Right to counsel

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

In Reist v. Bay Circuit Judge, decided five years prior to Lassiter, a three-justice plurality opinion found a right to counsel in TPR proceedings under both the federal and state constitutions: “Because of the nature of parental rights termination proceedings and of the basic, fundamental nature of the parental relationship in our society, the Due Process Clause requires assignment of counsel at public expense for an indigent for hearings when the state seeks to terminate his parental rights.”  See 241 N.W.2d 55, 64 (Mich. 1976) (plurality opinion).  In reaching its decision, the court emphasized the fact that “[t]he state is the moving force in neglect and termination proceedings.”  Id. at 63.  “That this is a confrontation between the state and an individual is ‘a circumstance of great importance in determining a standard of fairness.’”  Id. (quoting Danforth v. State Dep’t of Health & Welfare, 303 A.2d 794, 796-97 (Me. 1973)).  The court stated that the parental interest was “of basic importance in our society,” that the parent-child relationship “occupies a basic position in this society’s hierarchy of values,” that “the integrity of the family unit has been zealously guarded by the courts,” and that a TPR proceeding is “one of the most drastic actions the state can take against its inhabitants.”  Id. at  62-63 & n.23.  Therefore, “any legal adjustment of  [parent and child’s] mutual rights and obligations affects a fundamental human relationship.”  Id. at  62.  The court also recognized that the constitutional interest in liberty “denotes not merely freedom from bodily restraint but also the right of the individual to . . . establish a home and bring up children[.]”  Id.


Although Reist did not formally utilize the traditional balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (which includes the risk of erroneous deprivation), the court analyzed many of the risks of error involved in pitting an unsophisticated and indigent parent against the vast resources of the state in a TPR case:


Parents most often involved in neglect and termination proceedings are usually the least equipped, it terms of intellectual and emotional resources, to respond in such proceedings.  “The indigent are frequently the least able to cope with government in its official functions … The case at bar was routine for the welfare workers and other juvenile court staff.  For the indigent mother, however, the entire proceedings were incomprehensible.”


Id. at 63-64 (citations omitted).  The court also noted that “[s]tudies indicate that termination of parental rights occurs less frequently when parents are represented by counsel.”  Id. at 64 & n.26 (citing Note, Child Neglect: Due Process for the Parent, 70 Colum. L. Rev. 465, 476 (1970)).


However, there is questionable precedential value to the above discussion of a constitutional right to court-appointed counsel at termination proceedings, given that it was part of a three-justice plurality opinion.  Two other justices concurredin the result, but disagreed with the necessity of a constitutional analysis.  See id. at 67 (Coleman & Fitzgerald, JJ., concurring).  The concurring justices described the plurality’s constitutional analysis as “dicta concerning an unauthorized issue” that “presents a broad and indistinct vista of ‘liberties’ to be protected and financial equalizing to be supplied.”  Id. at 69.  Another justice did not participate in the decision, see id. at 67, and the remaining justice dissented, concluding that no constitutionally protected right existed.  Id. at 70 (Lindemer, J., dissenting).


Nevertheless, some Court of Appeals decisions have cited Reist directly or indirectly for the proposition that the due process and/or equal protection clauses of the state and/or federal constitutions provide a right to counsel.  In re Powers Minors, 624 N.W.2d 472, 477 & n.10 (Mich. Ct. App. 2000) (addressing both due process and equal protection); see also In re EP, 595 N.W.2d 167, 175 (Mich. Ct. App. 1999) (“Although the constitutional provisions explicitly guaranteeing the right to counsel apply only in criminal proceedings, the right to due process also indirectly guarantees assistance of counsel in child protective proceedings.”), overruled on other grounds by In re Trejo, 612 N.W.2d 407 (Mich. 2000); Matter of Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986) (“The right to appointed counsel at such [termination] proceedings is . . . a fundamental constitutional right guaranteed by the equal protection clauses of the United States and Michigan Constitutions.”); but see In re Osborne, 603 N.W.2d 824, 828 & n.4 (Mich. Ct. App. 1999) (questioning whether the Michigan Constitution guarantees the right to court-appointed counsel for indigent respondents in termination proceedings, and citing Sanchez and Reist).

Appointment of Counsel: categorical Qualified: yes