Right to GAL who is likely an attorney

Mandatory appointment for certain minor parents and incompetent or incapacitated parentes

In adoption matters, a minor parent is entitled to be appointed a guardian ad litem before providing express consent or relinquishment of their parental rights under Ala. Code § 26-10E-8(a). See also L.T. v. W.T., 159 So.3d 1289 (Ala. Civ. App. 2014) (finding minor biological mother’s consent invalid because no GAL was appointed as required by the statute).  Note, however, that a minor parent is not entitled to notice nor to a GAL if the court finds by clear and convincing evidence that the minor parent provided implied consent under § 26-10E-9.  Ala. Code § 26-10E-8(b).

As to incompetent or incapacitated parents, although such parents need not provide consent to an adoption, the court must appoint a guardian ad litem for them. Ala. Code § 26-10E-10 (“The court must appoint independent counsel or a guardian ad litem for an incompetent or incapacitated parent for whom there has been no such prior appointment.”).

And though the adoption code fails to provide a definition for “guardian ad litem”, certain court rules, such as Rule 17 of the Alabama Rules of Civil Procedure, may provide further guidance as to whether a GAL must be an attorney. Ala. R. Civ. P. 17(d), which governs how to choose a GAL in situations where the court must appoint one for "a minor defendant" or "for an incompetent person” “not otherwise represented in an action" [under to Ala. R. Civ. P. 17(c)] states:  “Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint to serve in that capacity some person who is qualified to represent the minor or incompetent person in the capacity of an attorney or solicitor.”) (emphasis added); see also Ala. Code § 26-10E-36 ("Except as expressly provided within this chapter, the Alabama Rules of Civil Procedure ... apply in any case brought under [the Adoption Code] chapter, including cases transferred to a juvenile court.").

Discretionary appointment for indigent petitioners in TPR cases

Finally, indigent petitioners in termination of parental rights (TPR) cases may be appointed counsel upon request under Ala. Code § 12-15-305(a).  Effective January 1, 2009, Ala. Code § 12-15-63(b) was replaced by § 12-15-305 of the revised Juvenile Justice Code. See Act No. 2008-277, Ala. Acts 2008.  The amendment made a number of important changes, including expanding the right to counsel for indigent parent respondents to include TPR matters as opposed to dependency proceedings only, removing the request requirement, and making explicit the court’s obligation to notify respondents of their right to counsel.  Subsection (a) of the new provision also seemingly expanded the scope by granting the juvenile court discretion to appoint counsel upon request for indigent petitioners in TPR cases.  Ala. Code. § 12-15-305(a).   The “upon request” language in subsection (a) contrasts with the mandatory “shall be informed” language of subsection (b) of the new provision; whereas respondent parents must be advised of their right to appointed counsel, petitioners need not be so advised and must request counsel.  

While it is somewhat unclear whether this discretionary power applies to dependency cases, TPR proceedings, or both, the likelihood is that it only applies to TPR proceedings.  The header of the section is, in part, “Right to counsel for petitioners … in dependency proceedings,” suggesting the discretionary power only applies to dependency proceedings.  And subsection (a) does not clarify what types of proceedings it reaches, as opposed to subsection (b), which specifically refers to both dependency and TPR proceedings.  However, the rest of the code does not appear to allow private parties to initiate dependency proceedings, whereas Ala. Code § 12-15-317 specifically allows a private party to initiate a TPR.