Right to counsel

Key_development Question_mark

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

Indigent respondents in termination of parental rights (TPR) matters have the right to counsel at every stage of the proceedings, including appeal, and must be informed of that right.  Effective January 1, 2009, Ala. Code § 12-15-63(b) was replaced with § 12-15-305 of the revised Juvenile Justice Code.  See Act No. 2008-277, Ala. Acts 2008.  The previous section provided indigent parents with a right to counsel in dependency cases only, and the right was conditioned upon request. Ala. Code § 12-15-63(b) (“In dependency cases, the parents, guardian or custodian shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own.”).


The revised provision expanded the right to counsel to include termination of parental rights cases, removed the request requirement, and made explicit the court’s obligation to notify respondents of their right to counsel.  However, even prior to passage of § 12-15-305, at least one court suggested the trial court was obliged to notify parents of their right to make a request for appointment of counsel.  Smoke v. State Dep’t of Pensions and Sec., 378 So. 2d 1149, 1150 (Ala. Civ. App. 1979) (“[t]he right of parents of the child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one protected by statute and court decision;” statutory right to counsel “place[d] upon the courts the duty of informing parents, guardians or custodians” of their right to appointed counsel, and failure to so advise parents constitutes reversible error).  Since § 12-15-305 explicitly places such an obligation on the trial court, this question is now moot.


Subsection (b) of the new provision provides:


In dependency and termination of parental rights cases, the respondent parent, legal guardian, or legal custodian shall be informed of his or her right to be represented by counsel and, if the juvenile court determines that he or she is indigent, counsel shall be appointed where the respondent parent, legal guardian, or legal custodian is unable for financial reasons to retain his or her own counsel.


Ala. Code § 12-15-305(b) (emphasis added).  A footnote to this new provision in the Annotated Guide prepared by the Alabama Administrative Office of the Courts explains:


This subsection will codify W.C. v. State Dept. of Human Resources, 887 So. 2d 251 (Ala. Civ. App. 2003), in which the court recognized that an indigent parent in a termination of parental rights (“TPR”) matter has a due process right under the Alabama Constitution to the assistance of appointed counsel.  Under this amended provision, a parent, legal guardian, or legal custodian who is a respondent in a TPR matter will be automatically entitled to appointed counsel, even if counsel is not requested.


Administrative Office of the Courts, Alabama Juvenile Justice Act of 2008 H.B. 28/29 - S.B. 33/34 Annotated Guide (2008), 82 n.81.  This footnote is not entirely accurate though, as the new provision actually codifies K.P.B. v. D.C.A., 685 So. 2d 750 (Ala. Civ. App. 1996).  W.C. v. State Dep’t of Human Res., 887 So. 2d 251, 253 (Ala. Civ. App. 2003) merely cites K.P.B. for the proposition that “a due process right to appointed counsel exists for indigents in termination-of-parental rights cases.”


Regardless, as the above-quoted footnote confirms, entitlement to appointed counsel for the respondent parent will no longer be conditioned upon a request for appointed counsel.  See also Ala. Code § 12-15-308(c) ("[a]t the commencement of the 72-hour hearing requirement, the juvenile court shall advise the parent, legal guardian, or legal custodian of the right to counsel and shall appoint counsel if the juvenile court determines he or she is indigent”); N.G. & P.G. v. Blount Cty. Dep’t of Human Res., 216 So. 3d 1227, 1235 (Ala. Civ. App. 2016) (“Section 12-15-308(c) creates a statutory duty on the part of a juvenile court to inform a parent at a shelter-care hearing of his or her right to counsel and to affirmatively investigate the ability of the parent to afford counsel if the circumstances indicate that the parent might be indigent.”) (internal citations omitted).


In its most recent interpretation of former Ala. Code § 12-15-63 (the dependency statute), the Court of Civil Appeals held that the right to appointed counsel where parental rights are at stake (including dependency cases) applies to every stage of the proceedings, including appeal. R.H. v. D.N., 5 So. 3d 1253, 1255 (Ala. Civ. App. 2008).  The R.H. court held that the Juvenile Court erred in failing to appoint the mother counsel when the dependency case was on appeal. Id.  Although the Court remanded the case to the juvenile court with instructions to appoint counsel for purposes of the appeal, two dissenting justices would have reversed the judgment terminating parental rights and ordered a new trial because the juvenile court had allowed the case to proceed while the mother was not represented by counsel, a remedy akin to that afforded to criminal defendants totally deprived of their Sixth Amendment right to counsel. Id. at 1256. 

Courts borrow from the criminal context in interpreting the right to counsel in TPR cases in other contexts as well.  Specifically, when an appointed attorney is relieved from representation due to a conflict of interest, another attorney must be appointed.  In J.A.H. v. Calhoun County Department of Human Resources, 846 So. 2d 1093, 1095 (Ala. Civ. App. 2002), the Court of Civil Appeals commented incorrectly that the right to appointed counsel in cases involving TPR differs from that in criminal trials, in that the latter right is constitutional while the former derives from statute.[1]  Notwithstanding this distinction, the court reasoned, the rights are sufficiently fundamental to warrant use of the procedural safeguards from the criminal context. Id.  In particular, the court borrowed from the criminal context to hold that once counsel appointed in a termination of parental rights case is relieved from representation on conflict grounds, the court must appoint new counsel, and the indigent party need not make a new request.  Id.  The Alabama Supreme Court has similarly analogized to appointed-counsel safeguards in criminal trials to allow a mother to collaterally attack the judgment terminating her parental rights on ineffective assistance of counsel grounds.  See Ex parte E.D., 777 So. 2d 113, 115–16 (Ala. 2000).   

Finally, indigent petitions have a discretionary right to counsel upon request: "Upon request and a finding of indigency, the juvenile court may appoint an attorney to represent the petitioner and may order recoupment of the fees of the attorney to be paid to the State of Alabama."  Ala. Code. § 12-15-305(a).

[1]              This statement by the court was not actually true, as the statute merely codified various constitutional rulings of Alabama courts relating to termination of parental rights proceedings.

Appointment of Counsel: categorical Qualified: no