Right to counsel

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

In K.P.B. v. D.C.A., the Alabama Court of Civil Appeals reversed and remanded the trial court's denial of a father's right to counsel. 685 So.2d 750 (Ala. Civ. App. 1996).  In this case, 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] 

Citing Lassiter v. Department of Social Servsices, 452 U.S. 18 (1981), the lower court denied the father’s request for appointed counsel. See K.P.B.685 So.2d at 751.  The Alabama Court of Civil Appeals, in reaching its decision to reverse, relied on Ex parte Shuttleworth, 410 So.2d 896, 897 (Ala. 1981), an Alabama Supreme Court case decided a few months after Lassiter.  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).  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). 

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.

[1]              “Dependency” means that a child is without adequate care or support—generally by parental absence, abuse or neglect—and is therefore dependent on the state for support.  See Ala. Code § 12-15-10.  Dependency cases within the meaning of §12-15-63(b) are accordingly those where the state seeks to terminate parental rights by proving that the child is “dependent.”  See K.P.B., 685 So.2d at 751.  


Appointment of Counsel: categorical Qualified: no