Right to counsel

Key_development Question_mark

Legislation, Abuse/Neglect/Dependency - Accused Parents

Before the decision of the U.S. Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (finding no Fourteenth Amendment categorical right to counsel in termination of parental rights proceedings), the Oklahoma Supreme Court considered a case where a mother was not appointed counsel in a termination of parental rights case, notwithstanding a statute requiring that counsel be appointed in such cases. In re Chad S., 580 P.2d 983, 984-985 (Okla. 1978). The court commented that "[n]o decision of this court has previously required the trial court, as a matter of constitutional due process, to advise parents in a termination order of their right to court-appointed counsel if they are shown to be indigent."  However, it then went on to broadly state that "[t]he fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings. This includes the right to counsel." The court relied on a series of U.S. Supreme Court rulings for its decision.


After Chad S., the court specifically held in another pre-Lassiter case that parents have a right to counsel in dependency proceedings as well. In re F. K. C., 609 P.2d 774, 776 (Okl. 1980). The F. K. C. court construed Chad S. to be a holding based entirely on the Fourteenth Amendment and Oklahoma statutes, not on the state constitution, and noted that while Chad S. was only about termination of parental rights, "the court relied heavily on Davis v. Page, 442 F.Supp. 258, 263 (S.D. Fla. 1977), which involved a dependency hearing."   The court therefore concluded that "Chad S. holds that the due process clause of the Fourteenth Amendment and the statutes of the State of Oklahoma require that parents in dependency and neglect proceedings be advised of their right to assistance of counsel, and that if they cannot afford counsel that counsel will be appointed for them unless the right is knowingly and intelligently waived." 


However, not six months later, the Oklahoma Supreme Court inexplicably held that "[i]n deprived-status proceedings, a parent has no constitutional right to a state-provided lawyer."  Delaney v. State, 617 P.2d 886, 891 (Okla. 1980). The Delaney court did not distinguish Chad S. or F. K. C., although it cited both at one point. It is impossible to reconcile Delaney with F. K. C., unless the "deprived status" proceedings in Delaney are somehow different than the "dependency" proceedings referred to in  F. K. C.


The high court subsequently revisited the right to counsel in termination proceedings in a post-Lassiter case and found there is a right to counsel in such proceedings, including the right to effective counsel. In re D.D.F. 801 P.2d 703, 706 (Okla. 1990). nterestingly, the court rejected Lassiter in favor of its prior determination in In re Chad S., stating, "[a]lthough the federal constitution does not require that counsel be appointed in all termination proceedings, we believe that the rights at issue are those which are fundamental to the family unit and are protected by the due process clause of the Oklahoma Constitution, Art. 2, § 7." More recently, Oklahoma courts have found an abuse of discretion where a trial court refused to provide a continuance resulting in a mother being represented by a wholly unprepared counsel at hearing to terminate her parental rights. In re S.S., 90 P.3d 571 (Okla. Civ. App. 2004). 

It is unclear whether, after all of this, F.K.C. is still good law, as the court has not made a specific post-Lassiter pronouncement about the right to counsel in abuse/neglect proceedings.

Appointment of Counsel: categorical Qualified: yes