New Mexico court: failure to advise parent of right to appointed counsel is fundamental error

08/31/2016, Litigation, Termination of Parental Rights (State) - Birth Parents

In In re Darla D, 2016 N.M. App. LEXIS 93 (N.M. App. 2016), the New Mexico Court of Appeals cited to a parent’s statutory right to counsel in a termination of parental rights case and held that “the court's failure to advise Mother that she would be entitled to appointed counsel-paid for by Petitioners-if she could establish indigency violated her rights under the Adoption Act, was in derogation of her due process rights, and constitutes fundamental error.”  The court conceded that the mother was represented by “largely pro bono counsel”, but added that “While pro bono legal representation is both commendable and important to legal proceedings of all sorts in New Mexico, Mother nonetheless was not given an opportunity for appointed counsel that was her right to accept or reject.”  The court quoted from Chris L. v. Vanessa O., 320 P.2d 16 (N. M. App. 2013) for the proposition that “a court must advise a parent in termination proceedings under the adoption provisions of the Children's Code that he or she is entitled to have counsel appointed if indigency can be established.”  The court also observed that “Mother's indigency was pointed out to the court at the first hearing”, making the trial court’s actions even less defensible.