Right to counsel

Generally

Before the decision of the U.S. Supreme Court in Lassiter v. Dep’t of Social Services, 101 S.Ct. 2153 (1981) (finding no Fourteenth Amendment categorical right to counsel in termination of parental rights proceedings), the Oklahoma Supreme Court considered a case where a mother was not appointed counsel in a termination of parental rights case, notwithstanding a statute requiring that counsel be appointed in such cases. In re Chad S., 580 P.2d 983, 984-985 (Okla. 1978).

The court commented that “[n]o decision of this court has previously required the trial court, as a matter of constitutional due process, to advise parents in a termination order of their right to court-appointed counsel if they are shown to be indigent.”  However, it then went on to broadly state that “[t]he fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings. This includes the right to counsel.” The court relied on a series of U.S. Supreme Court rulings for its decision.

Post-Lassiter: Right to counsel affirmed, including the right to effective assistance

The high court subsequently revisited the right to counsel in termination proceedings in a post-Lassiter case and found there is a right to counsel in such proceedings, including the right to effective counsel. In re D.D.F. 801 P.2d 703, 706 (Okla. 1990).  Interestingly, the court rejected Lassiter in favor of its prior determination in In re Chad S., stating, “[a]lthough the federal constitution does not require that counsel be appointed in all termination proceedings, we believe that the rights at issue are those which are fundamental to the family unit and are protected by the due process clause of the Oklahoma Constitution, Art. 2, § 7.” More recently, Oklahoma courts have found an abuse of discretion where a trial court refused to provide a continuance resulting in a mother being represented by a wholly unprepared counsel at hearing to terminate her parental rights. In re S.S., 90 P.3d 571 (Okla. Civ. App. 2004).

Right to counsel extends to appeals

Finally, at least one appellate court has found that the right to counsel extends to appeals. See Matter of D.D.F., 784 P.2d 89 (Okla. Ct. App. 1989).  The D.D.F. court based its reasoning on both statutory construction and on Chad S. Although the Oklahoma Supreme Court found the issue to be moot by the time D.D.F. reached the high court (because the litigant had been appointed appellate counsel), the high court in a later decision stated that it found the reasoning in D.D.F. persuasive as to why the right to counsel must apply to the appellate stage. Matter of S.T.G., 806 P.2d 636, 640 (Okla. 1991).

In re Chad S. might reach guardianship matters in child welfare context

The court’s holding in In re Chad S. might reach guardianships conducted within the context of a child welfare proceeding as well. In upholding a mother’s right to notice of a state-initiated guardianship proceeding, the Civil Court of Appeals stated that parents in guardianship proceedings are entitled to the full panoply of procedural safeguards. In re Guardianship of R.T., 278 P.3d 1063, 1066 (Okla. Civ. App. 2012). The court compared guardianships to adoptions and terminations of parental rights. Although the court noted that the Oklahoma Legislature statutorily imposes different requirements on each, it held that the mother appealing the imposition of a guardianship had a constitutional right to the “full panoply of procedural safeguards” because

these three types of proceedings are similar in that they result in a parent being deprived of the right of the care, custody, companionship, and management of his or her child. This right is a fundamental right protected by the federal and state constitutions. “The fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied” before a parent may be deprived of that right.

Id. (internal citations omitted). This panoply of procedural safeguards includes the right to counsel. Matter of Chad S., 580 P.2d 983 (Okla. 1078) (cited in In re Guardianship of R.T.).