Right to counsel

Key_development Question_mark

Litigation, Abuse/Neglect/Dependency - Accused Parents

In Danforth v. State Department of Health & Welfare, 303 A.2d 794 (Me. 1973), a case preceding Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981) (which found no absolute Fourteenth Amendment right to counsel in termination of parental rights proceedings), the Supreme Judicial Court of Maine held that indigent parents had the right, under both the state and federal constitutions, to appointed counsel in state-initiated child neglect proceedings. In determining that there is a right to counsel in these civil proceedings, the court declared that "where the interest sought to be impinged by the State is the natural and fundamental right of the parents to the custody of their children, the minimal requirements of procedural due process include the right to have counsel appointed at State's expense when the parents are indigent and desire such counsel."


The Maine court first determined that a parent's right to raise children is a fundamental, substantive constitutional right. Finding that the right involved was fundamental, the court then looked at the nature of the proceeding to determine whether depriving the parents of counsel would violate their due process rights. The court cited the following characteristics of the neglect proceedings to support its holding that indigent parents have a due process right to counsel: the fact that the state can employ its full resources against the defendant parents; the complexity of neglect proceedings and the difficulty laypeople might have understanding them; the accusatory nature of the proceedings; and the fact that the parents view the removal of the children as punishment.


In one recent case, Danforth was cited as an example of "decisions where we have found that rights guaranteed by Maine's Declaration of Rights were more protective than those granted by the federal Bill of Rights ..." State v. Cadman, 476 A.2d 1148, 1152 n.6 (Me. 1984); see also In re T.B., 65 A.3d 1282 (Me. 2013) (stating that "A parent determined to be indigent has a due process right to appointed counsel at State expense in a child protection proceeding initiated by the State, unless the right is knowingly waived", and citing to Danforth).This suggests Danforth has been reaffirmed under the state constitution, and therefore is not affected by Lassiter.

Appointment of Counsel: categorical Qualified: no