IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Dependency of: )
) No. 57862-6-I
T.L.G., b.d. 04/20/99, and ) (consolidated with 57863-4-I,
C.L.G., b.d. 05/22/00, ) 57864-2-I, 57865-1-I, 58560-6-I &
) 58561-4-I)
Minor Children. )
) DIVISION ONE
BONNIE LEE DUNLAVY and )
WILLIAM KEITH GILFILLEN, )
)
Petitioners, )
)
vi. )
)
STATE OF WASHINGTON, ) FILED: January 16, 2007
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, )

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)
Respondent. )
________________________________)

AGID, J. -- William Keith Gilfillen and Bonnie Lee Dunlavy challenge the

juvenile court's suspension of visitation with their dependent children on two grounds:

(1) RCW 13.34.136(1)(b)(ii) entitles them to visitation absent a showing of risk to their

children's health, safety or welfare; and (2) visitation cannot be used as a sanction for

failure to comply with court orders or services.

Visitation between these parents and their children was suspended in 2002 after

an altercation between Gilfillen and a security guard during a scheduled visit in the

presence of T.L.G. The legislature amended RCW 13.34.136(1)(b)(ii) in 2004,

strengthening parents' rights to visitation with their dependent children. The statute

requires the agency to encourage maximum parent and child contact and prohibits it

from limiting or denying visitation as a sanction or without a showing of risk of harm.

The record in this case establishes that neither the State nor the court below attempted

to structure supervised visitation of any kind. There is no proof that there is a risk to

these children in all visitation settings. And it appears from the record that visitation

remains suspended because the parents did not obtain all court-ordered services even

though the statute prohibits a court from limiting or denying visitation for failure to

comply with orders or services. Thus, the juvenile court misapplied RCW

13.34.136(1)(b)(ii) when it denied all visitation based on the parents' failure to obtain

court-ordered services by failing to find there is a current risk of harm to the children in

all visitation settings.

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Gilfillen also challenges the orders prohibiting him from disseminating any

documents, reports and orders without permission of the court and notice to the

Department of Social and Health Services (DSHS) and his children's volunteer

guardian ad litem (VGAL). Nothing in the record indicates why such a broad order is

necessary, although there are references to protecting the children's privacy. In light of
the published case, In re Dependency of T.L.G.,1 which reversed a termination order

against the parents, it is unclear from the record why such a broad order, which seems

to include Gilfillen's own medical records, is necessary. We reverse.

1 126 Wn. App. 181, 185, 108 P.3d 156 (2005).

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FACTS

This is Dunlavy's and Gilfillen's second appeal to this court. In May 2005, we

decided In re Dependency of T.L.G. We reversed an order terminating their parental
rights and remanded for further proceedings.2 This appeal follows the dependency

hearings on remand.

William Keith Gilfillen and Bonnie Lee Dunlavy are the parents of daughter

T.L.G. (born 4/20/99) and son C.L.G. (born 5/22/00). C.L.G. was born with serious

medical problems. Both parents entered into voluntary contracts for assistance with the

Department of Social and Health Services (DSHS), which provided for public health

nurse visits, therapeutic day care for both children, and an intensive family preservation
services (FPS) therapist.3 In August 2001, Dunlavy and Gilfillen refused to sign further

voluntary contracts. DSHS filed a dependency petition on both children and removed

them from the home because of three concerns: C.L.G. was exhibiting significant

growth problems, T.L.G. was exhibiting signs of emotional delay, and the family was
facing eviction.4 The initial shelter care order entered August 2001 provided

supervised visitation once a week at the DSHS office in Everett and required the

parents to get psychological evaluations and training to care for C.L.G.'s medical
needs.5 In November 2001, Dunlavy and Gilfillen moved to an appropriate home on

Whidbey Island, where rooms were made ready for the children's return.6

2 Id.
3 Id.
4 Id. at 186.
5 Id. at 193.
6 Id.

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January 2002 Dependency Order

In January 2002, Dunlavy and Gilfillen signed an agreed dependency order,

acknowledging their children's special needs and their own need to address problems
with anxiety and depression.7 The order granted weekly supervised visitation between

T.L.G. and both parents for a minimum of two hours. The court gave DSHS and the

children's VGAL the discretion to liberalize Dunlavy's visits with both children. It also

granted Gilfillen supervised visitation with C.L.G. once paternity had been established.

