Court: when parents square off in private termination case, children must have counsel
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
03/23/2018, Legislation, Termination of Parental Rights (Private) - Children
Tex. Fam. Code Ann. § 107.021(a-1) provides that a court must appoint an "amicus attorney" or attorney ad litem for the child in a private termination of parental rights case "unless the court finds that the interests of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child's interests . . ."
In In re D.M.O., 2018 Tex. App. LEXIS 1992 (Tex. App. 2018), the Court of Appeals noted, “Several courts have determined that where one parent sued another parent to terminate his or her parental rights to their child, the trial court could not properly find that the child's interests were adequately represented by a party to the suit", since the parents are litigating their personal interests. It then held that given the parents were clearly adversarial and notwithstanding the fact that the child allegedly supported termination of parental rights, the trial court should have appointed counsel.
THe D.M.O. court then held the matter had to be remanded for a new trial:
Due to the serious nature of parental termination proceedings and the important role of amicus and ad litem attorneys in assisting the trial court in making a best interest determination in contested termination suits, a trial court's failure to appoint an attorney ad litem or amicus attorney when required to do so ‘is error that cannot be treated as harmless.’
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: yes