Constitution requires counsel for children in adoptions, MA high court rules

Key_development Question_mark

11/16/2012, Litigation, Termination of Parental Rights (Private) - Children

In Adoption of Meaghan, 961 N.E.2d 110 (Mass. 2012), the Massachusetts Supreme Judicial Court extended Dept. of Public Welfare v. J.K.B., 379 Mass. 1 (1979) (finding right to counsel in state-initiated petitions to dispense with consent to adoption) to privately initiated adoption proceedings that are contested.


The Meaghan court held that the parents and children were both entitled to counsel in private adoptions as a matter of due process and equal protection, relying in part on J.K.B. Regarding the parent's right to counsel, the court commented, "Where the petitioner is a private party, the same fundamental, constitutionally protected interests are at stake, and the cost of erroneously terminating the parent's rights remains too high to require an indigent parent to risk it without counsel." As to the child's right to counsel, the court stated, "The decision whether or not to terminate is of enormous consequence to the child. The child cannot have a meaningful opportunity to be heard in a contested proceeding without the assistance of counsel, regardless whether the case is initiated by the department or other agency or by a private party. Moreover, as CPCS points out, children are entitled to appointed counsel in a variety of circumstances where the parent-child relationship is at stake."


The Massachusetts Court of Appeals held in In re Adoption of Gabe, 84 Mass.App.Ct. 286 (2013), that the In re Meaghan decision from the state high court (which found a state constitutional right to counsel for parents and children in private adoption cases) had retroactive applicability. It held that after the court held in 1979 that the right to counsel applied to state-initiated adoptions, "A predictable next step would be the extension of the right to termination proceedings brought by a private party and requiring the judicial authority of the State for their accomplishment." It cited to the U.S. Supreme Court's decision in Shelley v. Kraemer in support.

Appointment of Counsel: categorical Qualified: no