Right to counsel

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

In In re Adoption of R.I., 312 A.2d 601 (Pa. 1971) the Supreme Court of Pennsylvania cited a string of U.S. Supreme Court decisions for the principle that an individual is entitled to counsel at any proceeding that may lead to the deprivation of "substantial rights", such as a termination of parental rights case. Although the court acknowledged that the cases referred to were all criminal, it stated that "the logic behind them is equally applicable to a case involving an indigent parent faced with the loss of her child."  The court cited to a New York Court of Appeals case, In re Ella B., to support its position that due process requires that an indigent parent facing potential involuntary termination of parental rights must be appointed counsel, as such a proceeding implicates the "parent's concern for the liberty of the child, as well as for his care and control . . . ."  The court stated that it would be "grossly unfair to force appellant to defend against the appellees' case without the assistance of someone, trained in the law, who could test the appellees' case by the rules of evidence and the techniques of cross-examination."   The court added that the right to counsel exists even when it is, for instance, the child's foster parents, not the state, who institute the action. The court did not explicitly indicate whether the right to counsel was predicated upon the due process guarantees of the U.S. or Pennsylvania Constitution. However, in identifying the basis of its threshold statement that counsel is required in a proceeding that may lead to the deprivation of "substantial rights," it cited numerous U.S. Supreme Court decisions interpreting the U.S. Constitution's Due Process Clause.


The U.S. Supreme Court's subsequent decision in Lassiter v. Dep't of Social Services of Durham County, 101 S.Ct. 2153 (1981), cast doubt on the validity of In re Adoption of R.I, because it is unclear whether the Pennsylvania Supreme Court was employing federal or state constitutional standards. As one judge noted:


Lassiter has undermined Adoption of R.I., at least insofar as Adoption of R.I.'s broad right to counsel holding was based on the federal due process clause. It is unclear, however, whether Adoption of R.I. was decided solely on federal grounds. This court has previously suggested that Adoption of R.I. could be viewed as a state constitutional law decision. [Citation omitted.]  I would find that the Pennsylvania Constitution provides an adequate and independent basis for extending the right to appointed counsel in involuntary termination proceedings to all indigent parents.


In re Adoption of T.M.F, 573 A.2d 1035, 1051 (Pa. Super. Ct. 1990) (Beck, J., concurring). See also Corra v. Coll, 451 A.2d 480, 485 n.7 (Pa. Super. Ct. 1982) (stating that In re Adoption of R.I. court was unclear as to whether its final disposition was based on state or federal grounds and that Pennsylvania state courts interpreting state constitution have right to increase substantive and procedural minimums set forth in federal decisional law). However, in In re Adoption of L.J.B., 995 A.2d 1182 (Pa. 2010) (per curiam), the Supreme Court of Pennsylvania "remanded to the trial court for a determination of whether Petitioner is eligible for the appointment of counsel. See In re Adoption of R.I. … Should the trial court determine that Petitioner is eligible for the appointment of counsel, then counsel shall be appointed by the trial court."  This suggests that Adoption of R.I. still has vitality under the state constitution.

Appointment of Counsel: categorical Qualified: yes