Trial court abused its discretion in failing to appoint counsel for parent

In In re D.L.D., a Louisiana Court of Appeals held that a trial court had abused its discretion by failing to determine if a birth parent in an adoption proceeding was entitled to appointed counsel. 310 So.3d 314 (La. Ct. App. 2021). 

As background, Louisiana used to provide a right to counsel to birth parents in adoption matters but replaced it with a discretionary appointment system (see La. Child. Code Ann. art. 1244.1(C)) that requires the court to determine whether due process requires appointed counsel if the parent files a written opposition to the adoption and indicates they they are unable to pay for counsel.  In in response to the adoption, the father in D.L.D. did not state that he could not afford an attorney nor that he was requesting one, but he did mention his indigence at the hearing. 

The appeals court noted that the form notifying the father of his right to request counsel was “long and complicated and the information about requesting the appointment of counsel is located deep in the text.  The notice did not state that a party opposing an adoption must request the appointment of an attorney in his opposition or forfeit any consideration of appointment of counsel by the trial court.” D.L.D., 310 So.3d at 322-23.  The appeals court then noted that the father in question sought in forma pauperis status after the hearing, demonstrating he was indigent.  The appeals court also observed that “In spite of the difficulties experienced by courts across the state as a result of the closures precipitated by the COVID-19 pandemic, this intrafamily adoption proceeded quickly.  The June 2020 hearing on whether ETF’s consent to the adoption was necessary was held only three months after the filing of the original petition, one month after the May hearing where ETF requested counsel, and one month after the petition was amended.” Id. at 323.  The appeals court then remanded the case back to the trial court to determine if due process required appointment of counsel for the father.