* In Re Dependency of C.J.J.I.

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re the Dependency of:
C.J.J.I., C.V.I., and R.A.R. Jr.,
minor children.
NO. 1 0 3 5 4 1 - 1
EN BANC
Filed: March 27, 2025
PER CURIAM—M.R., the mother in this dependency matter, asks this
court to review a Court of Appeals ruling denying discretionary review of an
interlocutory order she sought to challenge under RAP 2.3(b)(3). The Court of
Appeals denied review on the ground that RAP 2.3(b)(3) applies only “to address a
procedural irregularity, not a substantive irregularity.” Comm’r’s Ruling at 1. We
grant review and hold that the Court of Appeals erred by limiting RAP 2.3(b)(3) in
this manner. We reverse the denial of M.R.’s motion for discretionary review and
remand for the Court of Appeals to reconsider her motion under the correct legal
standard.
FILE
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
MARCH 25, 2025
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
MARCH 27, 2025
SARAH R. PENDLETON
SUPREME COURT CLERK
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NO. 103541-1 	P AGE 2
BACKGROUND
This consolidated case involves separate dependency actions involving
M.R.’s three children, including two actions that are subject to the federal and state
Indian 	Child 	Welfare 	Acts 	(ICWA/WICWA). 	The 	superior 	court 	issued 	a
dispositional order requiring the Department of Children, Youth, and Families
(Department) to provide M.R. a minimum of four hours of supervised visitation
each week with each child. The Department failed to provide numerous visits
during a particular period, and M.R. asked the superior court to return the children
to her due to 	the Department’s 	failure to 	make 	“active efforts” to 	provide
consistent visitation. See, e.g., In re Dependency of G.J.A., 197 Wn.2d 868, 875,
489 P.3d 631 (2021) (“ICWA and WICWA mandate that the State provide ‘active
efforts’ to prevent the breakup of Indian families.”).1 The superior court held a
hearing and issued a lengthy order finding that the Department made active efforts
to provide consistent visitation, but the court did not mention or discuss the
evidentiary 	standard 	(clear, 	cogent, 	and 	convincing) 	that 	applies 	to
ICWA/WICWA dependencies.
M.R. moved for discretionary review in the Court of Appeals under RAP
2.3(b)(3), urging that the superior court erroneously failed to expressly apply the
correct ICWA/WICWA standard. The Court of Appeals denied discretionary
review.2 The commissioner’s ruling held that RAP 2.3(b)(3) applies only “to
address a procedural irregularity, not a substantive irregularity.” Comm’r’s Ruling
at 1. It further explained that M.R. sought review of a substantive irregularity, not a
1 This court uses the phrase “Indian children” when referring to the statutory language that uses
that language and otherwise uses the terms “Native” or “Native American.” In re Dependency of
Z.J.G., 196 Wn.2d 152, 157 n.3, 471 P.3d 853 (2020).
2 More specifically, a Court of Appeals commissioner issued a ruling denying review, M.R. filed a
motion to modify the commissioner’s ruling, and a panel of judges denied her motion.
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NO. 103541-1 	P AGE 3
procedural one, and that “RAP 2.3(b)(3), by its plain wording, does not permit
discretionary review of substantive irregularities.” Id. at 2.
We granted review to provide guidance as to the proper scope of RAP
2.3(b)(3) and 13.5(b)(3).
ANALYSIS
We interpret court rules using rules of statutory construction. In re
Dependency of N.G., 199 Wn.2d 588, 594, 510 P.3d 335 (2022). If a rule is plain
on its face, we give effect to its plain meaning. Id. Under the plain meaning rule,
we do not read the language of a contested rule in isolation but rather in context,
considering related provisions, and in light of the statutory or rule-making scheme
as a whole. Id.
Appellate 	courts 	accept 	discretionary 	review 	only 	in 	limited
circumstances. 	RAP 2.3(b), 	13.5(b). 	Of 	particular 	relevance 	here, 	to 	obtain
discretionary review of an interlocutory order in the Court of Appeals, a party must
show that the “superior court has so far departed from the accepted and usual
course of judicial proceedings . . . as to call for review by the appellate court.”
