Right to counsel

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

Before the decision of the U.S. Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (finding no Fourteenth Amendment categorical right to counsel in termination of parental rights proceedings), the Oklahoma Supreme Court considered a case where a mother was not appointed counsel in a termination of parental rights case, notwithstanding a statute requiring that counsel be appointed in such cases. In re Chad S., 580 P.2d 983, 984-985 (Okla. 1978). The court commented that "[n]o decision of this court has previously required the trial court, as a matter of constitutional due process, to advise parents in a termination order of their right to court-appointed counsel if they are shown to be indigent."  However, it then went on to broadly state that "[t]he fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings. This includes the right to counsel." The court relied on a series of U.S. Supreme Court rulings for its decision.

 

The high court subsequently revisited the right to counsel in termination proceedings in a post-Lassiter case and found there is a right to counsel in such proceedings, including the right to effective counsel. In re D.D.F. 801 P.2d 703, 706 (Okla. 1990). nterestingly, the court rejected Lassiter in favor of its prior determination in In re Chad S., stating, "[a]lthough the federal constitution does not require that counsel be appointed in all termination proceedings, we believe that the rights at issue are those which are fundamental to the family unit and are protected by the due process clause of the Oklahoma Constitution, Art. 2, § 7." More recently, Oklahoma courts have found an abuse of discretion where a trial court refused to provide a continuance resulting in a mother being represented by a wholly unprepared counsel at hearing to terminate her parental rights. In re S.S., 90 P.3d 571 (Okla. Civ. App. 2004).

Appointment of Counsel: categorical Qualified: no