Discretionary appointment of counsel

Key_development Question_mark

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

There is no separate termination statute; instead, termination is treated as one type of disposition for a dependency petition. See 33 V.S.A. §§ 5318(a)(5). Additionally, Vt. R. Fam. P. Rule 3 says the procedures specified in Rule 2 (which include appointment of counsel) also apply to termination proceedings. Consequently, any counsel that is assigned for the dependency for the parent (which, according to Vt. Stat. Ann. tit. 13, § 5232, occurs when the "interests of justice so require") would continue through the termination phase.


The Vermont Supreme Court has also said, "Although in theory the appointment of counsel under § 5232(3) [] remains discretionary, in practice counsel are uniformly appointed to represent needy parents in termination proceedings from trial through appeal."  In re S.C., 88 A.3d 1220 (Vt. 2014). 


Additionally, parents have a right to counsel in Adoption Act terminations, as per 15A V.S.A. § 3-201, and it is extremely unlikely that a parent could be guaranteed counsel in a private termination (adoption) but be denied counsel in a state-initiated termintaion.


Finally, "By administrative order, this Court has also ensured continued representation of aggrieved parents on appeal, by providing that an appeal from a termination judgment is not considered a separate proceeding and thus does not require a separate application for the services of appellate counsel at state expense.' A.O. 4, § 4(c)(1)."  In re S.C.88 A.3d 1220 (Vt. 2014).

In In re M.T., 2017 VT 104 (2017), the court held that this appointment of counsel extended to Rule 60(b) motions to reopen a termination decision.  It observed that the statute states that appointment “includ[es] any subsequent proceedings arising from an order therein”, and the court added that “In enacting the statutory scheme for juvenile proceedings, the Legislature specifically contemplated that a Rule 60 motion is a ‘subsequent proceeding[]’ that may arise.”  The court also concluded that the failure to appoint counsel was not harmless, and added that “Because we conclude that the circumstances in this case are sufficient to support an inference of prejudice, we need not consider whether the denial of the statutory right to counsel to parents in juvenile proceedings is presumed to result in prejudice as a matter of law.”

Appointment of Counsel: discretionary Qualified: no