Right to counsel

Given that the Adoption Code is within Title 8, the right to counsel in § 8-221(B) should apply to adoption proceedings and provides a right to counsel where the parent or guardian is indigent:

If a parent or guardian is found to be indigent and entitled to counsel, the juvenile court shall appoint an attorney to represent the person or persons unless the person knowingly, intelligently and voluntarily waives counsel.

The appellate court in an unpublished decision interpreted the statute in this manner.  In Frank P. v. Sabrina H., No. 1 CA–JV 13–0133, 2013 WL 5746220 (Ariz. App. Oct. 22, 2013), the court held that in a case involving a petition by a private party for both termination of parental rights and adoption, the trial court appropriately appointed counsel for the petitioners in the termination portion.  The court held, “Nothing in A.R.S. § 8–221(B) limits [the right to counsel] to petitions brought by the Arizona Department of Economic Security.”  

Note, however, that Ariz. Rev. Stat. Ann. § 8-106 mentions only a right to “consult with an attorney” as part of the notice going to the birth parents. 

Additionally, while Ariz. Rev. Stat. Ann. § 8-221(B) would seemingly apply to all adoption-related termination of parental rights proceedings, Arizona courts have found no right to counsel in voluntary relinquishment proceedings, even where the consenting parent is a minor and even though such proceedings effectively terminate parental rights.  See e.g., Kayla P. v. Morgan C., No. 1 CA–JV 09–0190, 2010 WL 987071, at *4-5 (Ariz. Ct. App. March 18, 2010) (not explicitly addressing broad wording of § 8-221(B)).  The Kayla court also added, “We note that a few states have enacted a requirement that minors be advised by counsel before consenting to an adoption, the consent being otherwise invalid … In contrast, Arizona has no such statute.” 2010 WL 987071 at *5 n.3; see also In re Navajo Cty. Juvenile Action No. JA-691, 831 P.2d 368, 371, 373 (Ariz. Ct. App. 1991) (declining to address whether mother had right to appointed counsel before consenting to adoption, where she voluntarily placed her three children for adoption, but later claimed she made this decision under “duress.”).

Note:  Per Az. Sup. Ct. R. Rule 111(c), unpublished decisions are not precedential and may only be cited for the purposes set forth in the rule.