Page 24 - Delaware Lawyer - Summer 2019

FEATURE
are determined by applying the factors from the U.S. Supreme Court’s ruling in Mathews v. Eldridge: personal interests at stake, risk of error and government’s in- terest.33 Additionally, Delaware courts have outlined the circumstances in which prisoners in civil cases can or should be appointed counsel.34
Of all of these Delaware statutes and rulings, only the public officers/employ- ees provision described above is unique when compared to other states. Con- versely, other jurisdictions have exceeded Delaware in certain critically important right-to-counsel areas, such as domestic violence,35 private child custody cases36 and evictions.37 With respect to evictions, not only have three cities already enacted a right to counsel, but legislation is pend- ing in 2019 in Connecticut, Massachu- setts, Minnesota, Detroit, Los Angeles and Philadelphia that would establish such a right.
It is worth a closer look at how Dela- ware right-to-counsel law responds to the two preeminent Supreme Court holdings: Lassiter (termination of parental rights) and Turner (child support civil contempt). Delaware’s Child Welfare Right-to-Counsel Law
Virtually every state in the country guarantees counsel for indigent parents in child-welfare and termination-of-pa- rental-rights proceedings.38 Delaware, however, recently took a step backwards on this front, and the Delaware Supreme Court has not been receptive to the con- stitutional right to counsel in such pro- ceedings.
“In 2002, the Family Court Civil Pro- cedure Rules were amended to provide for mandatory appointment of an attor- ney in the case of an indigent party if so requested by that party.”39 Indeed, the 2002 version of Del. Fam. Ct. Rule 207 specified that the court would “arrange for appointment of counsel if the respon- dent parent is eligible for Court-appoint- ed services and wishes to be represented.” This rule applied to both abuse/neglect and termination-of-parental-rights cases, and was later extended to private abuse/ neglect cases as well.40
The Delaware Supreme Court has refused to recognize a constitutional right to counsel for both termination-of-parental- rights cases and dependency cases.
However, in 2015, the Rules were amended again, this time to state:
“(a) A parent, determined by the Court to be indigent, may have coun- sel appointed by the Court during the parent’s initial appearance on a peti- tion, or at such other time as deemed appropriate by the Court.
(b) In considering the appointment of counsel, the Court shall consider: the degree to which the loss of parental rights are at stake; the risk of an er- roneous deprivation of those rights through the dependency proceedings; and the interest of DSCYF [Depart- ment of Services for Children, Youth and their Families] as to the ultimate resolution.”
The factors outlined in subsection (b) outline those provided by the U.S. Su- preme Court in Lassiter for discretionary appointment of counsel.
This rule change was extremely signifi- cant: not only is Delaware the only state besides Alaska without a statute govern- ing the appointment of counsel for par- ents in abuse/neglect and termination-of- parental-rights cases (thus greatly increas- ing the importance of the court rule), but the Delaware Supreme Court has refused to recognize a constitutional right to counsel for both termination-of-parental- rights cases41 and dependency cases.42 The Court’s rule change is particularly inexpli-
cable in light of factors acknowledged by the Court in its holdings:
• The Court has pointed out that the parental interests at stake in dependen- cy cases are “great” and “compelling,” while the State’s economic interest is “not enough to override the great compelling interests of the parents that are at stake;”43 • The Court has conceded that in depen- dency cases, the risk of error is significant, and that such risk “will routinely require the appointment of counsel at State ex- pense for indigent parents in every depen- dency and neglect proceeding to ensure that an erroneous result does not occur.”44 • The Court has stated, “Respected au- thorities have concluded that it is unre- alistic to expect that these already chal- lenged indigent parents will turn their lives around, especially on the acceler- ated ASFA [Adoption and Safe Families Act] time table, without an attorney to advocate their need for the reunification resources that are available through the DFS [Division of Family Services].”45
• The Court has predicted that “the Gen- eral Assembly will be called upon to pro- vide funding to the extent that the Family Court determines, probably routinely, that the due process provisions in the United States Constitution and the Delaware Constitution require the appointment of counsel to represent indigent parents when dependency and neglect proceed- ings are initiated by the State.”46 The Court has also said, “On a case-by-case basis, the Family Court properly and routinely finds that due process requires the appointment of counsel to represent parents who appear in a termination pro- ceeding, request legal representation and demonstrate indigency.”47
• With respect to termination-of-paren- tal-rights cases, the Court acknowledged Delaware was “among the minority of the states which have not progressed in this developing area of the law.”48
• The Court observed, “In Delaware, at the present time, the indigent parents are the only parties to a dependency and neglect proceeding who are not provided with representation.”49 In fact, the right to counsel for children has improved since
22 DELAWARE LAWYER SUMMER 2019