Right to attorney ad litem

With respect to custodial guardianships of children, in Walker v. Walker, the Supreme Court of Delaware found that dependency Rules 206 (as to parents) and 207 (as to children) apply even in private termination proceedings and explicitly stated that it was not precluding application of those rules in private dependency matters (the basis for a minor guardianship filing):

Father’s appeal did not raise the issue of right to counsel in a privately initiated dependency and neglect proceeding.  Thus, the fact that our holding does not address that question should not be read as an indication that this Court takes a different view of the right to counsel at that stage.

892 A.2d 1053, 1055 n.5 (Del. 2006). More recent court decisions have interpreted Walker as having provided parents with a right to court-appointed counsel in guardianship matters.  For example, in F.C. v. B.C., the court observed, “Our Supreme Court [] held in Walker  …  that parents have a right to court-appointed counsel in private guardianship cases.” 64 A.3d 867, 876 n.50 (Del. Fam. Ct. 2013); see also Felice Glennon Kerr, Family Court: Protecting the Rights of Indigent Parents, 31-SUM Del. Law. 24 (Summer 2013) (family court interpreted footnote dicta in Walker “as a directive to appoint counsel to indigent parents in all privately initiated guardianship proceedings.”).

Note, however, that the statements about a “right to counsel” rely on versions of Rule 206 and 207 that preceded a 2015 rewrite.  The current version of Rule 207 simply provides that the court may appoint either an attorney ad litem or a CASA for the child, and the court may additionally appoint client-directed counsel.  Accordingly, the right to counsel for children in guardianship matters is classified as categorical but qualified.

For more information about Rule 207, please see Delaware, Right to guardian ad litem, Court Rule or Initiative, Termination of Parental Rights (State) – Children.