under somewhat different circumstances. We recently decided In re Truancy of Perkins, ¶14 Relying principally on the fact that a court may not order a child into detention at the initial hearing, the Perkins court upheld the statute. The focus of our opinion was whether a child's interest in avoiding a court order to attend school, change schools, or be referred to a community truancy board was comparable to the interests at stake in civil cases in which the right to counsel has been recognized. [3] ¶15 The Perkins court did not undertake (and was apparently not asked to undertake) the Mathews v. Eldridge Interests at Stake ¶16 Truancy hearings are the only type of proceeding, civil or criminal, in which a juvenile respondent is not provided counsel. [4] ¶17 Liberty. A truancy order is a necessary and direct predicate to a later finding of contempt and imposition of a detention sanction. At the point of contempt proceedings, no challenge to the original truancy finding is available. [5, 6] ¶18 In any kind of case, a party who disregards a court order may be subject to contempt sanctions. ¶19 The District takes the position that there is no difference, for purposes of due process, between a child support proceeding and a truancy hearing. We think, however, there is a critical distinction. In a child support suit--indeed, in all other proceedings in which parties represent themselves before the court--the parties are adults. Adults are legally independent and are presumed capable of understanding the proceedings. Adults have the right to retain counsel, and should they decide not to do so, they are presumed able to represent their own interests. Indeed, adults representing themselves are held to the standard of an attorney. [7] ¶20 In a truancy proceeding, on the other hand, the respondent is a child, who may be as young as 8 years old. A child is neither independent nor capable, in fact or in law. Children "lack the experience, judgment, knowledge and resources to effectively assert their rights." ¶21 These disadvantages are not mitigated by the presence of the child's parent in truancy proceedings. In many cases, the child and parent may have opposing interests. Indeed, the statute allows a parent to initiate the proceeding. ¶22 The law treats children differently from adults for very good reasons. Expecting a child to represent herself in truancy proceedings is to expect her to exercise judgment the law presumes she does not have, in a proceeding that may lead to her incarceration. [8] ¶23 When a party lacks the capacity to represent his or her interests in proceedings brought against them by governing authorities, due process requires that counsel be appointed. Our Supreme Court made this clear in two cases involving lawyer discipline, holding that when an attorney is not mentally capable of representing himself or herself in such proceedings, due process requires that the attorney be represented by counsel. ¶24 For purposes of due process, the issue is whether the party has the mental capacity to represent his or her interests before the court. Children do not have that capacity. And in all other juvenile proceedings, the child's interests are protected by counsel. [9] ¶25 Privacy. Children have a right to bodily privacy. [10] ¶26 Education. The purpose of the truancy proceeding is to enhance and protect the child's right to education, so it may seem counterintuitive to suggest that the proceeding may in fact threaten that right. But the statute permits the court to order the child to change schools or to enroll in an alternative education program. ¶27 Risk of Error and Value of Additional Safeguards. The District contends there is little risk of error because of the safeguards in the prefiling process, to wit, the requirement that the District take steps to address the child's absences. ¶28 This argument rests upon several unsupported assumptions: first, that the school has the time, resources, and ability to take effective steps to address the child's absences such that health issues or other special circumstances will be identified; second, that such steps will actually be taken in every case; and third, that these steps will be effective before the child's absences reach the number triggering the petition requirement. ¶29 The steps to address the child's absences from school are a necessary predicate to the truancy petition. ¶30 Most importantly, the prefiling requirements provide no protection against error after the petition is filed. In that regard, the District argues that the informality of the hearing minimizes any risk of error by allowing the parties to simply give their version of the story. This is a great deal to expect of a child. A courtroom is an intimidating place, even in less formal juvenile proceedings. Confronted and opposed not only by her school district but in many cases her own parent, a child is unlikely to be a good advocate for herself, regardless of formality. Children cannot be expected to understand words like "contempt" or "sanctions." (Below, the court made no inquiry as to whether E.S. understood those ideas.) Further, crowded calendars leave the court little time for exploring the circumstances of each case. ¶31 Moreover, the underlying cause of a child's truancy may be something she is unwilling to explain to strange adults in open court despite informal hearing procedures. Family issues involving illness, domestic violence, substance abuse, poverty or homelessness, or issues at school involving abusive adults or bullying students are not subjects children can be expected to tell the court about, even if the child recognizes their relevance to her attendance record. ¶32 Finally, the District suggests children are at no disadvantage because "the school district is not represented by an attorney, but usually a school district employee." ¶33 This is not a portrait of equivalent advantages before the court. ¶34 The statute requires that before the court's intervention may be invoked, there will be a meaningful exploration of, and attempt to address, the causes of a child's truancy. Nothing in the present procedure ensures this will happen. The risk of error is therefore high, and the consequences of error include lasting stigma and potential incarceration, as well as deepened alienation on the part of the child. [11] ¶35 Countervailing Government Interests. Cost is the only countervailing interest identified by the District, which contends that appointing counsel for thousands of truancy hearings would impose an extreme burden on school districts. [12] ¶36 The initial truancy hearing provides no procedural safeguards to protect the child's rights, and it is undeniable that the child cannot be expected to protect them herself. Errors in the proceedings are therefore likely, and the risks to the child's liberty interests are great. Representation is required to ensure that the child understands her rights and the consequences of a truancy finding, that the district is held to its statutory duties and standard of proof, and that the child can explain her circumstances and respond to any suggested changes in her education program. CONCLUSION ¶37 A child's interests in her liberty, privacy, and right to education are in jeopardy at an initial truancy hearing, and she is unable to protect these interests herself. Due process demands she be represented in the initial truancy hearing. Because counsel was not provided in this case, we vacate the finding of truancy. ¶38 Reversed. BECKER and COX, JJ., concur.