Right to counsel

South Dakota grants “the child’s parents, guardian, or other custodian” a statutory right to court-appointed counsel upon request in cases involving the termination of parental rights. S.D. Codified Laws § 26-7A-31 (specifying that parent must request counsel). [1]

In addition, § 26-7A-31 confers on South Dakota courts the discretion to appoint an attorney for the child or any party without request if legal representation appears necessary to protect the interests of the child (note: the term “party” may be specifically defined, and may or may not include parents). The county in which the proceeding occurs must pay for the expense of counsel in such cases, according to the manner prescribed by the court.

Notably, S.D. Codified Laws § 26-7A-30 requires the court to notify parents of their “constitutional and statutory rights, including the right to be represented by an attorney.”

Substitute Counsel

In People v. S.D. Dep’t of Soc. Servs., 691 N.W.2d 586, 588 (S.D. 2004), involving a proceeding to terminate parental rights, the trial court failed to appoint substitute counsel to represent a mother who had dismissed two state-appointed lawyers. The parent was without counsel at the adjudicatory phase, although she was appointed counsel for the dispositional phase.  The court held that the trial court had committed clear error in failing to address the lack of counsel, either by refusing to let the original trial counsel withdraw or by finding new counsel.  In light of the child’s interests, the court in S.D. Dep’t of Soc. Servs. ruled that the lower court had abused its discretion by failing to appoint substitute counsel.  S.D. Dep’t of Soc. Servs., 691 N.W.2d at 591.  However, the court found the error harmless because it believed the facts were such that appointed counsel could not have changed the result.

The Supreme Court has also held in several cases that lower courts have discretion to determine whether to appoint substitute counsel for a litigant who is statutorily or constitutionally entitled to counsel but who has dismissed his or her state-appointed counsel. See State v. Iron Necklace, 430 N.W.2d 66 (S.D. 1988) (case involving a criminal defendant’s constitutional right to counsel; Supreme Court held that the trial court had not abused its discretion in refusing to appoint substitute counsel when such appointment would have enabled the original defense lawyer to testify for the defendant and reasoned that “[a]ppointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process.” 430 N.W.2d at 79.

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[1] In People in Interest of B.A.R, 344 N.W.2d 90 (S.D. 1984), the trial court appointed a new attorney on its own initiative after the defendant’s original trial counsel withdrew, but not until part of the dispositional hearing had occurred.  Because the right to counsel in termination of parental rights proceedings is based on a statute, not the Constitution, the appellate court held that the trial court was not under any obligation, absent a request by the parent, to appoint counsel, and therefore, the absence of counsel was not grounds for reversal.