Right to counsel

NMSA 1978, § 32A-5-16(E) requires that in proceedings to terminate parental rights in connection with adoption, “[t]he court shall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court’s discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys.”)  See also Rule 10-314 NMRA (providing that “[a]t the first appearance of the respondent on an abuse or neglect petition or a termination of parental rights motion,” respondent must be notified of right to appointed attorney if indigent); Rule 12-303 NMRA (requiring that unless respondent retains private counsel in a termination of parental rights proceeding, “trial counsel shall be responsible for obtaining an order appointing appellate counsel”; for appeals filed by the state, trial counsel is responsible for representing respondent or defendant on appeal unless, within five days after service of notice of appeal, trial counsel files order appointing appellate division of the public defender department).

In 1998 the New Mexico Court of Appeals explained in New Mexico ex rel. Children, Youth & Families Dep’t v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158 (1998) that the right to effective counsel (as guaranteed by the Sixth Amendment to the United States Constitution in criminal cases) extends to the statutory right to counsel in termination cases. See also New Mexico ex rel. Children, Youth & Families Dep’t v. Vanessa C., 2000-NMCA-025, ¶ 32, 128 N.M. 701, 997 P.2d 833 (stating that “[a] parent has the right to effective counsel in termination cases.”). Based on this principle, the Court of Appeals in Tammy S. held that “in a domestic violence situation where zealous advocacy in one respondent’s case may threaten to damage a co-respondent’s case, a court should appoint separate counsel.”