Dissent – WV should join majority of states in recognizing effective assistance in TPR

A dissenting Justice of the Supreme Court of Appeals of West Virginia urged the Court to finally recognize that parents have the right to effective assistance of counsel in termination of parental rights (TPR) cases. See In re R.H., No. 23-483, 2024 WL 3721411, at *3-4 (W. Va. Aug. 7, 2024) (Hutchinson, J., dissenting). The opinion also urged practitioners to continue to raise effectiveness of counsel claims on parents’ behalf. Id.

In a 2024 unpublished decision, the state’s highest court again declined to find that parents have the right to effective counsel. See In re R.H., 2024 WL 3721411, at *2 n.4. In a footnote, the Court stated that it was refusing to consider the mother’s alternative assignment of error (i.e., that her counsel provided ineffective assistance at the below proceeding). Id. It simply repeated an oft-cited refrain, stating that “the Court has never recognized a claim for ineffective assistance of counsel in the context of abuse and neglect matters, and declines to do so here.” Id. [quoting In re C.R., No. 22-0189, 2022 WL 3961921, at *6 (W. Va. Aug. 31, 2022)].

However, Justice Hutchison authored a dissenting opinion, expressing that he would have heard oral argument on the issue. The dissent emphasized the fundamental nature of the right to parent and noted that the right to counsel for parents is based in the Due Process clauses of both the West Virginia and United States Constitutions. R.H., 2024 WL 3721411, at *4 (Hutchinson, J., dissenting) [citing State ex rel. Lemaster v. Oakley, 203 S.E.2d 140 (W. Va. 1974) and Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981)]. The opinion urged the Court to join the majority of state courts in recognizing the right to effective assistance and called upon advocates to continue raising the issue:

My brief review of the law indicates that a majority of state courts have gone one step further and found not only a right to counsel in parental termination proceedings, but also the right to the effective assistance of counsel. Without the concomitant right to effective and competent assistance, the right to counsel is illusory. …

…

Having reviewed the parties’ briefs and the questions regarding the effectiveness of the petitioner’s counsel, I believe a formal opinion by this Court was warranted—not a memorandum decision. I further believe that practitioners in the field of abuse and neglect law should, in the future, persist in raising questions regarding the effectiveness of counsel in termination proceedings. In some fashion, this Court should recognize that the right to counsel is illusory when the result of an abuse and neglect proceeding is altered by objectively unprofessional representation. Accordingly, I respectfully dissent.

In re R.H., 2024 WL 3721411, at *3-4 (Hutchinson, J., dissenting) (internal citations omitted).