Later that month, there was a verbal and physical altercation between Gilfillen
and a security guard at the DSHS office while Dunlavy was holding T.L.G.8 After this

incident, all visitation was suspended on the grounds that Gilfillen and Dunlavy needed

anger management treatment, and the visitation supervisor refused to continue to work
with the family.9

April 2002 Dependency Disposition

In April 2002, the court suspended visitation and entered a disposition order

requiring parenting classes and a psychological evaluation with a parenting component
for both parents.10 The order did not include findings that visitation would harm the

7 Id. at 193-94.
8 Id. at 194. The incident apparently arose because C.L.G. was not brought to the visit.
9 Id.
10 The dispositional order provided:
"The mother and father shall complete a DSHS and [guardian ad litem]
and defense approved psychological evaluation with a parenting component
and follow all recommendations. . . . DSHS shall make a referral within two
weeks of the date the evaluator is agreed upon [by the parties]. The evaluation
of the father shall also address medication issues. The psychological
evaluations shall address the issues whether an anger management evaluation
and/or treatment is recommended."
Id. at 194 n.32 (first alteration in original).

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children. Both parents completed parenting classes at Catholic Community Services.11

But the psychological evaluations were delayed because the parties could not agree on

a service provider and the parents had problems getting from Whidbey Island to the

evaluator's office.

July 2003 Order

In July 2003, the court struck the requirement that the evaluations contain a

parenting component, but ordered the evaluator to determine whether a parenting
component was necessary.12 Visitation remained suspended, but the court stated it

would "reconsider the issue of visitation upon receipt of the parents' psychological

evaluations."

Termination Proceedings and March 2005 Appeal

January 2, 2004, the court terminated Gilfillen and Dunlavy's parental rights to
both children.13 In In re Dependency of T.L.G. we reversed the termination on March 7,

2005, holding that DSHS failed to (1) identify parental deficiencies that needed to be

corrected or connect the parents' mental health deficiencies to parental deficiencies,

(2) prove that family reunification could not occur within the foreseeable future, and (3)

establish by clear, cogent and convincing evidence that the parents were offered all

reasonably available services necessary to correct parental deficiencies and that there
was little likelihood conditions would be remedied in the near future.14 We noted that

there had been no parenting evaluation, no testimony about the parents' mental health

11 Id. at 194.
12 Id. at 195.
13 Id. at 196.
14 Id. at 203-06.

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issues, and no mental health services or treatment offered over the two years of the

dependency.15 We also rejected the agency's argument that Dr. Bruce A. Olson's

testimony that each parent needed three to five years of intensive treatment meant that
it would be three to five years before the parents could care for their children.16 We

concluded that "DSHS has not established that family reunification cannot occur within
the foreseeable future" and remanded for further proceedings.17

June 2005 Dependency Review Hearing

We issued the mandate on April 22, 2005, and the case returned to Snohomish

County Superior Court as a dependency. On June 8, 2006, both parents requested the

immediate return of their children or, alternatively, visitation. During the hearing, they

suggested supervised visits with a therapist who could prepare the children to see them

and provide reconciliation therapy to their family. The State asked the court to require

that Dunlavy and Gilfillen make substantial gains and show a period of psychological

stability before resuming visitation. The children's newly appointed VGAL stated that

visitation was not appropriate until the parents completed services and opined that

T.L.G. and C.L.G. would benefit from counseling to prepare them for seeing their

parents. The VGAL said the children no longer remembered their parents because of

their long separation.

The juvenile court again denied visitation because "the same concerns that led

to the dependency are still in existence and have not been remedied . . . . [T]he parents

need to take some action to make it clear that they're taking steps toward addressing

15 Id. at 205.
16 Id.
17 Id. at 203-06.

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the deficiencies that were identified in the dependency previously that would lead the

Court to believe that they're working towards, and willing to work towards unification."

