Hawaii Supreme Court says parents have right to counsel in abuse/TPR cases
In In re T.M., the Hawaii Supreme Court ruled that all parents have a right to counsel in abuse/neglect and termination of parental rights proceedings under the due process clause of the Hawaii Constitution:
[P]arents have a substantive liberty interest in the care, custody, and control of their children that is protected by the due process clause of article I, section 5 of the Hawai‘i Constitution. In re Doe, 99 Hawai‘i 522, 533, 57 P.3d 447, 458 (2002). Therefore, we additionally hold that parents have a constitutional right to counsel under article I, section 5 in parental termination proceedings and that from and after the filing date of this opinion, courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.
319 P.3d 338, 339 (Haw. 2014). Despite the Court’s reference to a right to counsel in “termination proceedings”, the second part of the quote makes it clear that the right to counsel attaches during the abuse/neglect phase.
In T.M., the trial court had refused to appoint counsel for a minor parent, and the Court of Appeals had affirmed, holding that the assistance of a GAL had been sufficient and/or that any error in refusing counsel had been harmless. The T.M. Court found that the Court of Appeals had erred in its assessment of harm and that it had been an abuse of discretion under Haw. Rev. Stat. § 587A-17(a) to refuse to appoint counsel for the mother in the case. However, it went on to say, “The foregoing review of the instant case reveals the inadequacy of an approach that allows the appointment of counsel to be determined on a case-by-case basis once DHS moves to assert foster custody over a child … Mandating the appointment of counsel for indigent parents once DHS moves for custody would remove the vagaries of a case-by-case approach.” Id. Highlighting the importance of the parental interest at stake, the practical difficulties of trial judges attempting to assess at an early stage whether counsel is needed, the decisions from other states, the effect that an incorrect decision on counsel would have on a child’s permanency (since it would require starting the child welfare proceeding over), and various bits from Justice Blackmun’s dissent in Lassiter, the Court concluded:
This court has held that “[t]he right to counsel is an essential component of a fair trial” in the criminal context. State v. Tarumoto, 62 Haw. 298, 299, 614 P.2d 397, 398 (1980). The same considerations suggest that an attorney is necessary for a “fair procedure” in parental termination proceedings.
Id.[1] The Court also highlighted the need for counsel early in the process, given that “before the termination hearing itself, issues that may be decisive in that proceeding may have been determined subsequent to DHS attaining custody of the child.” Id.[2]
Prior to the T.M. decision, appointment of counsel was on a case-by-case basis as per statute.[3] Although the appellant-mother’s petition to the Court argued that the trial court abused its discretion in not appointing counsel for the mother in question, the amicus brief drafted by the NCCRC and filed by the Legal Aid Society of Hawaii, Hawaii ACLU Foundation, and Hawaii Appleseed Center for Law and Economic Justice urged the Court to take up the right to counsel for all parents. In its opinion, the Court relied on the amicus brief’s reasoning to find the right to counsel. T.M., 319 P.3d at 352 n.21.
However, the T.M. Court left some ambiguity about the timing of the appointment — whether the right attaches prior to the filing of a petition for temporary custody or only after such a petition is granted. Early in the opinion, the Court states, “courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.” Later in the opinion, the Court seems to conflict itself by saying, “upon the filing date of this opinion, trial courts must appoint counsel for indigent parents upon the granting of a petition to DHS for temporary foster custody of their children.”
But in 2021, the Hawaii Supreme Court clarified this ambiguity in In re L.I., 482 P.3d 1079 (Haw. 2021) as well as established a reversible error standard where there was a failure to appoint counsel. For more about L.I., see Supreme Court of Hawaii ruling strengthens parents’ right to counsel in child welfare cases.
To learn more about the T.M. case, including media coverage of the decision, visit our bibliography.
[1] The T.M. Court’s ruling followed earlier opinions that had criticized the Lassiter approach but not reached the state constitutional issue, such as In re “A” Children, 193 P.3d 1228 (Haw. Ct. App. 2008).
[2] In In Re Doe, 72 P.3d 546 (Haw. Ct. App. 2003) (unpublished), the court held holding that a refusal to appoint a father counsel in a dependency case did not constitute a denial of due process where he had custody of his son during the time he lacked counsel and “nothing in the record suggests that the proceedings were at the point that appointment of counsel for Father was necessary to adequately protect his interests.” It is unclear what effect that T.M. would have on this case, given the factual distinction that the father in Doe retained custody of his child.
[3] See Haw. Rev. Stat. § 587A-17(a); see also Cleaver v. Wilcox, 499 F.2d 940, 941–42 (9th Cir. 1974) (declining to impose an “inflexible constitutional rule” requiring the appointment of counsel for parents in every dependency proceeding).
NCCRC recruited the amici, co-drafted the amicus brief, and worked with petitioner on oral argument for T.M..
