Parent's Right to Counsel Triggered when DHS Files for Family Supervision
In re: L.I. & H.D.K. (HSC March 11, 2021)
Background. The Department of Human Service intervened between Mother and her child after Mother admitted to having a substance abuse problem during an interview with DHS. On June 13, 2014, DHS filed a petition for “Family Supervision.” Mother consented to the plan and agreed to a service plan requiring her to participate in a substance abuse assessment and recommended treatment, receive counseling, be responsible for her child, and cooperate with DHS. At a status hearing, the family court, with the Hon. Judge Keith E. Tanaka presiding, reviewed a DHS report detailing Mother’s inability to “manage her life” and care for her child. The family court revoked supervision and placed Mother’s child in foster care. The family court also ordered another service plan in which Mother agreed to participate in a psychological evaluation, substance abuse assessment and recommended treatment including submitting to random urine analysis, and monthly contact with a social worker. Counsel for Mother was not appointed until April 14, 2015—about ten months after the filing of the first petition and 97 days after DHS filed for temporary custody.
Mother’s second child, H.D.K., was born two months later. The child tested positive for methamphetamine at birth. DHS filed another petition for temporary foster custody over H.D.K. Mother failed to comply with her service plans. DHS filed a motion to terminate Mother’s parental rights. The family court granted the motion. Mother appealed and argued that counsel should have been appointed sooner. The ICA affirmed. Mother petitioned to the HSC.
The Hawai'i Due Process Clause Mandates Right to Counsel for Indigent Parents when DHS Files for Family Supervision. “[P]arents have a constitutional right to counsel under article I, section 5 in parental termination proceedings and . . . courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.” In re TM, 131 Hawai'i 419, 421, 319 P.3d 338, 340 (2014). When DHS files for custody, parental 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.” Id. at 435, 319 P.3d at 354. However, the HSC in In re TM also states that counsel must be appointed “upon the granting of a petition” for temporary custody.” Id. at 436, 319 P.3d at 355.
Here, there was a 97-day delay between the appointment of counsel and the DHS’s petition for temporary foster custody over L.I. The HSC took this case to clarify one of the ambiguities in In re: TM. The HSC explained that counsel must be appointed “when DHS files a petition for family supervision because, at that point, parental rights are substantially affected as foster custody can be ordered by the court at a subsequent hearing.”
Failing to Appoint Counsel upon Filing for Family Supervision is Structural Error. The HSC further held that the failure to appoint counsel for the indigent upon the filing for family supervision is structural error and requires vacating the lower court without examining whether the error is harmless. State v. Loher, 140 Hawai'i 205, 222, 398 P.3d 794, 811 (2017). Parents have a “substantive liberty interest in the care, custody, and control of their children that is protected by the due process clause” in the Hawaii Constitution. In re: TM, 131 Hawai'i at 421, 319 P.3d at 340. That liberty interest guarantees counsel for parents. Id. at 435, 319 P.3d at 354. And so, the HSC vacated the termination of parental rights order and remanded the case to the family court.