Right to counsel

Indigent parents are entitled to counsel in termination proceedings if they make it known that they want counsel. Per Ga. Code Ann. § 15-11-262(j):

A party other than a child shall be informed of his or her right to an attorney prior to the adjudication hearing and prior to any other hearing at which a party could be subjected to the loss of residual parental rights. A party other than a child shall be given an opportunity to: (1) Obtain and employ an attorney of the party’s own choice; (2) To obtain a court appointed attorney if the court determines that the party is an indigent person; 3) Waive the right to an attorney.

The summons shall notify the parent of this right. Ga. Code Ann. § 15-11-281.

In In the Interest of J.I.H., the Georgia Court of Appeals interpreted a prior version of the statute to hold that the trial court is not required to appoint counsel when the parent never applied for appointment of an attorney or tried to demonstrate indigence prior to the hearing. 383 S.E.2d 349, 351 (Ga. Ct. App. 1989).  It is unclear whether the parent in J.I.H. was ever informed as to her right to counsel; the court only notes that parent never asked for counsel.  If the parent’s failure to be informed of the right led to her failure to make a request, this ruling would probably be incorrect.  Additionally, see In the Interest of A. M. A., 607 S.E.2d 916 (Ga. Ct. App. 2004) (where parent indicated desire to retain counsel but then appeared pro se and it was unclear whether she was indigent, court holds that “it was incumbent on the court to make inquiry into appellant’s financial status and properly determine whether she was indigent”; court’s failure to do so was error despite warning court gave the mother about having to apply for appointed counsel); In the Interest of M. G. W., 801 S.E.2d 102, 106 (Ga. Ct. App. 2017) (mother clearly wanted counsel where she hired lawyer to pursue claim that prior appointed counsel was ineffective; where newly hired lawyer failed to appear, “perhaps because of the mother’s inability to pay fully”, trial court did not make indigency determination or determination that mother waived right to counsel; “Rather, the court appears to have concluded that the mother was not indigent yet failed to employ reasonable diligence in obtaining her own counsel and, as a result, forfeited her right to counsel… Under these circumstances, we must vacate the trial court’s denial of the mother’s motions to set aside/vacate and for reconsideration, and remand the case to the trial court.”).

Recently, the Georgia Court of Appeals reversed its own precedent and held that parents denied their statutory right to counsel in termination proceedings do not have to demonstrate harmful error in order to obtain an automatic reversal. In re J.M.B., 676 S.E.2d 9, 12-13 (Ga. Ct. App. 2009).  In reaching this conclusion, the court held that “when the state is terminating a parent’s ‘fundamental and fiercely guarded right’ to his or her child, although technically done in a civil proceeding, the total and erroneous denial of appointed counsel during the termination hearing is presumptively harmful because it calls into question the very structural integrity of the fact-finding process.”  Id.  The court also relied on the Georgia Supreme Court’s mandate that TPR proceedings “should be attended only by the most stringent procedural safeguards.” Id. at 780 (quoting Sanchez v. Walker Cty. Dep’t of Family and Children Servs., 229 S.E.2d 66, 70 [Ga. 1976]).  The court added that “to waive a right as fundamental as effective counsel, the trial court must, on the record, determine that the waiver is knowing, intelligent and voluntary.”  Id. (citation omitted).  See also In re S.N.H., 685 S.E.2d 290 (Ga. Ct. App. 2009) (noting that while parental termination proceedings are more civil than criminal in nature, parents are given some rights criminal defendants are given, such as appointment of counsel); but see In re D.R., 681 S.E.2d 218, 223 n.2 (Ga. Ct. App. 2009) (noting that “[b]ecause ‘termination of parental rights cases are more civil in nature than criminal[,]’ … we apply the harmless error rule for civil cases.”).