Discretionary appointment of counsel

Indigent parents may be appointed counsel in state-initiated abuse and termination of parental rights cases, as per a court rule.  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.

The factors outlined in subsection (b) outline those provided by the U.S. Supreme Court in Lassiter v. Dep’t of Soc. Servs., 101 S.Ct. 2153 (1981) for discretionary appointment of counsel.

In Delaware, termination proceedings are considered to be the final stage of a dependency proceeding and thus are covered by Rule 206. See Brown v. Division of Family Services, 803 A.2d 948 (Del. Super. Ct. 2002) (“The final stage in the dependency and neglect continuum is either a successful reunification of the family or a decision that the best interests of the child or children requires a termination of parental rights … It is now well established that a petition to terminate parental rights is one of the two possible end stages in the three-part continuum that usually begins with a dependency and neglect proceeding.”).

Prior to a 2015 amendment, Rule 206 required appointment of counsel for all indigent parents in abuse and termination cases.  See Hughes v. Div. of Family Servs, 836 A.2d 498 (Del. 2003) (“In 2002, the Family Court Civil Procedure Rules were amended to provide for mandatory appointment of an attorney in the case of an indigent party if so requested by that party . . . Consequently, it should be unnecessary to conduct a harmless error analysis in future cases because the Family Court will routinely be appointing counsel to represent an indigent parent in a dependency and neglect proceeding.”).  However, as of 2024, appointment of counsel is now mandatory under Del. Code tit. 13, § 2504(g). See 10/25/2024, Legislation, Abuse/Neglect/Dependency – Accused Parents, Termination of Parental Rights (State) – Birth Parents, Delaware finally enacts right to counsel for parents.