Right to counsel
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
Legislation, Termination of Parental Rights (State) - Birth Parents
A court rule requires appointment of counsel for indigent parents at all stages of a termination of parental rights (TPR) case brought by the state or a state-funded entity, including the Alaska Legal Services Corporation or the Alaska Pro Bono Program, where:
- the reason for TPR is not due to an alleged act of sexual assault or sexual abuse of a minor that resulted in conception of the child; or
- the indigent parent is defending against a claim that their consent is not required.
AK R ADOPT Rule 8(3); see also Alaska Stat. Ann. § 25.23.180(h).
The rules governing Child In Need of Aid (CINA) proceedings would also presumably apply in the TPR context and require appointment for indigent parents at all stages of state-initiated TPR matters. AK R CINA Rule 12(a)-(b)(1). The court must inform the parent of their right to counsel at the first hearing the parent attends. AK R CINA Rule 12(a).
Appointment is also required "for a parent on active military duty who has not appeared prior to entry of an adjudication" and for "an absent parent at any hearing in which the termination of parental rights is or may be in issue if the parent has failed to appear after service of notice, ... and the court concludes that a continuance is not likely to result in the attendance of the non-appearing parent." AK R CINA Rule 12(b)(2); AK R CINA Rule 12(d). However, the court need not appoint counsel for such a parent "if the court is satisfied that the identity of the parent is unknown." AK R CINA Rule 12(d). Under Rule 12, the right to counsel may be waived "by any party if the court determines that the party understands the benefits of counsel and knowingly waives those benefits." AK R CINA Rule 12(c).
Finally, parents whose rights have already been terminated may retain the right to counsel in two circumstances. First, pursuant to Alaska Stat. § 47.10.089(i), if there is a petition for reinstatement of parental rights by a person who previously relinquished them, that person is entitled to appointment of counsel to the same extent as if the parent's rights had not been terminated in a child-in-need-of-aid proceeding.
Second, parents who voluntarily relinquish their parental rights may have the right to counsel 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:
- 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
- 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.").
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: no