Discretionary appointment of counsel

The Delaware Supreme Court has suggested that due process requires a case-by-case determination for appointment of counsel in guardianship cases. In Walker v. Walker, the Delaware Supreme Court stated that its reasoning from Watson v. Div. of Family Services, 813 A. 2d 1101, 1108 (Del. 2002) and Hughes v. Div. of Family Services, 836 A.2d 498, 509 (Del. 2003), which held that the constitutional right to counsel in state-initiated termination and dependency cases is on a case-by-case basis, may apply in private guardianship matters. 892 A.2d 1053, 1055 (Del. 2006).  The Walker court observed:

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.  

Walker, 892 A.2d at 1055 n.5; see also F.C. v. B.C., 64 A.3d 867 (Del. Fam. Ct. 2013) (“Our Supreme Court [] held in Walker  …  that parents have a right to court-appointed counsel in private guardianship cases.”); 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: A court rule, which has been found applicable in private guardianship matters, also provides for discretionary appointment. To learn more about the court rule and its amendment history, visit Delaware, Court Rule or Initiative, Guardianship/Conservatorship of Children – Parent, Discretionary appointment of counsel.