Page 23 - Delaware Lawyer - Summer 2019
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 ognizing a right to counsel for minors in juvenile delinquency cases (which are technically civil),8 the court subsequently declined right-to-counsel claims in the context of parole revocation,9 prison dis- cipline,10 school discipline,11 and most notably, termination of parental rights (in Lassiter v. Dep’t of Soc. Servs.)12 and civil- contempt incarceration for inability to pay child support (in Turner v. Rogers).13
The Court’s understanding in Gideon about the inability of laypersons to defend themselves and the unfairness of trials of pro se litigants was inexplicably absent for these civil cases, and notably, the Court in Lassiter adopted the same case-by-case approach that it had discarded in Gideon.
Moreover, in these rulings, the Court ignored the weight of nationwide judicial rulings and public opinions. At the time Lassiter was decided, the Court conceded that “33 States and the District of Co- lumbia provide statutorily for the appoint- ment of counsel in termination cases,” that “courts have generally held that the State must appoint counsel for indigent parents at termination proceedings” and that “the respondent is able to point to no presently authoritative case, except for the North Carolina judgment now before us, holding that an indigent parent has no due process right to appointed counsel in termination proceedings.”14 And the peti- tion for certiorari in Turner pointed out that seven Courts of Appeal and 15 state high courts had recognized a federal due process right to counsel in civil contempt proceedings.
Fortunately, the holdings of the Su- preme Court are far from the whole sto- ry: for instance, over a dozen state high courts have rejected Lassiter and recog- nized a right to counsel in termination proceedings under their state constitu- tions.15 And while not many state courts have revisited their civil contempt juris- prudence since Turner, a few courts have reaffirmed their pre-Turner establishment of a right to counsel either by distinguish- ing Turner or because the holdings were based on the state constitution.16 Further- more, courts have found state and federal constitutional rights to counsel in other
Delaware is one of only six states that fail to provide a right to counsel for parents facing permanent severance of their parental rights.
areas such as paternity, civil contempt, civil commitment and civil forfeiture.17 And besides judicial decisions, state leg- islatures have enacted hundreds of right- to-counsel laws via statute, with virtually every state protecting litigants in cases in- volving child welfare, guardianship, civil commitment and other areas.18
Delaware is solidly in the middle of the pack compared to other states, but its recent step backwards on the right to counsel for parents in child welfare pro- ceedings is inconsistent with the national trend towards guaranteeing counsel for all parents in such proceedings. In fact, Delaware is one of only six states that fail to provide a right to counsel for parents facing permanent severance of their pa- rental rights.19
Delaware’s Right-to-Counsel Law in General
In most ways, Delaware is solidly aver- age on the right to counsel in civil cases compared to other states: as described below, it provides the right for most ar- eas where other states do so, and does not provide any particularly innovative new rights. The American Bar Association’s Directory of Law Governing Appointment of Counsel in Civil Proceedings, which was created to ensure state trial-court judges are aware of all the circumstances in which they must or can appoint counsel, has an entry for every state (including Delaware)
and includes all the information described below.20
Laws governing appointment of coun- sel can take several forms: they can pro- vide a right for all indigent litigants (or in some cases, regardless of indigence), they can authorize judges to appoint coun- sel on a discretionary basis, or in rare cases they can prohibit the appointment of counsel. In Delaware, there is a right to counsel (in some instances regardless of indigence) in a hearing to determine whether cause exists for involuntary sub- stance-abuse treatment21 or involuntary commitment;22 for involuntary protective services;23 for guardianship proceedings (based solely on a court rule);24 for hear- ings pertaining to the involuntary isola- tion, quarantine or treatment of the liti- gant during a public health emergency;25 for civil contempt proceedings (by case law, as discussed later); and for minors who are filing an expedited appeal with the Delaware Supreme Court of a Family Court’s denial of a waiver of parental no- tice prior to an abortion (although there is no right to counsel for the Family Court proceeding itself).26 There is also a limited right to counsel in truancy proceedings,27 and apparently no right to counsel for in- voluntary sterilization: the sterilization statute provides that the individual has the “right to counsel,”28 but it does not mention appointment of counsel, which typically means it is not contemplated. Additionally, Delaware statutory or case law grants trial courts the discretion to appoint counsel in divorce cases,29 for either side in a housing discrimination case,30 for paternity cases,31 and for pub- lic officers or employees “in a criminal or civil action against the person arising from state employment.”32 As discussed later, the right to counsel for parents in dependency and termination of parental rights cases is discretionary.
In terms of considering appointment of counsel in a more general sense, a few lower Delaware courts have said that where there is no threat to personal liber- ty in a civil matter, there is no requirement to appoint counsel in the absence of “spe- cial and compelling circumstances” that
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