The court did not address our holding that Gilfillen had not been offered the services
needed to address his mostly unidentified parental deficiencies.18 The court did not

order therapeutic counseling as requested by the parents. The written order stated:

Given the complete lack of contact between the father and the children for
over three years, and the specific recommendations made in Dr. Olson's
evaluation that demonstration of an extended period of psychological
stability would be a necessary prerequisite for consideration of even a
parenting assessment, visitation shall remain suspended between the
father and the children at this time. Such is necessary to protect the
children's health, safety and welfare.[19]

Neither parent sought discretionary review of the June 2005 order.

August 2005 Dependency Review

At the August 30, 2005 review hearing, the State argued visitation was

"premature" because the parents had not "engaged in services in a meaningful

manner." The VGAL stated visitation should be denied because the parents had not

pursued services adequately. Again, the court denied the parents' motion for visitation.

In its oral ruling, the court stated:

So the fact that the parents are not fully engaged in services is not
just in and of itself reason to not have visitation as some form of
punishment. But I believe that it does indicate that the -- there are
problems here that need intervention before these children can safely
resume contact with their parents, and that hasn't occurred yet. And as a
result I think that, and I find that the visits between the parent and the two
children are not in the children's best interest at this time and I will not
order any visitation. . . .

18 Id. at 198-203.
19 A similar order was entered denying the mother visitation. These findings were
affirmed in the May 2006 order.

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In its written ruling, the court stated:

As far as compliance with services, the Mother has done virtually nothing
to comply with services. The Father has participated in counseling but
has restricted the Department's access to his records. The Father's
comments to his counselor . . . raise concerns whether visits will be in the
best interest of the children. The parents need intervention through
services before visitation can be further addressed.

The court did not address the parents' request for counseling to assist with reunification

of their family.

January 2006 Dependency Review
At the January 25, 2006 dependency hearing,20 the court reviewed both parents'

anger management evaluations. They were done in September 2005 by Dr. William S.

Mattila, a licensed mental health counselor. Dr. Mattila's evaluation recounted each

parent's version of the history of their childrens' dependency. He noted that their

version of events differed from the information provided by DSHS and interpreted this

difference as evidence that the parents had failed to take responsibility for their

problems. He found Dunlavy hostile and reluctant to share personal information during

her evaluation. He also noted that she expressed a negative attitude towards DSHS

workers, trial counsel and court processes. He concluded that she had paranoid

ideation, was not likely to cooperate with treatment, and had a self-defeating approach

to authority figures. Dr. Mattila recommended that the court continue to suspend

Dunlavy's visitation until she completed six months of anger management treatment.

The evaluation did not address any risks Dunlavy would pose during a visit with her

20 It is unclear from the record whether the parents raised the issue of visitation via
motion, though the issue was touched on by the juvenile court in the context of including a
parenting component in new psychological evaluations.

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children. His written recommendations were as follows:

1. [Ms.] Dunlavy should be required to attend a minimum of six months of
anger management counseling with a licensed mental heath counselor
with expertise in this arena.
2. Ms. Dunlavy should be required to undergo a psychiatric evaluation to
address noted paranoid ideation and possible medication intervention.
3. [Ms.] Dunlavy presents as a significant risk to the health, welfare and
safety of her minor children. This is primarily based on her clinical
profile of failing to take responsibility and her unwillingness to
cooperate with treatment interventions. It is secondarily based on her
noted paranoia and the unlikelihood that she will participate in
recommended treatment.
4. Given the history of poor treatment compliance, lack of motivation to
treatment and length of time that the children have not had contact
with Ms. Dunlavy all visitations with the children should remain
suspended until Ms. Dunlavy has demonstrated significant progress
and consistency in this treatment for a minimum of three months. . . .

Gilfillen was apparently more open during his evaluation, but Dr. Mattila found

that he did not appreciate the self-defeating effect of his conflicts with authority figures.

