Right to counsel

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Legislation, Termination of Parental Rights (State) - Birth Parents

Ark. Code Ann. § 9-27-316(h)(1)(D) states that "All parents shall have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent."  The right to counsel does include the right to effective assistance. Jones v. Ark. Dep't of Hum. Servs., 205 S.W.3d 778, 794 (Ark. 2005) (holding that "the right to counsel in termination cases includes the right to effective counsel", and finding that the Strickland standard applies).

In analyzing the denial of counsel in termination of parental rights matters on appeal, Arkansas courts tend to apply the harmless error doctrine, despite their recognition of the parallels between the potential loss of liberty at stake in a criminal proceeding and the potential loss of a child in a termination proceeding.  See Osborne v. Ark. Dep’t of Hum. Servs., 252 S.W.3d 138, 143 (Ark. Ct. App. 2007). 

For example, in order for counsel to withdraw on appeal from a termination proceeding, the attorney must meet the so-called Anders standard (Anders v. California, 87 S.Ct 1396 [1967]) and show that no genuine grounds for appeal exist, in a manner similar to that used in the criminal context.  Linker-Flores v. Ark. Dep’t of Hum. Servs., 194 S.W.3d 739, 745–46 (Ark. 2004); see also Ark. R. Sup. Ct. Rule 6-9(j)(1) (providing procedure for no-merits briefs).  

However, unlike the right to counsel in criminal cases, deprivation of the statutory right to counsel will not be reversed unless the petitioner on appeal can show that the deprivation of counsel was harmful.  Briscoe v. State, 912 S.W.2d 425, 427 (Ark. 1996) (although party did not have counsel at prior review hearings and should have been appointed counsel pursuant to statute, no prejudice because she was represented at final hearing and all evidence reconsidered at final hearing). 

This review standard limits, to some extent, the effectiveness of the statutory right to counsel in termination cases.  In Briscoe, the court failed to recognize that the party was prejudiced by appearing unrepresented in hearings related to her child's removal that occurred prior to the final termination proceeding, even though a determination of custody at a temporary hearing often has bearing on who gets custody in the final adjudication. 912 S.W.2d at 427.  Had she been represented by counsel at the earlier proceedings, it is possible that a different ultimate result would have occurred.  See also Farmer v. Ark. Dep’t Hum. Servs., No. CA 06-185, 2006 WL 2879454 (Ark. Ct. App. 2006) (unpublished) (petitioner not prejudiced by trial court failure to appoint counsel in earlier termination hearings, as she was ultimately represented at final hearing); Buck v. Ark. Dep't of Hum. Servs., 548 S.W.3d 231 (2018) (failure to appoint counsel for father in dependency proceeding not harmless error notwithstanding fact that father was appointed counsel for termination proceeding; court notes that dependency-neglect finding made primarily on stipulations by the mother, and father did not have benefit of counsel to monitor implementation plans).

Please note that certain unpublished case law is not precedential pursuant to Arkansas Supreme Court Rule 5-2(c) ["Opinions of the Supreme Court and Court of Appeals issued before July 1, 2009, and not designated for publication shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case)"]Farmer v. Arkansas Department of Human Services is used here simply to illustrate how courts may treat the denial of counsel on appeal. No. CA 06-185, 2006 WL 2879454 (Ark. Ct. App. 2006) (unpublished). 


Appointment of Counsel: categorical Qualified: no