Page 32 - Delaware Lawyer - Summer 2019

FEATURE
THE GUIDING HAND OF COUNSEL
continued from page 23
... Should one side of the analysis not clearly outweigh the other, the court should err on the side of appointing counsel in order to further the due process right to fundamental fairness in judicial proceedings.”58 Importantly, Turner does not under-
mine Black, as Black confined its holding to state-initiated contempt proceedings, a situation explicitly excluded from the Turner ruling. This is key, as Delaware has no statute providing for a right to counsel in these civil contempt proceedings. Conclusion
Overall, Delaware is neither a leader nor a follower with respect to the right- to-counsel cases. Its current law and juris- prudence regarding the right to counsel for parents in child welfare proceedings, however, is troublesome and in need of at- tention. Given the significant interests at stake, the recognition of the high risk of error,59 and the developing case law from other jurisdictions, the Court should act to restore Rules 206/207 to their prior form. Absent that, the constitutional right to counsel for parents in such cases is ripe to be relitigated.
NOTES
1. Notably, even the rights of criminal defendants are limited, as the Supreme
Court has said there is no Sixth Amendment violation when denying a criminal defendant appointed counsel provided such defendant is not actually incarcerated. Scott v. Illinois, 440 U.S. 367 (1979)
2.Powell v. Alabama, 287 U.S. 45 (1932).
3. Johnson v. Zerbst, 304 U.S. 458 (1938).
4. Betts v. Brady, 316 U.S. 455 (1942).
5. Gideon v. Wainwright, 372 U.S. 335 (1963).
6. Id. at 344.
7. Id. at 344-45 (quoting Powell, 287 U.S.
68-69)).
8. In re Gault, 387 U.S. 1 (1967).
9. Gagnon v. Scarpelli, 411 U.S. 778 (1973).
10. Wolff v. McDonnell, 418 U.S. 539 (1974).
11. Goss v. Lopez, 419 U.S. 565 (1975).
12. 452 U.S. 18 (1981).
13. 564 U.S. 431 (2011) (but limiting its holding to cases where custodial parent, and not the State, is the plaintiff).
14. Lassiter, 452 U.S. at 30-31, 33.
15. John Pollock, The Case Against Case-By- Case: Courts Identifying Categorical Rights to Counsel in Basic Human Needs Civil Cases, 61 Drake L.J. 763, 781-83 (Spring 2013),
available at http://civilrighttocounsel.org/ uploaded_files/4/The_Case_Against_Case- by-Case__Pollock_.pdf. While the article refers to “at least 10 jurisdictions”, the number has grown since the article was published.
16. See e.g. State v. Churchill, 454 S.W.3d
328, 335 (Mo. 2015) (relying on Div. - Child Support Enforcement v. Lane, 313 S.W.3d
182 (Mo. App. 2010)); In re McCoy-Jacien, 200 A.3d 669 (Vt. 2018) (citing Russell v. Armitage, 697 A.2d 630 (Vt. 1997)); DeWolfe v. Richmond, 76 A.3d 1019, 1029 (Md. 2013) (relying on Rutherford v. Rutherford, 464 A.2d 228 (Md. 1983)).
17. John Pollock, The Case Against Case-By- Case: Courts Identifying Categorical Rights to Counsel in Basic Human Needs Civil Cases, 61 Drake L.J. 763 (Spring 2013), available
at http://civilrighttocounsel.org/uploaded_ files/4/The_Case_Against_Case-by-Case__ Pollock_.pdf.
18. See http://www.civilrighttocounsel.org/ map (the “Right to Counsel Status” view) for a lay of the land with respect to statutory law.
19. Id.
20. The Directory can be found at http://
ambar.org/civilrighttocounsel.
