Delaware grants right to counsel for children in termination cases

Key_development Question_mark

09/22/2016, Legislation, Termination of Parental Rights (State) - Children

Del. Code tit. 13, § 2504(f) used to require the court to appoint either an attorney or a court-appointed special advocate (CASA) for termination cases. However, in 2017, the legislature amended Del. Code tit. 13, § 2504(f) to require appointment of an attorney ad litem and allow the additional appointment of a CASA:

When a petition is filed under this chapter, the Court shall appoint an attorney authorized to practice law in this State to represent the child. When appointing an attorney, the Court may also appoint a Court Appointed Special Advocate volunteer to work in conjunction with the attorney. The rights, responsibilities and duties in representing the child are set forth in § 9007A of Title 29. For the purposes of the Child Abuse Prevention and Treatment Act (42 U.S.C. § 5106a, et seq.), the attorney for the child and the Court Appointed Special Advocate volunteer, if one is appointed, shall fulfill the role of guardian ad litem for the child.


Although this code provision does not address the attorney's role, Del. Code Ann. tit. 29, § 9007A clarifies that the attorney fulfills the role of guardian ad litem.  Accordingly, the child's right to counsel is classified as categorical but qualified, since the attorney serves in an ad litem role and not a client-directed role.


As to the role of the CASA, Del. Code Ann. tit. 29,§ 9007A(c)(15) adds that the CASA is responsible for determining the child's wishes and making those wishes known to the court.  If the attorney ad litem finds that there is a conflict between the child's wishes and the attorney ad litem's determination of the child's best interests, the attorney ad litem must notify the court of the conflict. § 9007A(c)(15).  In the event of a conflict, "the court shall determine how to remedy the conflict such that the child's best interests and wishes are represented." Id.

In addition, Del. Fam. Ct. Civ. R. 207 permits the court to appoint client-directed counsel for the child. See Right to attorney ad litem, Court Rule or Initiative, Termination of Parental Rights (State) - Children.


Finally, Del. Code tit. 13, § 1116(c) previously allowed the court to appoint counsel for children with regards to petitions to reinstate parental rights.  However, a 2021 amendment removed this discretionary appointment provision. 

Appointment of Counsel: categorical Qualified: yes