RAP 2.3(b)(3). Similarly, to obtain discretionary review of an interlocutory order
in this court, such as an order denying a motion for discretionary review, a party
must show that the “Court of Appeals has so far departed from the accepted and
usual course of judicial proceedings . . . as to call for the exercise of revisory
jurisdiction by the Supreme Court.” RAP 13.5(b)(3).
Neither RAP 2.3(b)(3) nor 13.5(b)(3) states that review is limited to only
“procedural” irregularities. Neither rule distinguishes between “procedural” and
“substantive” irregularities or even uses those terms. Rather, subsection (3) states
that it applies when a court has departed from the accepted and usual course of
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NO. 103541-1 	P AGE 4
judicial “proceedings.” As relevant here, a “proceeding” is the “regular and orderly
progression of a lawsuit, including all acts and events between the time of
commencement and the entry of judgment.” B LACK ’S LAW D ICTIONARY 1459 (12th
ed. 2024). In contrast, a “procedure” is a “specific method or course of action” or
the 	“judicial 	rule 	or 	manner 	for 	carrying 	on 	a 	civil 	lawsuit 	or 	criminal
prosecution.” 	Id. 	As 	these 	definitions 	make 	clear, 	a 	“proceeding” 	is 	not 	a
“procedure.” Accordingly, the text does not support the Court of Appeals’s
interpretation of RAP 2.3(b)(3).
Further, while the Court of Appeals pointed to a number of cases to
support its interpretation, the courts in those cases did not interpret the language of
RAP 2.3(b)(3) or directly discuss its meaning. Rather, the courts merely applied
the rule to particular facts without analysis of this question. See In re Marriage of
Folise, 113 Wn. App. 609, 613, 54 P.3d 222 (2002) (quoting RAP 2.3(b)(3) and
concluding that discretionary review was appropriate where the superior court
ignored unambiguous statutory language and related case law when granting relief
to a nonparty with no standing to move for a protective order); Young v. Key
Pharms., Inc., 63 Wn. App. 427, 431-32, 434, 819 P.2d 814 (1991) (stating that the
RAP 2.3(b)(3) criteria were met where the superior court erroneously excluded
prior testimony of an unavailable witness under ER 804(b)(1)); In re Marriage of
Flannagan, 42 Wn. App. 214, 216 n.2, 709 P.2d 1247 (1985) (citing RAP 2.3(b)(3)
in a consolidated case without citing the language of the rule, while stating that it
granted review in light of the consolidation and in light of the importance of the
issue, which was whether the Uniform Services Former Spouses Protection Act
may be applied retroactively); State v. Jeter, 19 Wn. App. 151, 152-53, 574 P.2d
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NO. 103541-1 	P AGE 5
1193 (1978) (quoting a commissioner’s ruling indicating that the superior court
apparently departed from the accepted and usual course of judicial proceedings by
erroneously permitting the defendant to present irrelevant evidence in a “habitual
criminal” proceeding); Wahler v. Dep’t of Soc. & Health Servs., 20 Wn. App. 571,
575-76, 582 P.2d 534 (1978) (concluding that the superior court substantially
departed from the accepted and usual course of judicial proceedings by attempting
to consider and determine the merits of a claim not properly before it). A review of
these cases confirms what a former commissioner of this court has observed, that
there is little guidance in the precedent to aid in interpreting RAP 2.3(b)(3).
Geoffrey Crooks, 	Discretionary Review of 	Trial 	Court 	Decisions 	Under 	the
Washington Rules of Appellate Procedure, 61 WASH. L. REV . 1541, 1547 (1986)
(observing that few relevant cases exist, and those that do exist seldom contain
much instructive discussion).
