Right to counsel

There is some ambiguity as to the reach of Oklahoma statutes with regards to proceedings involving children. Title 10, which included the procedures for termination of parental rights (TPR) and a provision specifically providing for counsel in TPR proceedings, was repealed in 2009 and replaced with Title 10A. That title states:

If a parent or legal guardian of the child requests an attorney and is found to be indigent, counsel may be appointed by the court at the emergency custody hearing and shall be appointed if a petition has been filed alleging that the child is a deprived child; provided, that the court may appoint counsel without such request, if it deems representation by counsel necessary to protect the interest of the parent, legal guardian, or custodian.…. The court may appoint an attorney or a guardian ad litem for the child when an emergency custody hearing is held; provided, that when a petition is filed alleging the child to be deprived, the court shall appoint a separate attorney for the child, who shall not be a district attorney, regardless of any attempted waiver by the parent, legal guardian or custodian of the child of the right of the child to be represented by counsel.

Okla. Stat. tit. 10A, § 1-4-306 (A)(1)(a) & (A)(2)(a). While there is a clear right to counsel for parents and children in deprived child (i.e., abuse/neglect) proceedings, it is unclear whether this extends to subsequent TPR proceedings. The new TPR statutory provisions (Okla. Stat. tit. 10A, § 1-4-901 et seq.) make no mention of the right to counsel, but it may be that counsel appointed pursuant to the deprived child proceeding continues through the TPR proceedings, especially since § 1-4-306 refers broadly to appointment of counsel for parents. See also J.D.D. v. State (In re J.D.D.), 241 P.3d 691 (Okla. App. 2010) (applying § 1-4-306(A)(2)(c) to termination proceeding); OKLA. STAT. tit. 10A, § 1-2-105(B)(4)(a) (where investigation of parent alleged to have abused/neglected child seeks behavioral health records, court must appoint counsel at records hearing if subject of behavioral records is indigent).

Additionally, the fact that Okla. Stat. tit. 10, § 7505-4.1(D) provides a right to counsel for parents in adoption proceedings, and Okla. Stat. tit. 10, § 7505-2.1(C) provides a right to counsel for putative fathers in pre-adoption termination proceedings, so presumably there is a right in state-initiated TPR cases as well. Also, the Fourteenth Judicial District (covering Tulsa and Pawnee County) promulgated Probate Rule 6, which specifies, “Independent legal counsel or an attorney of the County Indigent Defender’s Office shall be appointed for every child in a contested guardianship, contested or default adoption, or termination of parental rights matter.”