Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (State) - Children

Cal. Fam. Code § 7861 provides, "The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child, whether or not the child is able to afford counsel."  However, in a proceeding specifically to terminate parental rights to a dependent child, the court "shall" appoint counsel to represent the minor child unless it finds no benefit in doing so. Cal. Welf. & Inst. Code § 366.26(f)(1).


In In re Richard E., 146 Cal. Rptr. 604, 607 (1978), superseded by statute, Cal. Civ. Code § 237.5 (current version at Cal. Fam. Code §§ 7861), the California Supreme Court found that it would be an abuse of discretion to not consider whether to appoint counsel for the child and to not appoint counsel where "the court finds a child has separate interests not protected in the contest between parents and a petitioner . . . . counsel is [] required in the absence of an affirmative showing the minor's interests would otherwise be protected."


Appointment of Counsel: discretionary Qualified: no