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AGLO 1976 No. 37 - June 10, 1976
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

CHILDREN ‑- PARENTS ‑- CHILD ABUSE ‑- PRESENCE OF PARENT DURING PRELIMINARY HEARING OF CHILD ABUSE COMPLAINT

RCW 26.44.053(3) does not require that a parent or other person having legal custody of a child who has been reported as abused or neglected be made a "party" to a preliminary investigation by the state department of social and health services (including an interview with the child) conducted under RCW 26.44.050 for the purpose of verifying the substance of the report.

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                                                                   June 10, 1976

Honorable Mike Parker
State Representative, 29th District
5434 S. "I"
Tacoma, Washington 98408                                                                                                               Cite as:  AGLO 1976 No. 37

Dear Sir:

            This is in response to your request for our opinion on a question which we have paraphrased as follows:

            Does RCW 26.44.053(3) require that a parent or other person having legal custody of a child who has been reported as abused or neglected be made a "party" to a preliminary investigation by the state department of social and health services (including an interview with the child) conducted under RCW 26.44.050 for the purpose of verifying the substance of the report?

            We answer the foregoing question in the negative.

                                                                     ANALYSIS

            The question posed centers upon an interpretation of chapter 26.44 RCW, the child abuse reporting law, as amended by the 1975 legislature.  The principal purpose of this law, which originated through the enactment of chapter 13, Laws of 1965, is to provide for the protection of minors who have fallen victim to injury, sexual abuse, or negligent treatment or maltreatment by their parent(s) or other person(s) legally responsible for the child.  To facilitate this purpose, RCW 26.44.050 provides for the investigation of child abuse reports by law enforcement agencies or the department of social and health services.  The investigating agency is then required by the statute to provide a report to the child protective services section of the department of social and health services and, where necessary, refer the report to the court.  The report thus submitted may possibly form the basis for the provision of child welfare services to the child's parents, guardians or custodians pursuant to chapter 74.13 RCW1/ or the initiation of dependency  [[Orig. Op. Page 2]] proceedings pursuant to chapter 13.04 RCW.2/   Dependency proceedings may result in a removal of a parent or legal guardian's custody and control of a child.

            By chapter 217, Laws of 1975, 1st Ex. Sess., the legislature amended chapter 26.44 RCW, insofar as is pertinent, expressly to recognize and safeguard the rights of parents in the custody and control of their children.  First, RCW 26.44.010 was amended by § 1 of this act to recognize, expressly, both the importance of the bond between child and parent and the right of the state, asparenspatriae,3/ to intervene in those instances where a child has been deprived of his or her rights to minimal nurture, health and safety.  RCW 26.44.010 now reads, in pertinent part, as follows:

             [[Orig. Op. Page 3]]

            "The Washington state legislature finds and declares:  The bond between a child and his or her parent, custodian, or guardian is of paramount importance, and any intervention into the life of a child is also an intervention into the life of the parent, custodian, or guardian; however, instances of nonaccidental injury, neglect, death, sexual abuse and cruelty to children by their parents, custodians or guardians have occurred, and in the instance where a child or mentally retarded person is deprived of his or her right to conditions of minimal nurture, health, and safety, the state is justified in emergency interventionbased upon verified information; and therefore the Washington state legislature hereby provides for the reporting of such cases to the appropriate public authorities.  It is the intent of the legislature that, as a result of such reports, protective services shall be made available in an effort to prevent further abuses, and to safeguard the general welfare of such children: . . ."  (Emphasis supplied.)

            Secondly, RCW 26.44.053 was added to chapter 26.44 RCW by § 8 of chapter 217,supra.  This new section governs child abuse or neglect proceedings by providing as follows:

            "(1) In any judicial proceeding in which it is alleged that a child has been subjected to child abuse or neglect the court shall appoint a guardian ad litem for the child:  PROVIDED,  [[Orig. Op. Page 4]] That the requirement of a guardian ad litem shall be deemed satisfied if the child is represented by counsel in the proceedings.