Still, the cases do not support a blanket rejection of discretionary review
of matters involving alleged substantive, as opposed to procedural, error. 	Indeed,
the Court of Appeals overlooked a recent case reviewed under RAP 2.3(b)(3)
involving claims of substantive legal error. 	In re Dependency of Baby Boy B., 27
Wn. App. 2d 825, 533 P.3d 1177 (2023), rev’d, 3 Wn.3d 569, 554 P.3d 1196
(2024). There, the superior court declined to order any further shelter care hearings
in the case based on its interpretation of RCW 13.34.065(7)(a)(i), thus making a
substantive decision about the meaning of the statute. Division One found that
RAP 2.3(b)(3) was satisfied, granted review, and reviewed the meaning of the
statute de novo. Although this court later reversed the Court of Appeals decision as
to the meaning of the statute, we did not criticize its ruling as to RAP 2.3(b)(3).
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NO. 103541-1 	P AGE 6
To properly understand the scope of RAP 2.3(b)(3), it is helpful to
consider its language alongside RAP 13.5(b)(3).3 Each rule presumes the existence
of an “accepted and usual course of judicial proceedings,” and it requires a
“depart[ure]” from that course that is “so far … as to call for” review or revision.
Putting these concepts together, the rules begin with a presumption that courts in
judicial proceedings follow a generally recognized and approved practice, and, to
satisfy RAP 2.3(b)(3) or 13.5(b)(3), a party must show not simply that the lower
court deviated from that practice, but that it did so to such a great extent that
review or revision is necessary.
This reading strikes the proper balance. On the one hand, the rules are
not easily satisfied, and a party must show the existence of a significant deviation,
not merely a commonplace error. The guiding principle is that RAP 2.3(b) and its
parallel RAP 13.5(b) set forth “‘specific and stringent’ criteria that reflect the
appellate system’s ‘plain and intentional bias against interlocutory review.’” N.G.,
199 Wn.2d at 595 (quoting Crooks, supra, at 1545, 1547). On the other hand, the
rules 	do 	not 	erect 	an 	insuperable 	bar 	to 	review. 	Rather, 	appellate 	courts
appropriately intervene prior to a final decision when the situation is “significant
enough to warrant interlocutory review.” Crooks, supra, at 1548.
We apply the foregoing principles to the ruling denying review in this
case in addressing whether this court’s review is warranted. We first consider
whether M.R. met her burden to show that the Court of Appeals departed from the
usual and accepted course of judicial proceedings, meaning that it deviated from
3 M.R. sought this court’s review under both RAP 13.5(b)(1) and (3). Because we conclude that
review is warranted under subsection (3), as will be discussed, we decline to address whether
review is warranted under subsection (1).
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NO. 103541-1 	P AGE 7
the generally recognized and approved practice. As noted, the court refused to
consider the merits of M.R.’s motion based on its erroneous reading of RAP
2.3(b)(3). The rule does not limit discretionary review to only procedural errors. As
reflected in Baby Boy B., RAP 2.3(b)(3) may allow interlocutory review to address
alleged legal error, there, a substantive decision about the meaning of a statute. We
thus 	conclude 	that 	the 	mother 	met 	her 	burden 	to 	show the 	existence 	of 	a
“depart[ure]” within the meaning of RAP 13.5(b)(3).
We next consider whether M.R. met her burden to show that the
departure is “so far” as to call for the exercise of this court’s revisory jurisdiction,
meaning that the Court of Appeals deviated to such a great extent that revision is
necessary. In answering that question in the affirmative, we note that the Court of
Appeals’s erroneous interpretation precludes review of an entire category of
“irregularities.” And, this interpretation is likely to affect future cases in the
absence of guidance from this court.4 We thus conclude that M.R. has met her
burden to show that the departure is significant enough to necessitate revision on
discretionary review.
CONCLUSION
RAP 2.3(b)(3) applies to both procedural and substantive irregularities.
The Court of Appeals erred in ruling otherwise. We therefore grant discretionary
review, reverse, and remand.
4 We do not suggest that these are the only factors that may be considered under RAP 2.3(b)(3) and
RAP 13.5(b)(3). A departure may be “far” and thus significant for other reasons that will warrant
discretionary review.
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