REQUIREMENT OF APPOINTMENT OF COUNSEL FOR INDIGENT PARENTS IN NEGLECT OR TERMINATION PROCEEDINGS - A DEVELOPING AREA

• NCJ Number: 48703
• Journal: Journal of Family Law Volume: 13 Issue: 2 Dated: (1973-1974) Pages: 223-244
• Author(s): R S CATZ; J T KUELBS
• Date Published: 1973
• Length: 22 pages
• Corporate Author: University of Louisville
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE RECOGNITION OF BOTH STATE AND FEDERAL COURTS OF THE RIGHT OF INDIGENT PARENTS TO THE PROTECTION OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE 14TH AMENDMENT IN TERMINATION CASES IS TRACED.

Abstract

ALTHOUGH A PROCEEDING TO TERMINATE PARENTAL RIGHTS IS A CIVIL ACTION AND, HISTORICALLY, COURT-APPOINTED COUNSEL HAS BEEN MANDATED ONLY FOR CRIMINAL CASES, THERE IS GROWING RECOGNITION THAT THE PARENT IS IN DANGER OF BEING OVERWHELMED BY STATE RESOURCES DURING NEGLECT HEARINGS. COUNSEL IS NECESSARY TO PROTECT PARENTAL RIGHTS. FEDERAL COURT DECISIONS STRESSING THE IMPORTANCE OF PARENTAL RIGHTS ARE BRIEFLY REVIEWED. DURING TERMINATION HEARINGS THESE RIGHTS ARE OFTEN NOT PROTECTED. THE STATE HAS ATTORNEYS, EXPERTS, AND RESOURCES. THE PARENT APPEARING ALONE HAS LITTLE RECOURSE TO OTHER EXPERTS TO REFUTE THE CHARGES BEING BROUGHT AGAINST THE HOME. FURTHER, THE SOCIAL AGENCIES INITIATING TERMINATION PROCEEDINGS ARE OFTEN THE SAME AGENCIES WHICH CAN INSTITUTE CRIMINAL CHARGES AGAINST THE PARENT. COUNSEL IS ESPECIALLY NEEDED TO HELP THE PARENT AVOID SELF-INCRIMINATION. ONCE PARENTAL RIGHTS HAVE BEEN TERMINATED, THE CHILD IS LEGALLY DEAD TO THE PARENT. THE CHILD MAY BE ADOPTED WITHOUT PARENTAL PERMISSION, AND THE ADOPTION RECORDS ARE USUALLY SEALED. THE RESULT IS THE SAME AS A NATURAL DEATH OF THE CHILD. SEVERAL STATE COURT RULINGS MANDATING THE RIGHT TO COUNSEL ARE SUMMARIZED. IT IS CONCLUDED THAT A PARENT'S RIGHT TO HIS OR HER OWN CHILD IS AS IMPORTANT AS THE DESIRE NOT TO GO TO JAIL. THE IMPORTANCE OF COUNSEL IS SHOWN BY THE FACT THAT IN 1968 A STUDY FOUND THAT WHEN PARENTS WERE UNREPRESENTED, 79.5 PERCENT OF THE PROCEEDINGS RESULTED IN NEGLECT ADJUDICATIONS WHILE 16.6 PERCENT OF PETITIONS WERE EITHER WITHDRAWN OR DISMISSED. WHEN THE PARENTS WERE REPRESENTED BY COUNSEL, 62.5 PERCENT OF THE PROCEEDINGS RESULTED IN NEGLECT FINDINGS, AND 37.5 PERCENT WERE WITHDRAWN OF DISMISSED. EVEN WHEN NEGLECT WAS FOUND, CHILDREN WERE REMOVED FROM THE HOME PERMANENTLY IN ONLY 18.2 PERCENT OF THE CASES INVOLVING COUNSEL, AS OPPOSED TO 40.6 PERCENT OF THE CASES WITHOUT COUNSEL. THE AUTHOR STATES THAT DENIAL OF COURT-APPOINTED COUNSEL TO INDIGENT PARENTS FOR SUCH PROCEEDINGS IS COMPLETELY IGNORES THE MANDATES OF THE 14TH AMENDMENT. (GLR)