Right to counsel

The New York Court of Appeals held that indigent parents have a due process and equal protection right to counsel in abuse and termination of parental rights cases. In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972).  In Ella B., the high court held that under the Due Process Clause (it did not indicate whether it was addressing the state or federal constitution, or both), an indigent person is entitled to appointed counsel in neglect proceedings where that person faces a loss of child custody.  The Ella B court found that “an indigent parent, faced with the loss of a child’s society, as well as the possibility of criminal charges, is entitled to the assistance of counsel.”  In reaching this conclusion, the court reasoned simply that under due process analysis, “[a] parent’s concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer.”

The Ella B. court also addressed the Equal Protection Clause briefly, saying that in addition to a violation of due process, the denial of counsel to an indigent parent facing the loss of custody of a child is “in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws as well.” 285 N.E.2d at 290.  The court added that “Once the conclusion is reached that one has a right to be represented by assigned counsel … it follows that one is entitled to be so advised.  If the rule were otherwise, if the party before the court was not apprised of his right to assigned counsel, there could be no assurance either that he knew he had such a right or that he had waived it.”

Although Ella B. was decided before Lassiter, courts since Lassiter have relied upon Ella B. (and its progeny) to hold there is a right to counsel for parents in termination cases and have not mentioned Lassiter. See, e.g., In re Evan F., 815 N.Y.S.2d 697, 699 (App. Div. 2006); People v. Smith, 465 N.E.2d 336, 339 (N.Y. 1984) (holding that “due process and equal protection require the assistance of counsel when rights and interests as fundamental as those involved in the parent-child relationship are at stake”, and citing Ella B.).

In re St. Luke’s-Roosevelt Hosp. Ctr., the court listed Ella B among the cases extending a right to counsel in certain types of civil cases, but when it then noted how some of these cases rested on the state constitution, it did not include Ella B in that second list. 607 N.Y.S.2d 574, 577 (Sup. Ct. 1993), aff’d, 89 N.Y.2d 889 (N.Y. 1996).  However, later in the opinion, the St. Luke’s court commented, “In Lassiter, supra, the Supreme Court held that counsel was not inevitably required even in termination proceedings. However, our Court of Appeals has held counsel mandated both in termination and neglect proceedings, thus demonstrating a greater commitment to the protection of liberty interests under the state constitution than is necessarily required under the Federal constitution.”