Yesterday, there was a big victory for Hawaii parents in In re T.M., which found a state constitutional right for all parents in abuse/neglect and termination of parental rights cases. The National Coalition for a Civil Right to Counsel played a role in the case, and the background is described below.
So Hawaii is one of the handful of states that to now hasn't provided a right to counsel for either abuse/neglect or termination of parental rights cases, but rather made appointment discretionary pursuant to a statute. In T.M., a trial court refused to appoint counsel for a teenage mother in the abuse/neglect phase, even though her appointed guardian ad litem warned the court that he could not serve as both her GAL and her counsel due to a potential conflict of interest. Instead, the trial court waited to appoint counsel until she turned 18 and the state filed a termination of parental rights petition against the mother. Conversely, the court appointed counsel for the teen mother's parents (who were also accused of abuse/neglect). The Hawaii Court of Appeals affirmed the trial court's denial, saying the mother had gotten help from a lot of various sources, including her guardian ad litem, and so didn't need counsel (or alternatively, that the failure was not prejudicial).
We heard about the case right after the petition for review was filed with the Hawaii Supreme Court. The petition argued that the trial court abused its discretion under the statute, although it mentioned in a footnote that the better standard was to appoint counsel in all child welfare proceedings. After learning about the case, but before the Hawaii Supreme Court had decided whether to grant the petition, our Coalition determined there needed to be an amicus brief reaching the larger issue, and convinced the ACLU of Hawaii, Hawaii Appleseed, and the Legal Aid Society of Hawaii to sign on to the brief that I drafted and that they edited. The brief argued that Hawaii was way behind the rest of the country on this issue and that the case-by-case standard created a host of practical problems at the trial and appellate level. It then concluded that while the trial court had undoubtedly erred in this particular case, the time had come to declare a state constitutional right to all parents in abuse/neglect and termination cases. After the Court granted review, we worked with petitioner's attorney to ensure that the his oral argument presentation would address the categorical right to counsel issue, not just the right to counsel for his client under the "abuse of discretion" standard (which was the focus of his petition and which would allow the Court a "way out" of dealing with the bigger issue). At oral argument, the petitioner's attorney did a skillful and fantastic job arguing both for his client and for the larger issue, and the Court was very positive.
Yesterday, the Court issued its unanimous opinion (attached), which held that not only had the trial court abused its discretion under the statute, but also that "parents have a constitutional right to counsel under article I, section 5 [of the Hawaii Constitution] in parental termination proceedings and that from and after the filing date of this opinion, courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child." Despite saying "in parental termination proceedings", the subsequent language makes it clear the right to counsel reaches back to cover the abuse/neglect phase. The Court quoted from our amicus brief and otherwise relied on a number of the arguments we put forward regarding the problems with the case-by-case approach. It's very possible that without the amicus brief, the court would have simply ruled on the abuse of discretion and stopped there (or perhaps not even accepted the petition for review).
So now there are only a handful states left for us to fix on the abuse/neglect and termination front. Mississippi is our next project, and it's already in the works.
Coordinator, National Coalition for a Civil Right to Counsel
Staff Attorney, Public Justice Center
1 North Charles Street, Suite 200
Baltimore, MD 21201
(334) 956-8308 [voice]
(334) 956-8481 [fax]