Discretionary appointment of counsel

Court Rule 206, which has been found applicable in private guardianship matters, provides that the court may appoint counsel for parents. With respect to custodial guardianships of children, in Walker v. Walker, the Supreme Court of Delaware found that dependency Rules 206 (as to parents) and 207 (as to children) apply even in private termination proceedings and explicitly stated that it was not precluding application of those rules in private dependency matters either:

Father’s appeal did not raise the issue of right to counsel in a privately initiated dependency and neglect proceeding.  Thus, the fact that our holding does not address that question should not be read as an indication that this Court takes a different view of the right to counsel at that stage.

892 A.2d 1053, 1055 n.5 (Del. 2006). More recent court decisions have interpreted Walker as having provided parents with a right to court-appointed counsel in guardianship matters.  For example, in F.C. v. B.C., the court observed, “Our Supreme Court [] held in Walker  …  that parents have a right to court-appointed counsel in private guardianship cases.” 64 A.3d 867, 876 n.50 (Del. Fam. Ct. 2013); see also Felice Glennon Kerr, Family Court: Protecting the Rights of Indigent Parents, 31-SUM Del. Law. 24 (Summer 2013) (family court interpreted footnote dicta in Walker“as a directive to appoint counsel to indigent parents in all privately initiated guardianship proceedings.”).

Note, however, that the statements about a “right to counsel” rely on versions of Rule 206 and 207 that preceded a 2015 rewrite.  The current version of Rule 206 simply provides for discretionary appointment. Del. Fam. Ct. Civ. R. 206 states:

(a) A parent, determined by the Court to be indigent, may have counsel appointed by the Court during the parent’s initial appearance on a petition, or at such other time as deemed appropriate by the Court.

(b) In considering the appointment of counsel, the Court shall consider: the degree to which the loss of parental rights are at stake; the risk of an erroneous deprivation of those rights through the dependency proceedings; and the interest of DSCYF as to the ultimate resolution.

(c) In the event a parent is entitled to appointment of counsel and declines court appointed counsel, such waiver shall be noted on the record or in the Court’s Order.

Accordingly, the right to counsel for parents in guardianship matters is classified as “discretionary.”