Right to attorney ad litem

The right to counsel for children in termination proceedings in Delaware is listed as categorical but qualified, since the law provides children with the right to an attorney ad litem as opposed to client-directed counsel.  The law also permits appointment of a CASA and/or a client-directed attorney.  A relevant court rule and statute are read together to reach this conclusion.

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).[1]  Although Rule 207 appears to provide either an attorney ad litem[2] or a CASA, there is a conflicting statute that governs, Del. Code tit. 13, § 2504(f).  Del. Code tit. 13, § 2504(f) 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.  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]  Rule 207 falls under a chapter entitled “Child Dependency, Neglect and Abuse Proceedings” (with no mention in the title of termination of parental rights), and Rule 200 states that the scope of the rules is “procedures of the Family Court regarding dependency, neglect and abuse petitions for custody, and petitions for guardianship.”  However, case law suggests that TPR matters are considered to be the final stage of the “dependency and neglect continuum” such that the court rules apply in TPR matters as well. See Brown v. Division of Family Services, 803 A.2d 948 (Del. Super. Ct. 2002) (“The final stage in the dependency and neglect continuum is either a successful reunification of the family or a decision that the best interests of the child or children requires a termination of parental rights … It is now well established that a petition to terminate parental rights is one of the two possible end stages in the three-part continuum that usually begins with a dependency and neglect proceeding.”).

[2]  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.