Trial court found to have abused discretion in failing to apopint counsel for parent

01/09/2021, Litigation, Termination of Parental Rights (Private) - Birth Parents

In In re D.L.D., 2021 La. App. LEXIS 24 (2021), a Louisiana Court of Appeals held that a trial court had abused its discretion by failing to determine if a parent in an adoption proceeding was entitled to appointed counsel.  As background, Louisiana used to have a right to counsel in such cases but then replaced it with a discretionary appointment system (La. Child. Code Ann. art. 1244.1(C)) that requires the court to make a determination of whether due process requires appointment where the parent indicates in their written opposition to the adoption that they have an inability to pay for counsel.  In this case the father didn’t indicate in his response to the adoption that he couldn’t afford an attorney or that he was requesting one, but he mentioned his indigence at the hearing. 


The appeals court noted that the form notifying the father of his right to request counsel was “long and complicated and the information about requesting the appointment of counsel is located deep in the text.  The notice did not state that a party opposing an adoption must request the appointment of an attorney in his opposition or forfeit any consideration of appointment of counsel by the trial court.”  The appeals court then noted the father in question sought in forma pauperis status after the hearing, demonstrating he was indigent.  The appeals court also observed that “In spite of the difficulties experienced by courts across the state as a result of the closures precipitated by the COVID-19 pandemic, this intrafamily adoption proceeded quickly.  The June 2020 hearing on whether ETF's consent to the adoption was necessary was held only three months after the filing of the original petition, one month after the May hearing where ETF requested counsel, and one month after the petition was amended.”  The appeals court then remanded the case back to the trial court to determine if due process required appointment of counsel for the father.