Right to counsel

In State ex rel. LeMaster v. Oakley, 203 S.E.2d 140, 143 (W. Va. 1974), the court held that while temporary changes in custody as a result of abuse/neglect allegations might not require counsel, longer deprivations require counsel "because of the requirements of the Due Process clauses of the West Virginia and United States Constitutions." The court found this requirement because, among other things, the issues at stake in the hearing "suggest distinctions of subtle and uncommon variety to the semanticist and legal scholar. To laymen parents, in fear of losing children of their body, the words employed in those vague charges are bewildering and paralyzing."  The court also noted the imbalance of power between the state and the indigent litigant, as well as the possibility of criminal charges down the road as the result of an abuse/neglect finding. The court also pointed out that it had ignored the civil/criminal distinction in determining whether due process requires the appointment of counsel for the indigent in State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W. Va. 1974) (right to counsel in civil commitment proceedings), as well as in a prior case finding a right to counsel for juveniles in delinquency proceedings. The court also noted, "[t]he vast majority of reviewing courts of our sister and federal jurisdictions have adopted the precise view which we adopt today."  Id. at 145.

The high court had a chance to revisit its Oakley opinion in Matter of Lindsey C., 473 S.E.2d 110, 122 n.12 (W. Va. 1995), and rejected the idea that the U.S. Supreme Court's decision in Lassiter v. Dep't of Social Services, 101 S.Ct. 2153 (1981) (finding no Fourteenth Amendment categorical right to counsel in termination of parental rights proceedings) negated its holding on the right to counsel in abuse/neglect proceedings. The Lindsey C. court stated that nothing in Lassiter "relieves this State of compliance with one or more of these protections which have been recognized in West Virginia as constitutionally mandated. We suggest that these protections are grounded in Art. III, § 10 of the Constitution of West Virginia in addition to whatever vitality they derive from the federal Constitution." Lindsey C., 473 S.E.2d at 122 n.12. The court in Lindsey also held:

[E]xperience justifies the trial courts in indulging a presumption that the parent or parents and custodians entitled by law to be named in abuse and neglect petitions 'cannot pay for the services of counsel'. This presumption is also justified by the high importance which our State and its citizens attach to prompt and effective protection for abused and neglected children and to full, fair and meaningful opportunity for parents and custodians to be heard when allegations of abuse and neglect are made. Therefore, circuit courts should appoint counsel for parents and custodians required to be named as respondents in abuse and neglect proceedings incident to the filing of each abuse and neglect petition. Upon the appearance of such persons before the court, evidence should be promptly taken, by affidavit and otherwise, to ascertain whether the parties for whom counsel has been appointed are or are not able to pay for counsel. In those cases in which the evidence rebuts the presumption of inability to pay as to one or more of the parents or custodians, the appointment of counsel for any such party should be promptly terminated upon the substitution of other counsel or the knowing, intelligent waiver of the right to counsel. Counsel appointed in these circumstances are entitled to compensation as permitted by law.

The language about appointing "incident to the filing of each abuse and neglect petition" is broader than the original language from LeMaster, which had suggested that some temporary abuse/neglect proceedings might not warrant counsel due to the deprivation being too short.