He described the father as having an "impenetrable life view that absolves him of
responsibility" arising out of childhood victimization.21 Dr. Mattila's written

recommendations for Gilfillen were as follows:

1. Mr. Gilfillen should be required to attend a minimum of one year of
anger management counseling with a licensed mental heath counselor
with expertise in this arena.
2. Mr. Gilfillen presents as a significant risk to the health, welfare and
safety of his minor children. This is primarily based on his clinical
profile, lack of taking responsibility and deficient insight into his own
behavior. It is secondarily based on the history of neglecting or
abandoning his children.
3. Given the history of poor treatment compliance, lack of motivation to
treatment and length of time that the children have not had contact
with him all visitations with the children should remain suspended until
Mr. Gilfillen has demonstrated significant progress and consistency in
this treatment for a minimum of six months. Consistency can be

21 Sealed Appendix to Gilfillen's Motion for Discretionary Review, Anger Management
Evaluation of Gilfillen at 9.

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described as attending all scheduled appointments. Progress can be
defined as taking responsibility for his behavior and developing
awareness of the underlying beliefs, values and emotions that provide
the intensity of his anger.
4. Mr. Gilfillen should be required to complete the recommended
treatment of individual psychotherapy to address his Axis I diagnosis.
This treatment could run concurrently with anger management.

The court again denied visitation. It ruled that psychological evaluations should go

forward with parenting components, including contact with the children, unless DSHS

sought a court order preventing such contact. Both parents filed notices for

discretionary review of these orders. Psychological evaluations with parenting

components were scheduled for June 2006 with a new provider in Bellingham,

Washington.

May 2006 Dependency Review Hearing and Order Denying Motion to Reconsider

At a contested hearing on May 17, 2006, Gilfillen told the court he was enrolled

in a second parenting class, psychotherapy, and had completed an anger management

evaluation. He had not yet enrolled in anger management counseling. Gilfillen told the

court he had trouble accessing services because of transportation problems and DSHS'

referrals to service providers who did not contract with the State. Both parents

requested visitation, but the court found the parents needed to make progress in

treatment and the children needed to be "prepared therapeutically" before visitation

could begin. The written order stated:

The findings made in the 6/9/05 order regarding suspension of visits still
stand. Suspension of visits continues to be necessary to protect the
children's health, safety, and welfare. Parents have not yet made
sufficient progress in services.

In its oral ruling, the court stated:

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Given the situation that we have, a lot of things need to happen
before I can sign [a visitation] order. Both of you need to make some
progress in treatment. Both of you need to discuss with treatment
providers or psychotherapists or other skilled professionals how you
would go about even having such a meeting with your children. . . .
. . . [I]f the parents make some progress, if they get engaged in
some services, if we start making, you know, a little bit of progress on
down the line that perhaps visitation would be appropriate. Frankly I think
if we can make some progress, visitation would be great.
. . . .
But, Mr. Gilfillen and Ms. Dunlavy, you need to make some
progress on some services. And if they do that, then we can revisit this
issue. So at this time the motion is denied without prejudice upon the
development of additional new information with regard to progress in
therapy and services, it can be revisited.

On May 30, 2006, both parents filed a motion to reconsider various aspects of the trial

court's May 17 order, including continued suspension of visitation. The court denied

both parents' motions.

Gag Orders

Throughout the course of the dependency, both parents have been prohibited

from disseminating any documents, reports, or orders without prior court approval. The

dependency disposition order entered on April 16, 2002, stated: "[t]he mother and the

father are prohibited from disseminating any documents, reports and orders issued or

filed under this cause without permission of and order of the court following notice to

DSHS and the VGAL." Similarly-worded orders were included in the three dependency

review orders filed before the court terminated Gilfillen's parental rights in January

2004. The State claimed the restraining order was necessary to protect the children's

constitutional right to privacy but agreed to include a provision for prior in camera

review.

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In February 2006, Gilfillen and Dunlavy filed separate appeals challenging the

juvenile court's orders suspending visitation. Gilfillen also separately appealed the

juvenile court's gag orders. We granted discretionary review and consolidated the

cases.

