In re the Welfare of T.B.

Armstrong, J.

¶42 (dissenting) — The majority concludes that the guardian ad litem’s (GAL) investigation here “sets the minimal standards for a GAL investigation under the version of former RCW 13.34.105 in effect at the time of this termination hearing.” Majority at 616. I disagree.

¶43 Termination proceedings involve the difficult task of balancing the fundamental liberty interest that parents have in the care and custody of their children and the *617 State’s obligation to protect the health and safety of the children. In re Welfare of C.B., 134 Wn. App. 942, 951 , 143 P.3d 846 (2006). As such, termination proceedings are not to be taken lightly. In re Welfare of Bennett, 24 Wn. App. 398, 401 , 600 P.2d 1308 (1979).

¶44 The GAL’s investigation and report are intended to ensure that the trial court’s termination decision is in the “best interests of the child.” RCW 13.34.190(2). The State must present “ ‘clear, cogent and convincing evidence’ ” in order to permanently deprive a parent custody of his or her children. In re Dependency of K.R., 128 Wn.2d 129, 141 , 904 P.2d 1132 (1995) (quoting RCW 13.34.190(1)). “When adjudicating the ‘best interests of the child,’ we must in fact remain centrally focused on those whose interests with which we are concerned, recognizing that not only are they often the most vulnerable, but also powerless and voiceless.” In re Parentage of L.B., 155 Wn.2d 679 , 712 n.29, 122 P.3d 161 (2005). Thus, in a termination proceeding, the GAL must “represent and be an advocate for the best interests of the child.” Former RCW 13.34.105(l)(e) (2000). In this role, the GAL should investigate and collect relevant information about the child’s situation, bring forward any changes in circumstances, and also “make recommendations based upon an independent investigation regarding the best interests of the child.” Former RCW 13.34.105(l)(d) (emphasis added).

¶45 Here, the GAL had little direct contact with the children or their caretakers. He talked with T.B. once, a year before the hearing, but the discussion had “no real substance” because of T.B.’s age. VRP at 145. The GAL also talked once with Leslie Aho who was caring for T.B. in Florida. The GAL did not talk with any other adult who had continuous contact with T.B. in Florida. The GAL talked with D.B. twice, also more than a year before the hearing. And although the GAL talked with D.B.’s caretaker 5 to 10 times before the hearing, he did not talk with any other adult who had continuous contact with D.B. Moreover, because the GAL filed no reports of his investigation, the *618 trial court had little information as to the substance of the GAL’s talks with the two adult caretakers.

¶46 The GAL did not base his recommendation on an independent investigation; rather, he based it on the findings of the DSHS worker who began the proceedings. In doing so, the GAL violated GALR 2(b), which states, “A guardian ad litem shall maintain independence, objectivity and the appearance of fairness in dealings with parties and professionals, both in and out of the courtroom.” See also In re Dependency of J.B.S., 122 Wn.2d 131, 139 , 856 P.2d 694 (1993) (“In a dependency proceeding, it is the duty of the guardian ad litem to represent the best interests of the child and advise the court fairly.” (citing N. Am. Council on Adoptable Children v. Dep’t of Soc. & Health Servs., 108 Wn.2d 433, 438 , 739 P.2d 677 (1987); In re Welfare of Harney, 19 Wn. App. 85, 87 , 574 P.2d 395 (1978))).

¶47 Moreover, a GAL should “become informed about the facts of the case” and “contact all the parties.” GALR 2(g); see former ROW 13.34.105(1). Implicit in the rules establishing a GAL’s duties is the concept that the investigation must be not only thorough, but also up-to-date. Here, the GAL failed both standards. The GAL spoke with D.B. only twice, more than a year before the hearing, and to T.B. only once, also more than a year before the hearing. Further, he last spoke with D.B.’s guardian two or three months before the hearing and he had only one conversation with T.B.’s guardian, five to nine months earlier.

¶48 The majority relies on In re Dependency of O.J., 88 Wn. App. 690, 696 , 947 P.2d 252 (1997), in concluding that although the GAL’s investigation was “ ‘not the most thorough,’ ” any error was harmless because “there is no reason to believe that the trial court’s decision would have differed without the GAL’s recommendation.” Majority at 616 (quoting Br. of Resp’t at 26). The problem with this analysis is that we have no way of knowing what a thorough, up-to-date, independent investigation would have shown. In In re Dependency of O.J., 88 Wn. App. at 693 , the court failed to appoint a GAL. Nonetheless, the court held the error *619 harmless because the trial court heard testimony from the minors’ teachers, therapists, caseworkers, and a foster mother. In re Dependency of O.J., 88 Wn. App. at 696. The court concluded that the testimony from these witnesses was “so strong that we are confident that a guardian ad litem would have reached the same conclusion as the therapists and the court.” In re Dependency of O.J., 88 Wn. App. at 696. We cannot reach the same conclusion because the trial court heard nothing from the adults who were active in the minors’ daily lives. In re Dependency of O.J., 88 Wn. App. at 696.

¶49 Although the evidence here was certainly sufficient to terminate the mother’s parental rights, the order of termination also terminated the children’s rights to a parental relationship with their mother. Unfortunately, the order was entered without any independent advocacy for the “powerless and voiceless” children. In re Parentage of L.B., 155 Wn.2d at 712 n.29. I would reverse and remand for the trial court to appoint a different GAL to thoroughly and independently investigate the children’s circumstances and report to the court what decision would best serve their interests.