Discretionary appointment of counsel

Mo. Ann. Stat. § 211.211 states that "[T]he court shall appoint counsel for the [child's] custodian if it finds . . . [t]hat the custodian is indigent[,] . . . desires the appointment of counsel[,] . . . [and t]hat a full and fair hearing requires appointment of counsel for the custodian."

In In re J.R., 347 S.W.3d 641, 645 (Mo. App. 2011), the court noted that "Several Missouri courts have taken the trial court's obligation a step further, and required that the trial court either appoint counsel for a parent or secure an affirmative waiver of counsel."

In In re N.S., 77 S.W.3d 655, 658 (Mo.App.E.D. 2002), the court held that this statutory right to counsel applied even where the parent a) requested counsel more than two months after the dispositional review hearing (but before two review hearings and the filing of the TPR petition); and b) failed to fully fill out the court appointment form despite the warning that failing to do so would result in disapproval of the application. And in In the Interest of C.F., 340 S.W.3d 296 (Mo. Ct. App. 2011), the court rejected the state’s argument that a father was not a “custodian” due to not living in the family home and sometimes going a week without seeing his children.  The court responded:

We agree that Father is a "custodian" for purposes of the right to appointed counsel under Section 211.211.4 and Rule 116.01. Rule 110.05(a)(5) provides that, as used in the rules governing juvenile proceedings, the term "'custodian' includes parent, guardian of the person, and any person having legal or actual custody of a juvenile." Mo. Sup. Court Rule 110.05(a)(5) (2008).  Furthermore, courts have held that the "custodian" of a juvenile includes a parent. See In re L.E.C., 182 S.W.3d 680, 685 n.5 (Mo.App.W.D. 2006); In re J.L.C., III, 844 S.W.2d 123, 128 n.2 (Mo.App.S.D. 1992). There is no dispute that Father is the natural parent of C.F. and A.K.. We therefore find that Father is a "custodian" under Section 211.211 and Rule 116.01.

The court also held that the failure to appoint counsel until the TPR stage was reversible error, even where the parent "was given an opportunity to cross-examine and otherwise participate in the hearing[s].”