Discretionary appointment of counsel

Key_development Question_mark

Legislation, Abuse/Neglect/Dependency - Accused Parents

Minn. Stat. § 260C.163, subd. 3(b), which governs the hearing procedures for child protection  cases, specifies that "Except in proceedings where the sole basis for the petition is habitual truancy, if the ... parent, guardian, or custodian desires counsel but is unable to employ it, the court shall appoint counsel to represent ... the parents or guardian in any case in which it feels that such an appointment is appropriate if the person would be financially unable to obtain counsel under the guidelines set forth in section 611.17." (emphasis added)

In In re Welfare of the Child of A.M.C., 2018 Minn. App. LEXIS 436 (Minn. App. 2018), the court found that the use of the term “parent” rather than “party” in 260C.163 was deliberate, and thus a nonparty adjudicated father should have been entitled to appointed counsel in the CHIPs proceeding (he was appointed counsel for the termination proceeding, and the termination ruling was the order he appealed).  However, the court declined to reverse the termination of parental rights on the basis of this CHIPs appointment failure, since a) the father did not appeal the denial of appointment at the time or specify the reasons why he should be appointed counsel (although notably, the statue imposes no such requirement on the litigant); b) the Court of Appeals could “infer” reasons why the district court might have declined to appoint counsel (like the father’s lengthy incarceration period); and c) the child’s interest in timely permanency, given the fact that the child had been placed out of home for 3 years.

Appointment of Counsel: categorical Qualified: yes