Minnesota makes parent counsel mandatory in abuse/neglect cases

A 2021 bill changed the law such that appointment of counsel for parents in abuse/neglect cases is mandatory, not discretionary.  Minn. Stat. § 260C.163, subd. 3(c), which governs the hearing procedures for child protection cases, was modified to state:

In all child protection proceedings where a child risks removal from the care of the child’s parent, guardian, or custodian, including a child in need of protection or services petition, an action pursuing removal of a child from the child’s home, a termination of parental rights petition, or a petition for permanent out-of-home placement, if the parent, guardian, or custodian desires counsel and is eligible for counsel under section 611.17, the court shall appoint counsel to represent each parent, guardian, or custodian prior to the first hearing on the petition and at all stages of the proceedings. Court appointed counsel shall be at county expense as outlined in paragraph (h).

A 2018 case from the court of appeals found that the use of the term “parent” rather than “party” in the statute was deliberate, and thus a nonparty adjudicated father should have been entitled to appointed counsel in the Child in Need of Protection or Services (“CHIPS”) proceeding (he was appointed counsel for the termination proceeding, and the termination ruling was the order he appealed). In re Welfare of the Child of A.M.C., 920 N.W.2d 648, 660 (Minn. App. 2018).  However, the A.M.C. court declined to reverse the termination of the father’s parental rights on the basis of the trial court’s failure to appoint him counsel, since (a) the father did not appeal the denial of appointment at the time nor specify the reasons why he should be appointed counsel (although notably, the statue imposes no such requirement on the litigant); (b) the Court of Appeals could “infer” reasons why the district court might have declined to appoint counsel (like the father’s lengthy incarceration period); and (c) the child’s interest in timely permanency, given the fact that the child had been placed out of home for 3 years.  In other words, the court applied a standard akin to “harmless error.”

Notably, the statute itself specifies that the right to counsel includes the right to effective assistance. See  Minn. Stat. § 260C.163(3)(a) (“The child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court as provided in this subdivision.”).

In addition, the right to counsel extends through appeal. Minn. R. Juv. Prot. Rule 36.01 (“Every party and participant has the right to be represented by counsel in every juvenile protection matter, including through appeal, if any.”); see also Minn. R. Juv. Prot. Rule 36.02, Subd. 2 (“For purposes of appeal, appointment of counsel in a juvenile protection matter shall be made within three days of the request for counsel. When possible, the trial court attorney should be appointed as appellate counsel.”).