Right to counsel

Generally

Indigent parents have a right to counsel in dependency proceedings upon request.  Specifically, Ark. Code Ann. § 9-27-316(h) states:

(1)(A) All parents and custodians have a right to counsel in all dependency-neglect proceedings.

(B)  In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian.

(C)

(i) Parents and custodians shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to counsel and the right to appointed counsel, if eligible.

(ii) As required under § 9-27-314, a circuit court shall appoint counsel in an ex parte emergency order and shall determine eligibility at the commencement of the probable cause hearing.

(D)  All parents shall have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent.

(E)  In a dependency-neglect proceeding naming a minor parent as a defendant, the court shall appoint a qualified parent counsel for the minor parent.

(2)  If at the permanency planning hearing or at any time the court establishes the goal of adoption and counsel has not yet been appointed for a parent, the court shall appoint counsel to represent the parent as provided by subdivision (h)(1)(D) of this section.

(3)  Putative parents do not have a right to appointed counsel in dependency-neglect proceedings, except for termination of parental rights proceedings, only if the court finds on the record that:

(A)  The putative parent is indigent;

(B)  The putative parent has established significant contacts with the juvenile so that putative rights attach;

(C)  Due process requires appointment of counsel for a full and fair hearing for the putative parent in the termination hearing; and

(D)  The putative parent requested counsel.

(4)(A)(i) A putative parent has the burden to prove significant contacts with the child so that putative rights attach.

(ii)  The putative parent shall request appointed counsel for a termination of parental rights hearing if the goal of the case changes to adoption with a termination of parental rights petition to be filed.

(B)  The court shall make the findings required in subdivision (h)(3) of this section to determine whether a putative parent is entitled to appointed counsel at the termination hearing.

(C)

(i)   If the court determines that the putative parent is entitled to appointed counsel under subdivision (h)(3) of this section, the termination petition shall include the putative parent.

(ii)  The court shall appoint counsel subject to subdivision (h)(3) of this section for the putative parent at any time the court establishes adoption as the case goal with a termination of parental rights petition to be filed.

(D)  If the putative parent, after notice by the department, has not made an attempt to establish significant contacts with his or her child or the court determines that the putative parent has not established significant contacts, only legal parents shall be included in the termination petition and no further notice is required of the putative parent.

(5)

(A)  The court shall order financially able parents or custodians to pay all or part of reasonable attorney’s fees and expenses for court-appointed representation after review by the court of an affidavit of financial means completed and verified by the parent or custodian and a determination by the court of an ability to pay.

(B)

(i)  All moneys collected by the clerk under this subsection shall be retained by the clerk and deposited into a special fund to be known as the “Juvenile Court Representation Fund”.

(ii)  The court may direct that money from the fund be used in providing counsel for indigent parents or custodians at the trial level in dependency-neglect proceedings.

(iii)  Upon a determination of indigency and a finding by the court that the fund does not have sufficient funds to pay reasonable attorney’s fees and expenses incurred at the trial court level and state funds have been exhausted, the court may order the county to pay these reasonable fees and expenses until the state provides funding for counsel.

(6)

(A)  Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client.

(B)  When the first appearance before the court is an emergency hearing to remove custody under § 9-27-315, parents shall be notified of the right to appointed counsel if indigent in the emergency ex parte order.

The right to counsel arguably extends to appeals.  Previously, the statutory language specified that the right to counsel extended to “all stages”, and such language was relied upon by the court in Linker-Flores v. Ark. Dep’t of Human Services to conclude that the right to counsel applies in appeals. 194 S.W.3d 739, 745–46 (Ark. 2004).  Although the “all stages” language was later removed as to parents (but was retained as to children), it appears that parents still enjoy the right to counsel on appeal, since the court rule governing dependency matters appeals contains instructions for attorneys seeking to file no-merits briefs, which would not be necessary if the parents did not hav a right. See Ark. R. Sup. Ct. Rule 6-9(j)(1) (“After studying the record and researching the law, if appellant’s counsel determines that the appellant has no meritorious basis for apeal, then counsel may file a no-merit brief and move to withdraw.”).

Harmless error standard is applied on appeal.

When considering the denial of counsel on appeal for abuse/neglect matters, Arkansas courts tend to apply the harmless error standard.  In Buck v. Arkansas Department of Human Services, 548 S.W.3d 231 (2018), the Court of Appeals held that the trial court’s failure to appoint counsel for a father in a dependency proceeding was not harmless error notwithstanding the fact that the father was appointed counsel for the termination proceeding.  The court noted that the trial judge made a dependency-neglect finding based primarily on stipulations by the mother, and the father also did not have the benefit of counsel to monitor implementation plans.  But more generally, the court spoke about the many things an attorney does in general to assist parents in dependency matters. See also Clark v. Ark. Dep’t of Human Servs., 206 S.W.3d 899 (Ark. Ct. App. 2005) (in evaluating the petitioner’s argument that he should have been provided counsel in a dependency-neglect proceeding at the adjudication stage pursuant to Ark. Code Ann. § 9-27-316, where he was adjudicated a child-abuser and restrained from entering the home in which his children lived, the court first inexplicably began examining due process caselaw, discussing the balancing tests articulated in Lassiter and Mathews v. Eldridge, and noted that it is a case-by-case analysis under federal law.  But the court then rested its decision solely on statutory interpretation in reasoning, “Because the children have been effectively taken away from him although they remained in the home, appellant has a right to counsel under Ark. Code Ann. § 9-27-316(h).”  The court held that the failure to appoint counsel in this case was not harmless because “counsel could have cross-examined the witnesses. The dependency-neglect adjudication is the first step to termination of parental rights. The DHS safety plan bars appellant from the house where his children live. The consequence of the adjudication is that appellant is now a registered child abuser.”).

In Jefferson v. Arkansas Department of Human Services, 158 S.W.3d 129, 136 (Ark. 2005), the court noted appellant’s alleged waiver of counsel at a dependency-neglect hearing (without examining the legitimacy of that waiver) but observed that her appeal of the dependency adjudication was not timely, and therefore the court could not fully address any errors (including the alleged denial of counsel).  However, it stated that it would determine “whether the failure to provide counsel to appellant during the adjudication proceeding permeated or tainted the remainder of appellant’s case so as to deprive appellant of fundamental fairness in subsequent proceedings.”  It then concluded that the lack of counsel did not rise to this level because the appellant had been appointed counsel for the remainder of the proceedings after the adjudication phase.  However, it went on to state:

Although the issue raised by appellant is procedurally barred, we note that it implicates important safeguards imposed with respect to a termination of parental-rights proceeding.  For that reason, and out of an abundance of caution, we have decided to give no consideration to the testimony given by appellant at the adjudication hearing because such testimony was given without legal representation or a proper waiver thereof.

Id. at 658.