Discretionary appointment of counsel

Key_development Question_mark

Litigation, Termination of Parental Rights (Private) - Children

In Matter of D., 24 Or.App. 601 (Ct. App. 1976), the court held that appointment of counsel for children in contested adoption proceedings (and generally in proceedings that can sever the parent-child relationship) is on a case-by-case basis. Only two years prior, the same court had held in State ex rel. Juvenile Department v. Wade, 19 Or.App. 314, 323 (Ct. App. 1974), that children had a categorical right to independent counsel in such proceedings, owing to the consistent potential for conflicts of interest between the parents and their children. However, in Matter of D., the court held that


the rule set forth in Wade is needlessly inflexible and has in application failed to serve the purposes for which it was designed; we are now satisfied that due process does not, in fact, require the presence of independent counsel in every case and that the implementation of a rule to that effect will, in many cases, fail to enhance the protection of the interests of children while unnecessarily complicating proceedings already involving difficult and complicated issues.


The court justified its change in direction by arguing that some children were too young to properly utilize a client-directed attorney, while in other cases, the child's best interest could be adequately protected by other parties to the litigation. The court concluded that its new rule would "permit[] the trial court to determine on a case-by-case basis whether separate counsel for the child is required in any given termination or adoption proceeding."  Neither Matter of D. nor Wade made clear which constitution they were addressing, although both relied heavily on U.S. Supreme Court precedent.

Appointment of Counsel: discretionary Qualified: no