Right to counsel

A line of Arizona cases that partially predates Lassiter holds that the right to appointed counsel in some parental rights cases has a due process basis.

In Ariz. State Dep’t of Public Welfare v. Barlow, the Arizona Supreme Court held the denial of a parent’s request to be represented by their own retained counsel in a dependency hearing violated due process. 296 P.2d 298, 300 (Ariz. 1956).  The court did not explicitly say whether it was analyzing the state or federal constitutional right to due process, although it did state that while the Arizona Constitution “provides distinctive procedure in juvenile matters, there is no language used from which an intention can be inferred to dispense with the fundamental rights of parents appearing” before a court of general jurisdiction in a juvenile matter. Id. at 301.  

Appellate courts have subsequently relied on Barlow to conclude that appointment of counsel in a severance proceeding is not merely required by statute, but a matter “of constitutional dimension.” See e.g., Daniel Y. v. Ariz. Dep't of Econ. Sec., 77 P.3d 55, 58 (Ariz. Ct. App. 2003).  Barlow has been relied upon in appellate dependency cases as well, in which the harmless error standard is applied in analyzing the denial of counsel. See In re Pima Cty. Juvenile Action No. J-64016, 619 P.2d 1073 (Ariz. Ct. App. 1980).  

In Pima County, the court set aside a finding of dependency where a mother was denied appointed counsel, noting that that the right to counsel statute evidenced “legislative recognition that due process requires appointment of counsel in a dependency proceeding where the parent faces losing custody of a child.” 619 P.2d 1073 (Ariz. Ct. App. 1980).  Though the trial court determined that mother was indigent and entitled to appointed counsel, it held a hearing on the dependency petition and the issue of temporary custody while mother was not represented and entered an order finding the minor to be “temporarily a dependent minor child.”  Although mother was represented in later hearings, such as at the review hearing and final hearing, the appellate court determined that mother was harmed by this error:

[A]s temporary placement of the child had already been accomplished, the court should have proceeded no further on the dependency issue until appellant was represented by counsel… [O]ur review of the record discloses that the only basis for certain findings of fact is evidence presented at the September 5 hearing. We therefore cannot say that because appellant was represented by counsel at all the subsequent hearings, the absence of counsel at the September 5 hearing was harmless error.

Pima Cty., 619 P.2d at 1075.  Although both Barlow and Pima County were decided before Lassiter v. Dep't of Social Services and the Pima County court relied in-part on the statute in effect at the time the case was decided, at least one more recent appellate decision has relied on the reasoning from Pima County in reversing a dependency finding on due process grounds due to denial of counsel. See Nicole M. v. Ariz. Dep't of Econ. Sec., No. 1 CA–JV 10–0172, 2010 WL 5071870 (Ariz. Ct. App. Nov. 18, 2010).