DISCUSSION

Suspension of Visitation

The State asserts the juvenile court did not abuse its discretion when it

suspended visitation between Dunlavy and Gilfillen because it was necessary to

protect their children's health, safety and welfare. It argues that visitation was

suspended because of Dunlavy's and Gilfillen's own behavior, and not as a sanction. It

relies on their actions at the DSHS office in January 2002 and their failure since then to

present evidence that they had ameliorated the behaviors that led to the initial

suspension of visitation or otherwise reduced the risks visitation would pose for the

children. The State contends Dr. Mattila's anger management evaluation and VGAL's

recommendation support the court's order denying visitation. It also highlights Dr.

Mattila's emphasis on Dunlavy's and Gilfillen's inability to take responsibility for the

2002 incident and their respective clinical profiles as typical of abusive parents. The

State asserts Dunlavy and Gilfillen failed to challenge Dr. Mattila's conclusions and

recommendations or to present evidence to rebut his evaluation, qualifications or

expertise.

Dunlavy and Gilfillen argue that the trial court abused its discretion by continuing

to suspend visitation with their children after this court remanded the matter in May

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2005.22 Both parents also contend the trial court abused its discretion by continuing to

suspend visitation because RCW 13.34.136(1)(b)(ii) explicitly declares that restrictions

on parent-child contact must be narrowly tailored and cannot be used as a sanction for

failing to comply with a court order or required services. Finally, they assert the record

does not support the finding that visitation would be harmful to their children's health,
safety, and welfare.23

Juvenile courts are given broad discretion in matters concerning the welfare of
children, and their decisions are entitled to substantial deference on review.24 Because

a juvenile court must evaluate a considerable amount of information and weigh the

credibility of numerous witnesses in order to balance the best interests of a child

against a parent's rights, we place "very strong reliance" upon a trial court's

determination of what course of action will be for the best interest of the child and will
not overturn a ruling on visitation absent an abuse of discretion.25 A trial court abuses

its discretion if its ruling is manifestly unreasonable, or is exercised on untenable
grounds or for untenable reasons.26 A decision is manifestly unreasonable if it is

outside the range of acceptable choices, given the facts and the applicable legal

22126 Wn. App. at 185.
23 Both parents present a number of secondary authorities to emphasize the
importance of visitation to the reunification process for children and families involved in the
foster care system. The language of the statute is unambiguous, so these studies, while
informative, are not necessary to our decision. The statute clearly emphasizes that visitation is
not only a right of the family, it is to be suspended or limited only when the visitation itself
would pose a risk to a child's health, safety, or welfare.
24 In re Custody of S.H.B., 118 Wn. App. 71, 78, 74 P.3d 674 (2003), aff'd, 153 Wn.2d
646, 105 P.3d 991 (2005).
25 In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) (citing In re
Pawling, 101 Wn.2d 392, 401, 679 P.2d 916 (1984)).
26 State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).

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standard or if the facts do not meet the requirements of the correct standard.27

Statutory interpretation and the question of whether a statute applies to a
particular set of facts are issues of law reviewed de novo.28 When interpreting statutes,

our primary goal is to ascertain and give effect to legislative intent.29 We begin with the

statute's plain language and ordinary meaning, but also look to "the applicable

legislative enactment as a whole, harmonizing its provisions by reading them in context
with related provisions and the statute as a whole."30

Under the dependency and termination statute, RCW 13.34, the safety of the

child prevails over the rights of parents when these two interests conflict. Under RCW

13.34.136(1)(b)(ii), as amended in 2004, visitation is a right of the family. The

legislature requires the agency to encourage maximum family contact when it is in a

child's best interests and prohibits courts from using visitation as a sanction for a
parent's failure to comply with court orders or required services.31 The 2004