            "(2) At any time prior to or during a hearing in such a case, when the court finds upon clear, cogent and convincing evidence that an incident of child abuse or neglect has occurred, the court may, on its own motion, or the motion of the guardian ad litem, or other parties, order the examination by a physician, psychologist or psychiatrist, of any parent or child or other person having custody of the child at the time of the alleged child abuse or neglect, if the court finds such an examination is necessary to the proper determination of the case.  The hearing may be continued pending the completion of such examination.  The physician, psychologist or psychiatrist conducting such an examination may be required to testify in the dispositional hearing concerning the results of such examination and may be asked to give his opinion as to whether the protection of the child requires that he not be returned to the custody of his parents or other persons having custody of him at the time of the alleged child abuse or neglect.  Persons so testifying shall be subject to cross-examination as are other witnesses.  No testimony given at any such examination of the parent or any other person having custody of the child may be used against such person in any subsequent criminal proceedings against such person or custodian concerning the abuse or neglect of the child.

            "(3)A parent or other person having legal custody of a child alleged to be a child subjected to abuse or neglect shall be a party to any proceeding that may as a practical matter impair or impede such person's interest in custody or control of his or her child."  (Emphasis supplied.)

            We have emphasized subsection (3) to which you made specific reference.  Unfortunately, it is somewhat broad and ambiguous insofar as its own express wording does not limit its operation to the "judicial" proceedings specifically referred to within the two subsections immediately preceding it.  Nevertheless, we are of the opinion that the right of a parent to be made a "party" is limited to such judicial proceedings (or possibly quasi judicial administrative proceedings) pursuant to which the rights of a parent or other person to the custody or control of his or her child may be determined or significantly affected; e.g., a dependency proceeding pursuant to chapter 13.04 RCW.

             [[Orig. Op. Page 5]]

            A preliminary investigation pursuant to RCW 26.44.050, although a "proceeding" in the broad sense of the word, is not a proceeding which by its nature is or may be dispositive of the "parental rights" of custody and control.  Nor may such an investigation in and of itself impair or impede such "parental rights" in a legal sense.  The sole purpose of such an investigation is and should be limited to verifying the substance of a child abuse report in order to prepare the report to the child protective services section of the department of social and health services that is required by the statute.  An interview with the alleged victim is a logical if not necessary step in the process of verifying information which may justify the state's later intervention and ultimate interference with "parental rights" for, as indicated by RCW 26.44.010,supra, and by our court as early as 1894, a case must be made before the state may interfere with a parent's right of custody and control:

            ". . . a case should be made out of which is sufficiently extravagant and singular and wrong to meet the condemnation of all decent and law-abiding people without regard to religious belief or social standing before a parent should be deprived of the comfort or custody of a child. . . ."  Lovell v. House of The Good Shepherd, 9 Wash. 419, 422, 37 Pac. 660 (1894).4/

             Furthermore, making a parent or other legal custodian of a minor reported to be a child abuse victim a party to a preliminary investigation, including an initial interview with the reported victim, could itself very well impair or impede the investigation and frustrate the primary purpose of chapter 26.44 RCW ‑ the protection of minors.  A parent or other legal custodian vested with responsibility for the care and custody of a child is thereby also in an obvious position of influence if not dominance over that child.  Assuming that making such an individual a "party" entails, at a minimum, prior notice and an opportunity to be present, such an individual then would have the opportunity by his or her presence to place the child in fear ‑ or otherwise simply discourage candid explanations on the part of the child.  We do not think it was the intent of the legislature in enacting RCW 26.44.053(3) to so inhibit the preliminary investigation of reported child abuses.

             [[Orig. Op. Page 6]]

            The immediate context in which the right of a parent or other legal custodian to be a "party" is expressed in that statute also indicates a legislative intent to limit that right to proceedings of a judicial nature which may significantly affect the parental rights of custody and control.  First, as we have earlier noted, the right is set forth in RCW 26.44.053, supra, in context with provisions expressly relating to "judicial" proceedings ‑ proceedings which by their inherent nature may establish the legal rights of individuals.  Second, the first subsection of the statute notably requires the appointment of a guardian ad litem in any judicial proceeding in which it is alleged that a child has been subjected to child abuse or neglect.  It logically follows, if not also as a matter of constitutional necessity, that a parent or other person who normally has custody and control of a child and who is indirectly, if not directly, charged with the abuse or neglect of the child should be made a "party" to such judicial proceeding.

