Discretionary appointment of counsel

Key_development Question_mark

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

There is no separate termination statute; instead, termination is treated as one type of disposition for a dependency petition. See 33 V.S.A. §§ 5318(a)(5). Additionally, Vt. R. Fam. P. Rule 3 says the procedures specified in Rule 2 (which include appointment of counsel) also apply to termination proceedings. Consequently, any counsel that is assigned for the dependency for the parent (which, according to Vt. Stat. Ann. tit. 13, § 5232, occurs when the "interests of justice so require") would continue through the termination phase.


The Vermont Supreme Court has also said, "Although in theory the appointment of counsel under § 5232(3) [] remains discretionary, in practice counsel are uniformly appointed to represent needy parents in termination proceedings from trial through appeal."  In re S.C., --- A.3d ---, 2014 WL 92238 (Vt. 2014). 


Additionally, parents have a right to counsel in Adoption Act terminations, as per 15A V.S.A. § 3-201, and it is extremely unlikely that a parent could be guaranteed counsel in a private termination (adoption) but be denied counsel in a state-initiated termintaion.

 

Finally, "By administrative order, this Court has also ensured continued representation of aggrieved parents on appeal, by providing that an appeal from a termination judgment is not considered a separate proceeding and thus does not require a separate application for the services of appellate counsel at state expense.' A.O. 4, § 4(c)(1)."  In re S.C., 2014 WL 92238 at ¶ 5.

Appointment of Counsel: discretionary Qualified: no