Parents have Constitutional Right to Counsel Against DHS

In re TM (HSC January 6, 2014)
Background. Mother had her child, TM, when she was fifteen years old. About a year later, mother was diagnosed with mental health issues. The Department of Human Services filed two petitions for foster care. One for the mother and the other for TM. At the initial hearing on both petitions, the family court addressed all of the parents and encouraged them to get counsel. If they could not afford counsel, the court would review an application and appoint one if they qualified. The family court then addressed Mother and said it would “find a person that can act” as both a guardian ad litem and a lawyer. Mother’s guardian appeared at subsequent hearings and told the family court that there may be a conflict of interest between what is in Mother’s best interest and what she wants to do about her child. No lawyer was appointed. For nearly two years, no lawyer was appointed. Finally, DHS moved to terminate Mother’s rights to TM.

When Mother turned 18, her case as a child was dismissed. The family court eventually appointed counsel for Mother in anticipation of the termination of parental rights hearing. Soon after the appointment of counsel, Mother tried to continue the hearing. All motions to continue were denied. At the hearing, Mother presented evidence that she was improving her situation and with more time she could have a stable house, job, and motor vehicle. Again, the motion was not continued. The family court granted Mother’s motion to terminate parental rights. Mother appealed. The ICA affirmed; Chief Judge Nakamura dissented. Mother petitioned for certiorari.

An Abuse of Discretion under the Old Standard . . . The family court “may” appoint counsel for indigent parents in proceedings involving child custody. HRS § 587A-34 and 17. The decision on when and whether to appoint counsel was reviewed for an abuse of discretion. In re Doe, 99 Hawaii 522, 57 P.3d 477 (2002). Under this standard, the HSC held that the family court abused its discretion in waiting almost 19 months before appointing counsel. DHS must and will file a motion for the termination of parental rights if a child is in temporary foster care for more than 24 consecutive months. HRS § 587A-33. Still, there was no indication that Mother was aware of this deadline. The record also showed that the family court was well aware of the need for an attorney, but did nothing to appoint one for over nineteen months. The absence of counsel was brought to the family court’s attention during this period, but nothing happened. In sum, the HSC held that the failure to appoint counsel during the first 19 months and with only 5 months before a termination of parental rights hearing was an abuse of discretion.

. . . And a now for the New Standard. According to the HSC, this case “reveals the inadequacy of an approach that allows the appointment of counsel to be determined on a case-by-case basis once DHS moves to assert foster custody over a child.” It is well-established that “parents have a substantial liberty interest in the care, custody, and control of their children protected by the due process clause of article I, section 5 of the Hawaii Constitution.” In re Doe, 99 Hawaii at 533, 57 P.3d at 459. Because of that constitutional dimension, “the state may not deprive a person of his or her liberty interest without providing a fair procedure for the deprivation.” Id.

The HSC noted that inherent in this liberty interest and the need for a “fair procedure” is the right to effective assistance of counsel. In re RGB, 123 Hawaii 1, 17, 229 P.3d 1066, 1082 (2010). The HSC held that counsel is necessary to assist parents whose children have been placed in foster care—even if no termination proceedings were initiated. “[A]s soon as DHS files a petition asserting custody over a child, parents’ rights are ‘substantially affected.’ At that point, an attorney is essential to protect an indigent parent’s liberty interest in the care, custody, and control of his or her children.” Thus, the case-by-case approach was abandoned and “upon the filing date of this opinion [January 6, 2014], trial courts must appoint counsel  for indigent parents upon the granting of a petition to DHS for temporary foster care of their children.”

Editor’s Note. I represented Mother before the ICA and the HSC.


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