27 In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
28 State v. Jackson, 91 Wn. App. 488, 491, 957 P.2d 1270 (1998) (citing State v.
Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123, review denied, 125 Wn.2d 1002 (1994)), review
denied, 137 Wn.2d 1038 (1999).
29 Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224,
238, 110 P.3d 1132 (2005) (citing King County v. Cent. Puget Sound Growth Mgmt. Hearings
Bd., 142 Wn.2d 543, 555, 14 P.3d 133 (2000)).
30 Id. at 239 (citing King County, 142 Wn.2d at 555, 560).
31 Former RCW 13.34.136(1)(b)(ii) provided:
The agency shall encourage the maximum parent and child and sibling
contact possible, including regular visitation and participation by the parents in
the care of the child while the child is in placement. Visitation may be limited or
denied only if the court determines that such limitation or denial is necessary to
protect the child's health, safety, or welfare.
Current RCW 13.34.136(1)(b)(ii) (amended 2004) provides:
Visitation is the right of the family, including the child and the parent, in
cases in which visitation is in the best interest of the child. Early, consistent,
and frequent visitation is crucial for maintaining parent-child relationships and
making it possible for parents and children to safely reunify. The agency shall
encourage the maximum parent and child and sibling contact possible, when it

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amendments also prohibit a court from limiting or denying visitation without a showing of

risk.

Visitation between these parents and their young children has been suspended

for nearly five years. Even though the 2004 amendments to RCW 13.34.136(1)(b)(ii)

strengthened the parents' visitation rights and commanded the agency to encourage

maximum parent-child contact, DSHS has made no attempts to reunite this family since

either the amendments or our 2005 remand. Nor does the record support the juvenile

court's rulings denying all visitation. The State relies on Dr. Mattila's anger

management evaluation to support the juvenile court's orders, but these evaluations do

not address how Dunlavy's or Gilfillen's anger management issues or clinical profiles

would pose a risk to their children in the context of a supervised visit. One incident,

nearly five years ago, well before the legislature amended RCW 13.34.136(1)(b)(ii), is

an insufficient basis to deny all visitation between Dunlavy and Gilfillen and their young

children. The record is replete with indications that their failure to obtain court-ordered

is in the best interest of the child, including regular visitation and participation by
the parents in the care of the child while the child is in placement. Visitation
shall not be limited as a sanction for a parent's failure to comply with court
orders or services where the health, safety, or welfare of the child is not at risk
as a result of the visitation. Visitation may be limited or denied only if the court
determines that such limitation or denial is necessary to protect the child's
health, safety, or welfare. The court and the agency should rely upon
community resources, relatives, foster parents, and other appropriate persons to
provide transportation and supervision for visitation to the extent that such
resources are available, and appropriate, and the child's safety would not be
compromised.
The amendments to this statute were passed in response to a report of the Dependency and
Termination Equal Justice Committee which emphasized on page 19 that the "frequency and
quality of visitation has been shown to be a strong indicator of a family's likelihood of success
in dependency and termination cases." The report can be found at
http://www.opd.wa.gov/Publications/Dependency%20&%20Termination%20Reports/2003%20
DTEJ%20Report.pdf (December 2003).

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services is the basis for denying visitation and finding a risk of harm, but there are no

findings about how a visit would harm their children. The legislatively-mandated risk of

harm must be an actual risk, not speculation based on reports like those relied on here.

Nor does the statute require parents to prove the absence of risk. Rather, it places the

burden on the agency to encourage maximum parent-child contact and to prove that

visitation poses a current concrete risk to the children. While these parents may well

have acted inappropriately five years ago, that incident is ancient history in the lives of

this family. Something more than opinions based on a single incident is necessary to

support a finding of risk of harm.

Dunlavy, Gilfillen and their children will certainly require preparation to become

reunited, but nothing in the record explains DSHS's failure to arrange therapeutic

counseling services to prepare the children for reunification. There are many ways to

structure visitation that would satisfy the statute's clear directive to encourage visitation

while limiting actual risks to the children, including telephone visits and supervised

visitation with licensed professionals. We are troubled by the court's failure to order

therapeutic visits or structure any contact that would begin the process of reunification.

Indeed, by keeping this family apart for so long, the State has exacerbated the problem

and is now using the extended separation itself as a reason to deny visitation. While

the State repeatedly argues that the court did not suspend visitation as a sanction, it is

difficult to view the orders as anything but a sanction given the repeated mention by the

court, the State, and its witnesses, that visitation should not resume until each parent

made sufficient progress in court-ordered services. Sadly, it appears these parents are

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caught in an endless catch-22, a circumstance that would frustrate and anger any

parent. We hold the juvenile court misapplied the clear language of the statute by

denying visitation as a sanction and without a showing of actual harm.