            Without question, parents are fully entitled to due process safeguards in connection with proceedings which may deprive them of the custody of a child.  See, In re Luscier, 84 Wn.2d 135, 524 P.2d 906 (1974) (indigent parent held entitled to legal counsel at public expense in permanent deprivation proceedings);In re Gibson, 4 Wn.App. 372, 483 P.2d 131 (1971) (parent held entitled to exercise an affidavit of prejudice at the disposition phase of a dependency hearing); andIn re Myricks, 85 Wn.2d 252, 533 P.2d 841 (1975) (indigent parent held entitled to legal counsel at public expense in temporary deprivation proceedings if permanent deprivation is likely to follow).  As explained in the latter case, at pp. 253-4:

            "The right of a natural parent to the companionship of his or her child must be included within the bundle of rights associated with marriage, establishing a home and rearing children.  This right must therefore be viewed as 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'  Snyder v. Massachussets, 291 U.S. 97, 105, 78 L.Ed. 674, 54 S.Ct. 330, 90 A.L.R. 575 (1934), cited with approval in Griswold v. Connecticut, 381 U.S. 479, 487, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965).  InMay v. Anderson, 345 U.S. 528, 533, 97 L.Ed. 1221, 73 S.Ct. 840 (1953), the right of a parent to a child's companionship was considered to be 'far more precious . . . than property rights' and in In re Gibson, 4 Wn.App. 372, 379, 483 P.2d 131 (1971), cited with approval inIn re Luscier, supra, the right was characterized as even 'more precious . . . than the right of life itself.'"

             [[Orig. Op. Page 7]]

            Thus, we think it is no mere coincidence that RCW 26.44.053(3),supra, reads substantially the same as do the rules of court governing the joinder of parties necessary to a superior court's adjudication of a civil suit.  See, CR 19 which similarly provides that:

            "A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . . . (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (A)as a practical matter impair or impede his ability to protect that interest . . ."  (Emphasis supplied.)

            A preliminary interview and investigation conducted by the department of social and health services would not of itself, however, constitute a deprivation of, or interference with, the custodial interests of the parents of the child involved.  Accordingly, it is in no way inconsistent with the foregoing to conclude, as we here do for the above reasons, that your question (as paraphrased) is answerable in the negative.  The right of a parent or legal custodian to "be a party to any proceeding that may as a practical matter impair or impede such person's interest in custody or control of his or her child," as granted by RCW 26.44.053(3), does not include the right to be a "party" to a preliminary investigation by the department of social and health services, including an interview with a reported child abuse or neglect victim, conducted pursuant to RCW 26.44.050, supra, for the purpose of verifying reports of child abuse or neglect.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

ROBERT E. PATTERSON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See,RCW 74.13.031(2), which authorizes the department of social and health services to:

            "(2) Investigate complaints of neglect, abuse, or abandonment of children by parents, guardians, custodians, or persons serving in loco parentis, and on the basis of the findings of such investigation, offer child welfare services in relation to the problem to such parents, guardians, custodians or persons serving in loco parentis, and/or bring the situation to the attention of an appropriate court, or another community agency.  If the investigation reveals that a crime may have been committed, notify the appropriate law enforcement agency."

2/Accord, RCW 13.04.010(3) and (12), which, in part, define a "dependent child" as a minor:

            ". . .

            "(3) Whose home by reason of neglect, cruelty or depravity of his parents or either of them, or on the part of his guardian, or on the part of the person in whose custody or care he may be, or for any other reason, is an unfit place for such child;

            ". . .

            "(12) Who is grossly and wilfully neglected as to medical care necessary for his well-being."

3/See, Weber v. Doust, 84 Wash. 330, 333, 146 Pac. 623 (1915), wherein our court quoted from Romney v. United States, 136 U.S. 1, 34 L. ed. [[L.Ed.]]478 (1890), as follows:

            "'This prerogative ofparenspatriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties.  On the contrary, it is a most beneficent function, and often necessary to be exercised in the interests of humanity, and for the prevention of injury to those who cannot protect themselves.  Lord Chancellor Somers, inCary v. Bertie, 2 Vernon, 333, 342, said:  "It is true infants are always favored.  In this court there are several things which belong to the King as paterpatriae and fall under the care and direction of this court, as charities, infants, idiots, lunatics, etc."'"

4/See, also, In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973), regarding the quantum of proof necessary to support the permanent deprivation of a natural parent's right to care, custody and control of his or her minor child.

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