ICWA, right to counsel apply to private guardianships, says Nebraska high court
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
02/10/2020, Litigation, Abuse/Neglect/Dependency - Accused Parents
In In re Eliza W., 304 Neb. 995 (2020), the Supreme Court of Nebraska held that the provisions of the Indian Child Welfare Act apply to private child guardianship disputes (and not just removals by the state), relying on the definition of "foster care disputes" in 25 U.S.C. § 1903(1)(i) as including "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated."
The court then suggested that ICWA would entitle an indigent parent to appointed counsel, since 25 U.S.C. § 1912(b) provides that "[i]n any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding." However, because the court ruled that the materal grandmother in the case had failed to meet her burden of proof regarding the need for the guardianship, the court ultimately did not have to address the denial of counsel.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: yes