Wyo. Supreme Court upholds parents’ right to counsel

In Ech v. State, 2018 Wyo. LEXIS 87 (Wyo. 2018), a father who was not the subject of allegations had requested appointed counsel at the initiation of an abuse/neglect proceeding, but the court did not appoint him counsel until the permanency goals were changed to adoption.  The Supreme Court of Wyoming held that a parent is statutorily entitled to counsel for the abuse/neglect proceedings regardless of whether he or she is actually the subject of allegations, relying on the statute’s use of the word “parent” and noting that other statutes expressly limit rights to parties against whom petitions have been filed.  The court also rejected the State’s argument that the use of the term “non-custodial parent” in Wyo. Stat. § 14-3-413 indicated a desire on the part of the Legislature to create a distinction, holding that

Wyo. Stat. Ann. § 14-3-422(a) unambiguously requires the juvenile court to advise the child’s parents, whether accused or not, of their right to counsel at multiple stages of the proceedings. Father was not advised of this right at his first appearance before the juvenile court and, thus, the court transgressed a clear and unequivocal rule of law.  In addition, Wyo. Stat. Ann. § 14-3- 422(b) clearly and unequivocally grants Father, the child’s parent, a statutory right to the appointment of counsel upon request.

The court also rejected the State’s argument that the father’s failure to provide a statement of his financial condition relieved the trial court of any obligation to appoint counsel, holding that “Wyo. Stat. Ann. § 14-3-422(b) does not require that a request  for counsel be contemporaneously accompanied by a financial statement, but instead places the burden on the court to require it.”  

Because the father’s appointed attorney had not raised the earlier failure to appoint counsel at trial, the Supreme Court of Wyoming reviewed the error under the plain error standard.  It first concluded that the father was denied a substantial right, rejecting the State’s position that the father’s rights would not be impaired until a later termination of parental rights proceeding, because “The State’s argument overlooks our recognition that a parent’s substantial rights are affected when the permanency plan is changed from reunification to termination, and adoption and reunification efforts are halted.”  However, the court found that the placement of the child would not have differed if the father had been provided counsel, finding the father’s arguments that the grandmother would have pursued custody more aggressively or that the State would have provided better reunification services unpersuasive.