Right to counsel – custodial guardianship of child
Relying on In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972) (finding due process and equal protection right to counsel in abuse/neglect cases), and Lassiter, the Surrogate’s Court held that a respondent-mother has a due process right to counsel in a guardianship proceeding that could terminate her right to custody and care of her child. In re Guardianship of Daley, 473 N.Y.S.2d 114, 115-16 (Surr. Ct. 1984) (“[B]asic concepts of fairness warrant that respondent have the aid of counsel.”). The court first noted that, “[w]hile guardianship does not have the legal finality of adoption, nevertheless the granting of guardianship of the person of an infant to a non-parent over the objection of a parent will de facto extinguish the basic parental right of rearing one’s own child.” Because the parent-child relationship is constitutionally protected, the court held that the “sanctity of the right” warranted the aid of counsel for the mother. Although the court did not clarify which constitution it rested its decision upon, its citation to both Ella B. and Lassiter may make it a holding on both constitutions.
