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).
Litigation, Termination of Parental Rights (Private) - Birth Parents
In In re R.E.S., 978 A.2d 182 (D.C. 2009), the court applied the statutory right to counsel for dependency/neglect proceedings (D.C. CODE § 16-2304) to an adoption consent waiver proceeding.
In an earlier case, In re Adoption of J.A.P., 749 A.2d 715, 717-18 (D.C. 2000), the court was asked to consider whether it was a violation of equal protection to provide counsel to parents in termination of parental rights proceedings but not contested adoptions that could effectively lead to a termination of parental rights. However, the court pointed out that there was no active controversy in the instant case, as the trial court judge had asked the Children’s Law Center to represent the birth parent pro bono, and the Children’s Law Center had accepted.
Also note that D.C. Code § 16-316(a) states,
When a petition for adoption has been filed and there has been no termination or relinquishment of parental rights with respect to the proposed adoptee or consent to the proposed adoption by a parent or guardian whose consent is required ..., the Court may appoint an attorney to represent such parent or guardian in the adoption proceeding if the individual is financially unable to obtain adequate representation.
Without the court's ruling in R.E.S., therefore, appointment of counsel would be discretionary.
Another issue before the R.E.S. court was the effective assistance of counsel. 978 A.2d 182 (D.C. 2009). Looking to the statute governing family court proceedings, the court discerned congressional intent to require effective representation:
Considering D.C.Code § 16–2304(b)(1) (2001) in conjunction with D.C.Code § 11–1103 (2009 Supp.) and Administrative Order 03–07, we hold that parents who are represented by appointed counsel in a termination of parental rights proceeding have a statutory right to the effective assistance of counsel.
Id. at 189. The court adopted the test from Strickland v. Washington, 466 U.S. 668 (1984) to measure whether counsel was ineffective. R.E.S., 978 A.2d at 189-93.
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