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Speech Restrictions

Gilfillen argues the court restricted his right to free speech without hearing

evidence of harm to his children or considering less drastic means of protecting his

children's privacy rights. He argues the court's order is overly broad because it

restricts his ability to provide information about his own anger management evaluation

with service providers and prevents him from discussing information presented and

filed in open court. While RCW 13.50.010(1) and RCW 13.50.100(2) mandate that

juvenile court files in dependency cases not be made public, he asserts that the statute

does not limit a parent's right to access all information kept by a juvenile court or

prohibit a parent from releasing information concerning issues in his own case. Finally,

he contends that the State's failure to address his arguments about the

unconstitutionality of the order as a prior restraint on his free speech rights is a

concession that the gag order is unconstitutional.

The State essentially argues that Gilfillen waived his right to appeal this issue

because he did not object to the court's order or raise it at either the January or May

2006 review. And it contends the restriction was not overly burdensome because the

court amended the order at Dunlavy's request to include in camera review. We

disagree.

Under RAP 2.5(a), an alleged error may be raised for the first time on appeal if it
involves a manifest error concerning a constitutional right.32 Issues involving the

exercise of free speech in the civil arena can be raised for the first time on appeal.33

32 State v. Lynn, 67 Wn. App. 339, 342, 835 P.2d 251 (1992).
33 State v. Easterling, 157 Wn.2d 167, 179, 137 P.3d 825 (2006).

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RCW 13.50 governs the maintenance and release of dependency records by juvenile
justice or care agencies.34 RCW 13.50.100(2) states: "[r]ecords covered by this section

shall be confidential and shall be released only pursuant to this section and RCW
13.50.010."35 The statute provides for access to juvenile court records and files under

certain conditions, but it requires that confidentiality and a juvenile's anonymity be
preserved.36

The order restraining Gilfillen from disseminating information was recommended

first by the VGAL at the March 2002 hearing. At that hearing, the court prohibited both

parents from "disseminating any documents, reports and orders issued or filed under

this cause without permission of and order of the court following notice to DSHS and

the VGAL." This order later included a provision for in camera review of requests for

dissemination. But in light of the published opinion in the termination case, the record

does not contain a sufficient basis to support such a broad restriction on Gilfillen's

speech. The facts of this case are already in the public domain, and Gilfillen should be

able to discuss it openly so long as his children's names remain confidential. Further,

while RCW 13.50.100(2) requires juvenile court records to remain confidential, it

applies to information about the juvenile but does not limit an adult involved in the

proceeding from accessing or disseminating information concerning his or her own

medical or health records. On remand the trial court should fashion an order that is the
least restrictive alternative that will achieve these limited goals.37

34 In re Dependency of J.B.S., 122 Wn.2d 131, 134, 856 P.2d 694 (1993).
35 Id.
36 See RCW 13.50.010(8).
37 In Gilfillen's reply brief, he included additional facts that referenced exhibits submitted
during the 2004 termination proceeding under Snohomish County Cause Nos. 03-7-00692-7

21

57862-6-I/22

CONCLUSION

Since we granted discretionary review, we understand from the parties that the

Snohomish County Juvenile Court granted a motion changing venue to Thurston

County. Because no order changing venue is part of our record, we reverse and

remand this matter to the Snohomish County Juvenile Court. On remand, the trial court

is to require DSHS to take immediate steps toward reunifying this family in accordance

with RCW 13.34 and our opinion. We also reverse the orders prohibiting Gilfillen from

disseminating information about the case. The trial court shall schedule an immediate

hearing to determine whether a protective order is necessary and, if so, enter a new

order that is consistent with Gilfillen's constitutional and statutory rights.

WE CONCUR:

and 03-7-00693-5. The State filed a motion to strike those portions of Gilfillen's reply brief and
supplemental clerk's papers on the grounds these exhibits were not before the trial court when
it entered the orders on appeal. We need not consider this motion to strike because we did
not consider these exhibits on appeal.