Right to counsel

Key_development Question_mark

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

The Alaska Supreme Court has said that indigent parents have a right to counsel in termination of parental rights cases under the state constitution's due process clause. V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (relying on Flores v. Flores, 598 P.2d 893, 895 [Alaska 1979], which had extended the right to abuse/neglect cases: holding that Alaska Constitution’s due process clause “requires the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or of prolonged separation from a child,” and stating that “[t]he interest at stake in this case is one of the most basic of all civil liberties, the right to direct the upbringing of one's child”).  In doing so, the court noted that it was providing a more expansive right than recognized under the federal Constitution:

The United States Supreme Court has recently held in Lassiter … that indigent parents do not have an automatic right to counsel under the United States Constitution in proceedings brought to terminate their parental rights. Our decision, however, is in accordance with the growing number of jurisdictions which have held that the right to counsel in termination proceedings exists under the state constitution. 


V.F., 666 P.2d at 45 n.3.  The V.F. court also held that the constitutional right to counsel in a proceeding brought to terminate parental rights includes the right to effective assistance. 666 P.2d at 45 n.4 (emphasis added).  But "[t]he right to the effective assistance of counsel does not extend … to the right to reject appointed counsel and have new counsel appointed in the absence of any showing of cause for such change." P.M. v. State, 42 P.3d 1127, 1133 (Alaska 2002). 

In P.M., a father who faced the termination of his parental rights refused to work with two separate appointed attorneys, threatened them, and filed bar complaints against them. Id. at 1130.  The Alaska Supreme Court upheld the Superior Court’s refusal to appoint replacement counsel, relying on a large body of case law refusing to so appoint where the “request for replacement counsel lacked merit or was being used as a delay tactic.” Id. at 1133 (citing Coleman v. State, 621 P.2d 869, 877–78 [Alaska 1980]).

Appointment of Counsel: categorical Qualified: no