Fed court: counsel must be appointed earlier in child welfare process

A case brought in federal court, Oglala Sioux Tribe v. Van Hunnik, Slip Op, 2015 WL 1466067 (D. S.D. 2015), alleged that a particular judicial district in South Dakota was handling “48-hour removal hearings” (i.e., child welfare hearings held within 48 hours of removal) in a fashion that violated both the Indian Child Welfare Act (ICWA) and federal due process in a slew of ways.  Apropos of the right to counsel, the complaint alleged that “Parents were never advised they could request a brief continuance of the 48–hour hearing to allow the parent to retain counsel … Every time the Seventh Circuit judges agreed during a 48–hour hearing to appoint counsel for indigent parents, the judges delayed the appointment of counsel until after granting DSS custody.”

The head judge of the judicial district justified the court practice by saying that it was “not prejudicial because if counsel is appointed, the Indian parent always retains the right to notice a further hearing at which the attorney may appear with them.” The federal court rejected this argument, citing Lassiter as well as Goldberg v. Kelly and saying the judge’s argument

defies logic because the damage is already done—Indian parents have been deprived of counsel during the course of what should have been an adversarial evidentiary hearing conducted in advance of a court order imposing out-of-home custody for an Indian child … Appointing counsel and continuing the 48–hour hearing for a few hours or even a day to allow court-appointed counsel to confer with the Indian parents and become familiar with the critical documents upon which the 48–hour hearing is based would result in an “equal contest of oppos[ing] interests” … This process undoubtedly will require additional time and more county and judicial resources but these concerns are not adequate reasons to forego rights mandated by ICWA and fundamental due process.

Notably, although the court initially described this as a due process claim, the quote above seems to indicate it found an ICWA violation as well.

A Huffington Post Blog has more about the decision.