Right to counsel

Key_development Question_mark

Litigation, Termination of Parental Rights (State) - Birth Parents

Massachusetts courts have established a constitutional right to counsel for indigent parents contesting a petition filed by the state to dispense with parental consent to adoption. Dept. of Public Welfare v. J.K.B., 379 Mass. 1 (1979). The court established a right to counsel under the procedural due process clause of Art. 10 of the Massachusetts Declaration of Rights.


In granting a right to counsel to indigents in these involuntary adoption cases, the court considered the fact that such a case "may well involve complex questions of fact and law, and require the marshaling and rebutting of sophisticated expert testimony."  The presence of counsel, the court determined, would assist litigants in adequately addressing these questions and enable them to present a proper defense to charges of parental unfitness. The court added that "virtually every other court which has faced [the issue of whether to appoint counsel to indigent parents in custody proceedings] has reached the same conclusion." The court also articulated the idea that the "loss of a child may be as onerous a penalty as the deprivation of the parents' freedom," and the "interest of parents in their relationship with their children has been deemed fundamental."

Appointment of Counsel: categorical Qualified: no