Right to counsel

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

In In re Howard, 382 So. 2d 194, 200 (La. Ct. App. 1980), the court of appeals in the Second Circuit held that "a minimum standard of due process under both the federal and state constitutions" (emphasis added) required appointed counsel for "indigent parents faced with charges of neglect and the possibility of removal of their child from their custody for an indefinite or prolonged period of time . . ."


The court relied on the strong interests at stake, commenting that "[t]he potential loss to the parent is grievous, perhaps more so than incarceration" and "can hardly be said to be less severe."  The court also discussed how certain factors justifying appointment of counsel in criminal proceedings are similar to factors present in abuse/neglect proceedings, and pointed to the imbalance of power in such proceedings.


Then, in State in Interest of Johnson, 465 So. 2d 134, 138 (La. Ct. App. 1985), the court relied on Howard as well as a number of U.S. Supreme Court cases (including Lassiter itself) to hold categorically that "constitutional due process mandates the appointment of counsel to represent indigent parents in a proceeding where the state seeks to terminate parental rights to a minor child in an abandonment proceeding."


However, on appeal of Johnson, the Louisiana Supreme Court appeared to rein in the court of appeals, citing to Lassiter for the proposition that "[t]he trial court is required to make a case-by-case determination as to whether failure to furnish counsel to the indigent parents would violate due process."  In re Johnson, 475 So. 2d 340, 342 (La. 1985). Additionally, Howard relied on a federal appellate case (Davis v. Page) that had found an absolute right to counsel at all critical stages of termination proceedings and that was subsequently vacated by the U.S. Supreme Court after Lassiter. On remand, the Florida Court of Appeals in Davis held that a case-by-case determination applied instead of an absolute right. 


Nonetheless, several courts subsequent to the Louisiana Supreme Court's statement in Johnson have stated that there is a due process right to counsel for parents in termination cases. See e.g. Lay v. McElven, 691 So. 2d 311, 313 & n.10 (La. Ct. App. 1997) (First Circuit) (holding that "the fundamental and constitutional right of parents to the custody and control of their children requires the appointment of counsel to indigent parents when the state seeks to remove their child from their home because of alleged abuse and neglect," and citing to Howard); State in Interest of S.N., 573 So. 2d 1178, 1180 (La. Ct. App. 1991) (Fifth Circuit) (noting language in Johnson about using a case-by-case approach, but relying on Howard to find that "due process requires that counsel be appointed for indigent parents in proceedings brought under La.R.S. 14:403.")

Appointment of Counsel: categorical Qualified: yes