Right to counsel

Key_development Question_mark

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

A court rule requires appointment of counsel for indigent parents in adoption cases if:


(1) the potential adoptee is an Indian child;

(2) the adoption alleges that the parents commited sexual assault/abuse resulting in the conception of a child and termination is in the best interests of the child; or

(3) the adoption seeks to bypass the consent requirements.


AK R ADOPT Rule 8.  

In the case of a parent whose parental rights are being terminated due to alleged sexual assault or sexual abuse of a minor, "the court shall appoint the office of public advocacy to represent the respondent in the proceedings.” Alaska Stat. Ann. § 25.23.180(h).  For the last situation (adoptions seeking to bypass consent), Alaska Admin. R. 12(e) specifies that for any appointments of counsel required by the constitution but not covered by an existing statute, the court appoints a member of the Alaska Bar Association, and according to the Alaska Courts’ Customer Service Division, these appointments are paid by the court itself. See Matter of K.L.J., 813 P.2d 276, 278 (Alaska 1991) (finding due process-based right to counsel in situations where bypass of consent is sought)

Parents who voluntarily relinquish their parental rights may have the right to counsel even after relinquishment in certain hearings about retained privileges.  For example, a parent whose rights were relinquished may retain the ability to have future contact, communication, and visitation with the child.  Alaska Stat. § 25.23.180(j).  The court incorporates the privileges into the order terminating parental rights (“termination order”), with a recommendation that the privileges also be incorporated into an adoption or legal guardianship decree.  Id.  The right to counsel attaches to the following matters:

  1. The parent seeks "enforcement or modification of or to vacate a privilege retained in the termination order" under Alaska Stat. § 25.23.180(l); and
  2. The child's guardian or prospective adoptive parent seeks to prevent the privilege from being incorporated into the guardianship or adoption order under Alaska Stat. § 25.23.180(m).

Alaska Stat. § 25.23.180(n) ("A person who relinquished parental rights is entitled to the appointment of an attorney if a hearing is requested under (l) or (m) of this section to the same extent as if the parent's rights had not been terminated in a child-in-need-of-aid proceeding.").


Appointment of Counsel: categorical Qualified: no