Right to counsel

In Ex parte Shuttleworth, 410 So. 2d 896, 897 (Ala. 1981), a case decided a few months after Lassiter v. Dep't of Social Services, 101 S.Ct. 2153 (1981), the Alabama Supreme Court considered the extent to which the state was required to provide notice before terminating parental rights and held that both notice and the appointment of counsel were required, although it did not specify which constitution it was interpreting.  The Alabama Supreme Court’s precise language in Shuttleworth, which makes no mention of Lassiter whatsoever, is instructive:

The [Supreme Court in In re Gault, 87 S.Ct. 1428 (1967)] further held that in [] delinquency proceedings the child and his parents must be advised of their right to be represented by counsel and that if they are not able to afford same, counsel should be appointed to represent them.  Such due process safeguards in Alabama are found in Code 1975, § 12-15-63.  We can perceive no reason to guarantee these due process safeguards in a delinquency case and refuse them in a case terminating parental rights.  In the former, the child is subject to severe punishment by incarceration or otherwise.  In the latter, the natural bonds of family are subject to destruction.  The judicial action in both instances portends grave consequences, indeed. Our courts, to their credit, have perceived no distinction. 

Id. at 899 (emphasis added).  

In K.P.B. v. D.C.A., the Alabama Court of Civil Appeals relied on Shuttleworth in reversing and remanding the trial court's denial of a father's right to counsel. 685 So.2d 750 (Ala. Civ. App. 1996) (citing Ex parte Shuttleworth, 410 So.2d 896, 897 [Ala. 1981]).  In K.P.B., a mother sought termination of the father’s parental rights where the father was in prison but there had been no finding of dependency against him.  Although Ala. Code § 12-15-63(b) provided a right to appointed counsel for indigent parents in dependency proceedings, no express statutory right existed at the time in cases where parental rights were at stake, but the dependency of the child was not at issue.[1] 

In denying the father's request for appointed counsel, the trial court had relied on Lassiter. See K.P.B., 685 So.2d at 751.  But the K.P.B. court reasoned that the U.S. Supreme Court in Lassiter had noted the power of state courts to interpret their state constitutions more broadly, and then the appellate court commented, “It appears that in Shuttleworth the Alabama Supreme Court did adopt ‘higher standards than those minimally tolerable under the [federal] Constitution.’” Id. at 752.  The court added:

Lassiter was decided in June 1981.  Shuttleworth was decided in October 1981, four months later.  Because Lassiter had just held that there was no federal due process right to appointed counsel in a termination case, we assume that, when our supreme court referred in Shuttleworth to “due process safeguards,” it meant due process safeguards provided by the Alabama Constitution.  We conclude that in Shuttleworth the Alabama Supreme Court found a due process right to appointed counsel for indigents in termination-of-parental-rights cases. 

K.P.B., 685 So.2d at 752 (emphasis added).  In some ways, the correctness of the K.P.B. decision is difficult to measure.  First, while Shuttleworth did come out after Lassiter, it did not explicitly ground its decision in the Alabama Constitution (thus leading to the Civil Court of Appeals’ “assumption” as to Shuttleworth’s intent), and the failure of the Shuttleworth court to mention Lassiter is perplexing.  Second, because the issue at stake in Shuttleworth was only about the requirement of notice, the Shuttleworth court’s mention of the additional requirement of counsel is likely dicta.  Finally, Shuttleworth’s explanation that it could “perceive no reason” to guarantee notice in delinquency proceedings but not in termination of parental rights cases could possibly be an implicit equal protection finding that the distinction lacked a rational basis (especially since Shuttleworth failed to undergo any specific due process analysis or utilize Mathews v. Eldridge), and as previously explained, the Alabama Supreme Court’s recent questioning of the existence of an equal protection clause in the Alabama Constitution might imperil any prior equal protection finding.

However, K.P.B. has been regularly cited with approval by the Alabama Civil Court of Appeals for the proposition that “a due process right to appointed counsel does exist for an indigent parent in termination-of-parental-rights-cases.” See e.g., W.C. v. State Dep’t of Hum. Res., 887 So.2d at 256–57; see also R.H. v. D.N., 5 So. 3d 1253, 1254 (Ala. Civ. App. 2008); D.V.P. v. T.W.P., 905 So.2d 853, 856–57 (Ala. Civ. App. 2005); J.A.H. v. Calhoun Cty. Dep’t of Hum. Res., 846 So.2d 1093, 1095 (Ala. Civ. App. 2002).  Also, in cases where the Alabama due process guarantees provide the basis for a right, the courts typically do not discuss the guiding due process principles in any detail.  For instance, the most that can be ascertained of the due process reasoning in K.P.B. and Shuttleworth is that the statutory rights in question rested upon due process values—a notion that procedural safeguards are due where important rights are at stake—and that these values underlying the statutory rights were at least equally applicable to the new right in question. SeeK.P.B., 685 So. 2d at 752; Shuttleworth, 410 So. 2d at 899.  In neither decision did the courts engage in the type of balancing exercise characteristic of Mathews v. Eldridge; the exclusive focus was on the importance of the right at stake.  This fact may bolster the possibility that Shuttleworth is really a decision based in equal protection and not in due process.

In 2009, the Alabama legislature codified K.P.B. in its revision of the Juvenile Justice Code.  For more, see Legislation, Termination of Parental Rights (State) - Birth Parents.