Right to attorney ad litem

With respect to adoptions, Chapter 11 of the Delaware Code covers termination of parental rights in the adoption context, and Del. Code tit. 13, § 1104 specifies that a private party may initiate an adoption proceeding (and there need not be a previous termination order issued in order to seek an adoption).  The rest of the chapter outlines the conditions permitting the court to terminate parental rights, and makes no mention about appointment of counsel for such proceedings. 

However, in Walker v. Walker, the Supreme Court of Delaware stated that Rules 206 (as to parents) and 207 (as to children) apply even in private termination proceedings:

The analysis in Watson, and its predecessors, recognized a parent’s compelling interest in maintaining a familial relationship with his or her child. That compelling interest does not diminish where the termination proceedings are initiated by a private party rather than the State. Accordingly, we hold that the trial court must advise parents of their right to seek court-appointed counsel and must determine whether to appoint counsel, if requested, in all termination proceedings.

892 A.2d 1053, 1055 (Del. 2006) (emphasis in original) (applying the harmless error standard to reverse and remand termination of father’s parental rights, concluding that “the outcome might have been different if Father had been represented by counsel”).

The rule applicable to children, Del. Fam. Ct. Civ. R. 207, states:

(a) The Court shall appoint an attorney authorized to practice law in this state or a Court Appointed Special Advocate (“CASA”) to represent the best interests of the child.

(b) The Court may appoint an attorney authorized to practice law in this state to represent the wishes of the child.

(emphasis added).  Although Rule 207 appears to provide either an attorney ad litem[1] or a CASA, there is a conflicting statute that governs, Del. Code tit. 13, § 2504(f).  The statute at one point mirrored Rule 207, but the provision was amended in 2017 to require appointment of an attorney ad litem and permit the additional appointment of a CASA. See Delaware grants right to counsel for children in termination cases, Legislation, Termination of Parental Rights (State) – Children.  It seems that Rule 207 was not updated to reflect the changes to the statute.

In the event of a conflict between a court rule and a statute, the statute controls to the extent that there is a conflict.  Accordingly, the status of the law is that the court is required to appoint an attorney ad litem in every case (under the statute) and has the discretion to appoint a CASA (per both the statute and court rule) or a client-directed attorney (per the court rule).

[1]  Although this code provision does not address the attorney’s role, Del. Code Ann. tit. 29, § 9007A clarifies that the attorney fulfills the role of guardian ad litem.  As to the role of the CASA, Del. Code Ann. tit. 29,§ 9007A(c)(15) adds that the CASA is responsible for determining the child’s wishes and making those wishes known to the court. 

If the attorney ad litem finds that there is a conflict between the child’s wishes and the attorney ad litem’s determination of the child’s best interests, the attorney ad litem must notify the court of the conflict. § 9007A(c)(15).  In the event of a conflict, “the court shall determine how to remedy the conflict such that the child’s best interests and wishes are represented.” Id.