BY MEI SHIH
Clients from all backgrounds turn to us, their attorneys, for advice.
But what if you are a tax attorney and your client tells you that her newborn grandchild was born with drugs in his system and Child Protective Services (CPS) is investigating the family? If you are a bankruptcy attorney, what if your client tells you he’s been caring for his niece for the last few years, her parents are in and out of her life, and he wants “legal” authority to be able to make decisions for her? Maybe you are in-house counsel for a corporation and your neighbor calls you in a panic because her best friend just passed away, leaving a minor child, and the child’s father is absent from the child’s life. What would you do?
As lawyers, we are taught to issue spot. This article is designed to help you do just that so you can make an appropriate referral as needed.
WASHINGTON’S UNIFORM GUARDIANSHIP, CONSERVATORSHIP, AND OTHER PROTECTIVE ARRANGEMENTS ACT
In 2019, the Washington Legislature adopted a modified version of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), effective January 2021, codified in Chapter 11.130 RCW. Article 2 of the Act (RCW 11.130.185 – .260) governs guardianships for minors and gives the court the authority to appoint a guardian for a minor who does not have a guardian:
[If] the court finds the appointment is in the minor’s best interest and:
(a) Each parent of the minor, after being fully informed of the nature and consequences of guardianship, consents;
(b) All parental rights have been terminated; or
(c) There is clear and convincing evidence that no parent of the minor is willing or able to exercise parenting functions as defined in RCW 26.09.004.
RCW 11.130.185. [The shorthand “Article 2” will be used throughout to refer to the portions of Washington’s version of the UGCOPAA governing guardianships for minors.]
The purpose of Article 2 is to provide permanency for children who cannot be safely returned home or to the care of a parent. This new law does not affect the validity of any court orders issued under Chapter 26.10 RCW, Non-Parental Actions for Child Custody (NPC), which was repealed in 2020, but any modifications or terminations of those court orders must now be litigated under the new law.
To determine who had physical custody of the minor, the court, under the NPC, appointed a “stand-in parent” or a third party to care for the minor when the court found parental unfitness or detriment to the child’s growth and development.
The UGA was drafted by the Uniform Law Commission, in part, to attempt to create a more uniform set of laws and practices in the United States. Washington is just the second state to adopt a comprehensive guardianship statute such as this one. Under the new Act’s provisions regarding minors, there is a different court process, expansion of rights for minors, and a high standard of proof required before the court will appoint a guardian.
MINOR GUARDIANSHIP FROM A FAMILY LAW PERSPECTIVE
It is difficult to understand the new minor guardianship provisions in Article 2 without having a background in family law. These new provisions rely on definitions and statutes that family law lawyers in Washington are familiar with and rely on daily under Title 26 RCW, Domestic Relations.
Under Article 2, the proposed guardian must show that the parent(s) are not willing or able to exercise the functions necessary for the care and growth of the child as defined in RCW 26.09.004. For the court to order a “full guardianship” of the child or limit the parent(s)’ decision-making authority and residential time with the child, the court must find that there are RCW 26.09.191 restrictions and limitations. Those restrictions and limitations are well known and understood by family law lawyers. They include issues like abandonment, domestic violence, or substance abuse. The court must find by “clear and convincing evidence” that the conditions defined in RCW 26.09.191 exist before it limits a parent’s right to oversee the care, custody, and control of their child.
What is lacking in the new Act are definitions of the terms “willing” and “able.” And since there is not yet any case law that offers guidance, practitioners under this new statute need to do some creative lawyering.
When there is no statutory definition of a term, the court will give the term its plain and ordinary dictionary definition. In a recent trial, I relied on plain dictionary definitions to support my arguments that a parent failed to meet the established criteria of a parent who is willing or able to exercise those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child.
I argued that a parent was not “willing” to establish a loving, stable, consistent, and nurturing relationship with the child because the parent had not had any contact with the child in over six years. I also argued that the parent had a documented unwillingness to have a relationship with the child or to attend to the child’s daily needs.
That strategy prevailed and the court appointed my client as the guardian of her grandson, but some guidance from appellate courts will be welcome to the lawyers and the judges hearing these cases.
Although both Chapter 26.09 RCW and the new Article 2 protect the best interest of the child, the intent of Article 2 is to protect children who cannot safely be returned home to the care of a parent. A guardianship under Article 2 may be terminated upon showing that the basis for the appointment of a guardian no longer exists. RCW 11.130.240(1)(b).
MINOR GUARDIANSHIP FROM A DEPENDENCY LAW PERSPECTIVE
I began my legal career in California as a dependency lawyer representing the primary offending parent when a child was removed by CPS from the home because of alleged child abuse or neglect. Applying my dependency law background, together with my knowledge of family law, has proven helpful in arguing cases under Article 2, because when we address the best interest of children, there is some commonality with dependency, family law, and guardianship. Namely, something has prevented the parent(s) from taking care of their kids, or the parent(s) substantially failed to perform their parenting functions.
In dependency law, a court case is filed and managed by CPS and the court. If the parents do not complete their reunification services (demonstrate change), then CPS may terminate parental rights and the child is either placed for adoption or the case moves into a long-term guardianship situation. In guardianships, parental rights are not terminated but suspended until the parents can show they are willing and able to exercise their rights again.
In Washington, if CPS steps in, they can investigate and introduce reunification or in-home services without filing a dependency case. Or a family member or person interested in the child’s welfare can file a guardianship case, in which case the parents retain their rights without CPS involvement. Despite the complexities of the process, guardians help reduce the number of children placed in the foster care system. Without guardians, CPS may need to take action and place children in foster care; foster children report a higher rate of trauma11 www.csp.edu/publication/trauma-children-in-foster-care-a-comprehensive-overview/. compared to children not in the foster system, and it is believed that guardians can protect against these outcomes because they are usually individuals the child already knows and trusts.
HOW THE NEW GUARDIANSHIP PROCESS PRIORITIZES CHILDREN
Since this is new territory for all of us, it is important to know the legislative intent behind the UGCOPAA/Article 2. The UGCOPAA as drafted by the Uniform Law Commission was intended to create a consistent set of rules for all or most states. Washington is at the forefront of adopting this law, so practitioners here are faced with a lot of unknowns. What we do know is that children must be prioritized, and the new law gives older children expanded rights to be involved in this process.
Teens 12 years old and older now have the right to file a minor guardianship petition and choose a trusted guardian to be appointed for them. RCW 11.130.190(1). If they are the subject of an action, teens have a right to an appointed attorney and to be involved in every step of the process. Under the new law, teens must be served with the petition and have the right to appear at all hearings. RCW 11.130195(1)(a)(i) & (2). Even if the teen does not want an appointed attorney, a court-appointed “court visitor” must ascertain their position and inform the court whether the teen agrees with the guardianship or not. RCW 11.130.195(4).
Under the UGA, if the parents are the responding parties, they may also request that the court appoint an attorney to represent them in these matters. See RCW 11.130.200(5)(circumstances under which court “must” appoint an attorney); RCW 11.130.200(7) (circumstances under which court “may” appoint an attorney). It is unclear if the courts will appoint an attorney for the parent of the child if they are the moving party (i.e., in a modification action).
Washington attorneys and judges are left grappling with the significant change that the new guardianship provisions have wrought, and we are operating with full knowledge that our actions will affect children. How it will affect them is what I am passionate about.