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for termination of parental rights (TPR) and a provision specifically providing for counsel in TPR proceedings, was repealed in 2009 and replaced with Title 10A.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:

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) (emphasis added). While there is a clear right to counsel for 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. This is buttressed by J.D.D. v. State (In re J.D.D.), 241 P.3d 691 (Okla. App. 2010), which applied § 1-4-306 to a termination of parental rights proceeding.

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.”

Notably, in In re T.M.H., while the statute existing at the time required counsel to be appointed for children in termination cases only upon a finding that such appointment was necessary to protect the interests of the child, the court held:

We are convinced that in all termination proceedings there are potential conflicts between the interests of the children and those of both the state and the parents as contemplated by ss 1109 and 24 which are general statutes not necessarily covering only termination. Thus we hold under the above quoted statutes, independent counsel must be appointed to represent the children if termination of parental rights is sought.

613 P.2d 468, 470-71 (Okla.1980); see also In re  S.A.W., 856 P.2d 286, 289 (Okla. 1993) (extending T.M.H. to private parental termination actions where counsel for child could have presented evidence regarding child’s desire to maintain parental ties). It is unclear whether the current statute reflects this requirement, as it is unclear whether it reaches termination of parental rights proceedings and equally unclear whether T.M.H. still applies, given changes to the statute.