Discretionary appointment of counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (Private) - Birth Parents

In 2008, parents and children were given a statutory right to counsel in contested intrafamily adoption proceedings. La. Child. Code Ann. art. 1245.1. However, 2010 La. Acts 738, §§ 1-2 repealed art. 1245.1 and replaced it with a provision, La. Child. Code Ann. art. 1244.1(C) stating that "When the opposition provides that the parent cannot afford to hire an attorney, the court shall determine whether due process requires the appointment of counsel."


In In re B.J.C., 163 So. 3d 905, 911 (La. Ct. App. 2015), an appellate court held that the trial court failed to consider whether to appoint counsel for an incarcerated father pursuant to the statute, even though the father had not specifically indicated to the court that he was indigent.  The court stated:


His opposition was made pro se, so obviously at the time of filing his opposition, the biological father was unrepresented by legal counsel. Although the biological father's opposition does not explicitly state that he could not afford an attorney, notably, he was incarcerated at the time he responded pro se. The record does not indicate that the trial court made any attempt to determine whether the biological father was entitled to the appointment of counsel. It would appear that the fact that the biological father made his opposition pro se and he was incarcerated, the trial court had a strong indicator that the biological father was unable to afford an attorney. Considering the seriousness of the matter—termination of the biological father's parental rights—at the very least, an inquiry should have been made as to whether he needed the appointment of legal counsel. The record does not reflect that the trial court made any such inquiry. That was clearly in error.


See also In re T.E.N., 171 So. 3d 1219, 1222-23 (La. App. 2015) (finding that father properly requested determination of whether he was entitled to appointed counsel, and that “While the trial court mentioned the fact that self-representation could pose some ‘procedural issues,’ the trial court clearly failed to inquire into Mr. Naquin's financial situation and as to whether due process required that Mr. Naquin be appointed counsel to represent him in this serious matter where termination of his parental rights was at stake”; court also finds father did not waive counsel.)


When a parent voluntarily surrenders the child for adoption, La. Child Code Ann. art. 1121 specifies that “the surrendering parent and his representative, if applicable, or the child’s tutor, as provided in Article 1108, shall be represented at the execution of the act by an attorney at law licensed to practice law in Louisiana; however, the attorney representing such person shall not be the attorney who represents the person who is the prospective adoptive parent, or an attorney who is an associate, partner, shareholder, or employee of the attorney, law firm, or corporation representing the prospective adoptive parent.”

Appointment of Counsel: categorical Qualified: yes