Discretionary appointment of counsel

Several Arkansas courts have said that due process only requires appointment of counsel on a case-by-case basis in termination cases.

In Bearden v. Arkansas Department of Human Services, 42 S.W.3d 397 (Ark. 2001), the parent argued she had a constitutional right to counsel in TPR proceedings (the decision does not specify whether the parent was asserting both a federal and state right).  The Arkansas Supreme Court appeared to blend its federal and state constitutional analysis together:

Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness … Consequently, according to the [U.S.] Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings … Rather, it is an issue that must be addressed on a case-by-case basis … The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. § ACA 9-27-316(h) (Supp.1999).  However, this is a State-conferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel.

It is unclear from this wording whether the Arkansas Supreme Court chose to extend Lassiter’s case-by-case analysis to the state constitution or whether it was only speaking about the U.S. Constitution.  On the one hand, by articulating a case-by-case standard, the court appeared to forego the chance to “adopt higher standards of protection” for the state constitution as it refers to in the first sentence.  On the other hand, its “consequently, according to the Supreme Court” reference makes it appear as if it was still discussing the federal constitution only (since Lassiter is not binding on the state constitutional analysis).  In terms of application, the Bearden court “assum[ed] without deciding” that due process required the appointment of counsel and moved on to the question of whether the parent’s waiver satisfied constitutional waiver requirements.

In Battishill v. Arkansas Department of Human Services, 82 S.W.3d 178, 179 (Ark. Ct. App. 2002), the court articulated two “relevant factors” (both of which came from Lassiter) to consider in the case-by-case analysis as to whether “fundamental fairness” requires the appointment of counsel in a TPR case: “1) whether or not the case presented any specially troublesome points of law”, and 2) whether or not the presence of counsel could have “made a determinative difference.”  However, the Battishill court also simultaneously suggested that the State Legislature, by passing ACA 9-27-316(h), had definitively transformed the right to counsel in TPR cases into a fundamental constitutional right that obviated the need for a case-by-case due process analysis:

The dissent in Lassiter contends that “fundamental fairness” requires appointment of counsel in every case where a relationship between a parent and a child is being permanently severed. It is our opinion that the Arkansas General Assembly has come to the same conclusion by passing Arkansas Code Annotated section 9-27-316(h) (Supp.2000), which provides for the appointment of counsel in all parental-termination proceedings upon the request of the parent after being advised of the right by the court, thus preempting a fundamental fairness determination by the trial court prior to the due process right attaching

Id. at 180 (emphasis added).  The Battishill court then went on to analyze whether the parent at issue had waived her “fundamental right to counsel” without explicitly engaging in a due process analysis, although it noted in a cursory footnote that “[a]s Judge Baker’s concurrence points out, the case at bar does present troublesome points of law, and the presence of counsel could have made a determinative difference in the outcome of the case.” Id. at 179 n1.