Discretionary appointment of counsel

In Watson v. Division of Family Services, the Court held that due process under both the Delaware and federal constitutions only requires a case-by-case analysis to determine whether to appoint counsel in dependency cases. 813 A. 2d 1101, 1107 (Del. 2002).  The Watson court relied on Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), and the factors from Mathews v. Eldridge, 424 U.S. 319, 335 (1976), as well as its prior holding in In re Carolyn S. S., 498 A.2d 1095 (Del. 1984), that had  “adopted the Lassiter presumption in construing the Delaware Constitution instead of holding that there was a fixed rule of entitlement to counsel for indigent parents in all termination proceedings.” Watson, 813 A.2d at 1108.

After ruling that the case-by-case approach applied, the Watson court turned to the case before it and concluded the mother in question had been denied her due process right to counsel, relying in part on the mother’s mental health issues that increased the risk of error. Id. at 1111-12.  The Watson court also articulated many general sources of error in dependency/neglect proceedings:

(1) from the outset of proceedings, indigent parents are the only parties who do not have appointed legal representation;

(2) parents in these proceedings are “often dysfunctional, usually due to … substance abuse”;

(3) indigent parents are particularly ineffective litigants;

(4) it is unrealistic to expect these parents to “turn their lives around” and thereby prove that they should regain parental rights “without an attorney to advocate their need for the reunification resources that are available through the [State agency].”

Id. at 1110-11.  Similarly, the court in Hughes v. Div. of Family Services observed that the risk of error in dependency cases was significant, and that such risk “will routinely require the appointment of counsel at State expense for indigent parents in every dependency and neglect proceeding to ensure that an erroneous result does not occur.” 836 A.2d 498, 509 (Del. 2003).

However, the Hughes court noted that a recently enacted court rule required appointment of counsel in all cases. Id. In making appoint of counsel a routine matter, the court reasoned that the rule would greatly diminish the instances of parents not being provided counsel, thereby reducing the number of times the appellate court would have to determine whether denial of counsel was harmless. Id. at 509. (“In 2002, the Family Court Civil Procedure Rules were amended to provide for mandatory appointment of an attorney in the case of an indigent party if so requested by that party. Consequently, it should be unnecessary to conduct a harmless error analysis in future cases because the Family Court will routinely be appointing counsel to represent an indigent parent in a dependency and neglect proceeding.”).  The Hughes court then went on to determine that the failure to appoint counsel in this case was harmless. Id. at 512 (relying on the fact that mother was incarcerated throughout the dependency proceedings and the lack “of a suitable placement for the Minor Child other than foster care”).

This court rule was amended in 2015 to remove the mandatory appointment provision.  Appointments under the rule are now made on a case-by-case basis, and appellate courts have applied the harmless error standard on appeal. See Del. Fam. Ct. Civ. R. 206 (Formerly, Rule 207); see also Delaware: Discretionary Appointment of Counsel, Court Rule or Initiative, Abuse/Neglect/Dependency – Accused Parents.  However, as of 2024, appointment of counsel is now mandatory under Del. Code tit. 13, § 2504(g).  See 10/25/2024, Legislation, Abuse/Neglect/Dependency – Accused Parents, Termination of Parental Rights (State) – Birth Parents, Delaware finally enacts right to counsel for parents.