Right to counsel

In Orr v. Knowles, 337 N.W.2d 699, 706 (Neb. 1983), the Nebraska Supreme Court cited a pre-Lassiter case, State v. Caha (In re Friesz), 208 N.W.2d 259 (Neb. 1973), which had found an absolute right to counsel in termination of parental rights cases based on a reliance on cases from other jurisdictions. Orr then added:

The same result has been reached by several of the federal courts. [See Lassiter], 452 U.S. 18 [] (1981); [Davis v. Page], 640 F.2d 599 (5th Cir.1981). The courts in these cases rely on the fact that a substantial right is involved and the fact that the indigent individual involved faces the state as an adversary which will surely be represented by legal counsel. Under the idea of fundamental fairness such individuals must themselves be represented by counsel before being deprived of their rights.

However, Lassiter did not find an absolute right to counsel in TPR cases, but rather held it was a case-by-case determination. Then, in Interest of R.R., 475 N.W.2d 518 (Neb. 1991) (finding no right to counsel for mother in temporary detention proceeding in which child adjudicated to be in need of care, due to diminished parental interest as compared to TPR and fact that errors can be corrected at adjudication proceeding), the court cited to its prior decision in Orr for the proposition that “such a situation requires the presence of counsel in termination of parental rights proceedings” (although the “situation” to which the court referred is not made clear). The court then stated:

Termination of parental rights, as in Lassiter and Caha, embodies perhaps the most important point of the parent’s interest; the parent stands to be permanently deprived of his or her fundamental parental rights. The State’s interest is in protecting the health, safety, and welfare of the child. The stakes affected by an erroneous decision are high—the parent’s rights in the child are severed completely and permanently. The holdings of Lassiter and Caha recognize that in this situation, due process prohibits proceeding without counsel.

It appears, therefore, that the absolute right to counsel in TPR proceedings is based on a misconception about the holding in Lassiter that continues to be perpetuated.