21. DEL. CODE ANN. tit. 16 §§ 2214(1), 2215(3).
22. DEL. CODE ANN. tit. 16 §§ 5007(3), 5009(a)(1).
23. DEL. CODE ANN. tit. 31 § 3909(a)(2)).
24. DEL. CODE ANN. tit. 12 § 3901(c) specifies that the person with the alleged disability is only “entitled to representation by counsel,” but there is no mention of appointment of counsel, and given that statutes in other contexts specifically mention appointment, the language in § 3901(c) would not likely
be construed as including appointment. However, Del. Ch. Ct. R. 176(a) specifies that upon petition for appointment of a guardian ad litem, “the Court shall appoint a member of the Delaware Bar to represent the adult person alleged to be disabled if such person
is not otherwise represented by counsel,
to receive notice on behalf of such person
and to give actual notice to such person, explain his or her rights, and the nature of the proceeding. The attorney ad litem shall represent the person alleged to be disabled
as if engaged by such person.” There is no mention of an indigency requirement.
25.DEL. CODE ANN. tit. 20 § 3136(7)(b). 26. DEL. CODE ANN. tit. 24 § 1784(e) (no
indigency requirement).
27. Delaware treats truancy as a status offense, pursuant to 14 Del. C. § 2730. Upon filing of a truancy matter in court, there is no right to appointed counsel for the child in a hearing on whether to impose a valid court order (VCO). But if the child is subsequently held in contempt for a violation of the VCO (which is treated as criminal contempt), there is a right to appointed counsel under 14 Del. C. § 2731(d) (for all violation proceedings) and 28 C.F.R. 31.303(f)(3)(v)(D) (if incarceration is sought).
28. 16 Del. C. § 5710(1).
29. DEL. CODE ANN. tit. 13 § 1516(c). 30. DEL. CODE ANN. tit. 6 § 4613(b)(1).
31. Allen v. Div. of Child Support Enforcement, 575 A.2d 1176 (Del. 1990). Although the court’s holding was limited to “the specific circumstances presented by this case”, Id. at 1185, the facts in Allen would generally be the same as other paternity proceedings where a blood test supports a finding of paternity.
32. 10 Del. C. § 3925.
33. 424 U.S. 319 (1976). See e.g. Jenkins v. Dover Police Com’r, 2002 Del. Super. LEXIS 404, *8 (2002) (unpublished) (adopting “special and compelling circumstances” language from a law review article, and finding no such circumstances where plaintiff prisoner failed to explain exactly how prison limited his access to law library); Robbins v. Victims’ Compensation Assistance Program, 2013 Del. Super. LEXIS 519, *5 (2013) (unpublished) (denying counsel for person refused compensation by victim assistance fund; court cites to Jenkins and adds that “applicant has access to the courts and has demonstrated his ability to file an appeal,
and make written submissions in support of his claim ... . The extraordinary remedy of court-appointed counsel is not warranted”); Zachery v. Div. of Child Support Servs., 190 A.3d 998 (Del. 2018) (not using “special and compelling circumstances” language, but holding that in absence of personal liberty threat in proceeding to determine amount of child support, no due process or equal protection right to appointed counsel even though mother was represented by State; court found little risk of erroneous deprivation, and held that State had rational basis for providing counsel for mother given State’s “legitimate interest in ensuring that children are financially supported”).
34. See e.g. Johnson v. State, 442 A.2d 1362, 1366 (Del. 1982) (trial court must determine if prisoner had access to some sort of legal resource, whether law library, legal counsel or something else); Vick v. Department of Correction, 1986 Del. Super. LEXIS 1246, *5-7 (1986) (unpublished) (concluding that as a court of general jurisdiction and one empowered with supervisory power over administration of prisons, Superior Court possesses inherent authority to appoint counsel for indigent prisoner in civil suit if it is demonstrated that State has not afforded ‘meaningful access’ to the courts by other alternatives;” Court relied in part on court rule of criminal procedure, which existed
at that time and provided power for trial court to appoint counsel in “any other case
in which the Court deems it appropriate”; Court acknowledged that rule “refer[s] exclusively to ‘defendant’ and ‘criminal prosecution’” and that “it may be a strained interpretation,” but concluded that “one could infer from this that in addition to the entitlement to counsel in criminal cases, it was contemplated that a separate category of litigants, indigent prisoners filing civil suits, could be provided with counsel in appropriate cases”); Jenkins, 2002 Del. Super. LEXIS 404 at *5-6 (characterizing Vick as a case utilizing Mathews v. Eldridge elements, in that Vick looked to prisoner’s interest in meaningful
30 DELAWARE LAWYER SUMMER 2019