Right to counsel

Litigation, Abuse/Neglect/Dependency - Accused Parents

In Morgan v. Lauderdale County Department of Pensions & Security, a case involving the right to counsel for parents at dependency and temporary custody proceedings, the court devoted just one sentence to the right to counsel, relying entirely on Lassiter to summarily hold that the “constitutional due process clause” (it did not specify which) does not entitle parents to counsel in such proceedings. 494 So. 2d 649, 651 (Ala. Civ. App. 1986) (emphasis added).  Other cases have dismissed right-to-counsel claims without even mentioning the possibility of due process.  See e.g.Leftwich v. Vansandt, 995 So. 2d 172 (Ala. Civ. App. 2008) (respondent in protection order proceeding argued for constitutional right to counsel; court holds that “[a]lthough a party to a civil action has a constitutional right to appear though [sic] privately retained counsel, there is no constitutional right to appointed counsel in a civil proceeding.”); see also W.C. v. State Dep’t of Human Res., 887 So. 2d 251, 256–57 (Ala. Civ. App. 2003) (citing Morgan v. Lauderdale Cty., 494 So.2d 649 [Ala. Civ. App. 1986] for absence of a due process right to appointed counsel in dependency and temporary custody proceedings).

 

However, in Roe v. Conn, 417 F. Supp. 769, 780 (M. D. Ala. 1976), a federal court found that children do have a due process right to counsel in Alabama dependency proceedings under the U.S. Constitution.  Although the Roe case precedes the U.S. Supreme Court's decision in Lassiter v. Dep't of Social Services, 101 S.Ct. 2153 (1981), it is arguably distinguishable, because Lassiter was about termination of parental rights not dependency, and it was about parents not children.

 

In another federal case, the Fifth Circuit in Davis v. Page considered a class action challenging the constitutionality of child dependency proceedings against indigent parents who were not provided with counsel at the state’s expense. 640 F.2d 599, 600 (5th Cir. March 1981).[1]  The court said that in order to determine whether a right to counsel was included under the requirements of due process in this case, it was necessary to determine the plaintiff’s liberty interest at stake.  Id. at 602.  The court found that (1) Davis, the lead plaintiff, had an enormous interest in the dependency proceeding; (2) appointment of counsel could significantly reduce the risk that her child would be wrongly found dependent; and (3) the state had a substantial interest in decreasing the risk of an erroneous decision, and the financial cost of appointing counsel in these situations was outweighed by the liberty interest of indigent parents and their children. Id. at 603.  Therefore, the court determined that in a formal adjudication of dependency under Florida law, an indigent parent must be offered and provided with counsel where significant deprivation of parental custody is threatened, in order to comply with the constitutional requirements of due process. Id. at 604.  However, the court noted its decision did not apply to child custody cases involving two private parties and was applicable “only when the state actively interferes with the integrity of the family.” Id. at 605.

 

The decision was subsequently vacated by the U.S. Supreme Court after its decision in Lassiter and remanded to the Fifth Circuit.  Davis v. Page, 714 F.2d 512, 514 (5th Cir. 1983).  The Fifth Circuit applied the Mathews test used in Lassiter to the dependency proceeding in Davis to determine whether it was different from a termination of parental rights proceeding for purposes of the right to counsel under due process. Id. at 515.  Ultimately, the court found that application of the test led to the same result for dependency proceedings that Lassiter had found for termination proceedings, because in the dependency proceeding at issue, (1) the parent’s interest was very strong; (2) the state’s pecuniary interest was comparatively weak; and (3) the risk of an erroneous deprivation was potentially but not always high.  Id. at 517.  Therefore, the court was compelled to hold that in dependency proceedings, there was a presumption against counsel on a case-by-case basis. Id. at 518.



[1]              On October 1, 1981, the Fifth Circuit was divided to create the new Fifth and Eleventh Circuits.  This decision is included here because it was decided prior to the split.  However, it is unclear whether this decision is specific to Florida law or is more broadly applicable, and the reader should use their own judgment in making this determination.

Appointment of Counsel: categorical Qualified: yes