Discretionary appointment of counsel

In Watson v. Division of Family Services, the Court held that due process under both the Delaware and federal constitutions only requires a case-by-case analysis to determine whether to appoint counsel in dependency cases. 813 A. 2d 1101, 1107 (Del. 2002).

The Watson court also identified many general sources of error in dependency/neglect proceedings: (1) from the outset of proceedings, indigent parents are the only parties who do not have appointed legal representation; (2) parents in these proceedings are "often dysfunctional, usually due to ... substance abuse"; (3) indigent parents are particularly ineffective litigants; (4) it is unrealistic to expect these parents to "turn their lives around" and thereby prove that they should regain parental rights "without an attorney to advocate their need for the reunification resources that are available through the [State agency]."

In Hughes v. Div. of Family Services, the court observed that the risk of error in dependency cases was significant, and that such risk "will routinely require the appointment of counsel at State expense for indigent parents in every dependency and neglect proceeding to ensure that an erroneous result does not occur." 836 A.2d 498, 509 (Del. 2003).  However, it noted that the new court rules required appointment of counsel in all cases.