Right to counsel

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

In In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972), the high court held that under the Due Process Clause (it did not indicate whether it was addressing the state or federal constitution, or both), an indigent person is entitled to appointed counsel in neglect proceedings where that person faces a loss of child custody. 


Although Ella B. was decided before Lassiter, courts since Lassiter have relied upon Ella B. (and its progeny) to hold there is a right to counsel for parents in termination cases, and have not mentioned Lassiter. See, e.g., In re Evan F., 815 N.Y.S.2d 697, 699 (App. Div. 2006); People v. Smith, 465 N.E.2d 336, 339 (N.Y. 1984) (holding that "due process and equal protection require the assistance of counsel when rights and interests as fundamental as those involved in the parent-child relationship are at stake", and citing Ella B., 285 N.E.2d 288 (N.Y. 1972)).


In re St. Luke's-Roosevelt Hosp. Ctr., 607 N.Y.S.2d 574, 577 (Sup. Ct. 1993), aff’d, 89 N.Y.2d 889 (N.Y. 1996), the court listed Ella B among the cases extending a right to counsel in certain types of civil cases, but when it then noted how some of these cases rested on the state constitution, it did not include Ella B in that second list. However, later in the opinion, the St. Luke's court commented, "In Lassiter, supra, the Supreme Court held that counsel was not inevitably required even in termination proceedings. However, our Court of Appeals has held counsel mandated both in termination and neglect proceedings, thus demonstrating a greater commitment to the protection of liberty interests under the state constitution than is necessarily required under the Federal constitution."

Appointment of Counsel: categorical Qualified: yes