Right to counsel

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

A line of Arizona cases that partially predates Lassiter holds that the right to appointed counsel in some parental rights cases has a due process basis.  

In Ariz. State Dep’t of Public Welfare v. Barlow, the Arizona Supreme Court held the denial of a parent’s request to be represented by their own retained counsel in a dependency hearing violated due process. 296 P.2d 298, 300 (Ariz. 1956).  The court did not explicitly say whether it was analyzing the state or federal constitutional right to due process, although it did state that while the Arizona Constitution “provides distinctive procedure in juvenile matters, there is no language used from which an intention can be inferred to dispense with the fundamental rights of parents appearing” before a court of general jurisdiction in a juvenile matter. Id. at 301.  

Appellate courts have subsequently relied on Barlow to conclude that appointment of counsel in a severance proceeding is not merely required by statute, but a matter “of constitutional dimension.” Daniel Y. v. Ariz. Dep't of Econ. Sec., 77 P.3d 55, 58 (Ariz. Ct. App. 2003); see also Christy A. v. Ariz. Dep't of Econ. Sec., 173 P.3d 463, 471 (Ariz. Ct. App. 2007) (holding that “fair procedure” entitled an indigent mother to representation by appointed counsel in a dispositive evidentiary hearing related to an action for termination of her parental rights); Sarah D. v. Ariz. Dep't of Econ. Sec., 2009 WL 5149958, at *8 (Ariz. Ct. App. 2009) (unpublished) ( “an indigent person has the right to appointed counsel both by statute and pursuant to constitutional guarantees of due process”, and citing to Daniel Y.) (Kessler, J., concurrence); Denise H. v. Ariz. Dep't of Economic Sec., 972 P.2d 241, 243 (Ariz. Ct. App. 1998) (stating that in termination of parental rights cases, “[a]n indigent parent against whom a petition has been filed has the right to appointed counsel, but that right is afforded by statute … and the due process clause ....”).

In Daniel Y., the court held that a father’s due process rights were violated when the juvenile court severed his parental rights without providing him with appointed counsel.  77 P.3d 58-59.  The court stated that the statutory requirement of appointment of counsel for indigent persons involved in parental termination is protected and may not be changed by the state without due process of law and strict compliance with the statutes, Id. at 58, and further held that a failure to appoint counsel rendered any decision automatically void and reversible. Id at 58.[1]  This fundamental interest in the care and custody of children was also the decisive factor for the court in Christy A.  There, the court reasoned that because parents have a fundamental due process interest in the care, custody, and control of their children, “when the State acts to terminate this right, it must provide appropriate fair procedures.” 173 P.3d at 470.


The high court has not revisited Barlow, a case decided prior to the U.S. Supreme Court holding that there is no federal constitutional right to counsel in termination cases, and it is unclear whether Barlow rested at all on the state constitution.

As to waiver of the right to counsel, an appellate court recently found that a father's failure to appear did not constitute a knowing, intelligent, and voluntary waiver of his right to counsel. In re P.P., No. 1 CA-JV 22-0278, 2023 WL 4011281 (Ariz. Ct. App. June 15, 2023).  The court reversed and remanded the termination of his parental rights, finding a due process violation where father was unrepresented at the time his rights were terminated:


Regardless of Father’s lackluster involvement, however, as an indigent parent his right to counsel was not contingent upon his efforts to reunify with Penelope... And though Father was provided notice of the possible consequences of failing to appear for the initial termination hearing, including terminating his parental rights, Father was not—nor should he have been—notified that his failure to appear at a scheduled hearing could result in waiving his right to court-appointed counsel.

P.P., 2023 WL 4011281, at *2 (citing Manuel M. v. Ariz. Dep't of Econ. Sec., 181 P.3d 1126, 1132 [Ariz. Ct. App. 2008]).



[1] On the issue of automatic reversibility of trial court hearings where counsel is not appointed, see also Ariz. State Dep't of Pub. Welfare v. Barlow, 296 P.2d 298, 300 (1956); Pima County Juv. Action No. J-64016, 619 P.2d 1073, 1075 (Ariz. Ct. App. 1980).


* The reader should note that unpublished decisions are not precedential per Ariz. R. SupCt., Rule 111(c) and may only be cited for the limited purposes detailed in the rule.

Appointment of Counsel: categorical Qualified: yes