Indigent parents at risk of having the state terminate their parental rights now have access to legal counsel due to a recent Hawaii Supreme Court decision. In an unanimous opinion, the Court ruled that indigent parents have a constitutional right to legal counsel in cases where the State is seeking to place their children into the foster care system

Prior to the recent decision, parents at risk of losing their children who could not afford an attorney were often left with no resources to challenge the decision.

The Court’s decision arose out of a case involving an underage mother and her child. (Both minors’ identities are shielded by the court; the child is known only as TM.) The family court did not provide TM’s mother with a court-appointed attorney until after TM had been in foster care for 19 months; the family court subsequently terminated the parental rights of TM’s mother.

TM’s mother argued that the state violated her due process rights by terminating her parental rights because she did not have a fair opportunity to defend herself against the state in the earlier abuse and neglect stages.

The mother appealed the case, and on June 28, 2013, the Hawaii Intermediate Court of Appeals upheld the ruling of the family court in a 2-1 ruling; Chief Judge Craig Nakamura dissented, stating his belief that the family court abused its discretion in failing to appoint an attorney for TM’s mother earlier in the proceedings.

TM’s mother asked the Hawaii Supreme Court to review the Appeals Court opinion. In October 2013, Legal Aid Hawaii Appleseed, and the ACLU submitted a brief in support of the request for Supreme Court review and urged the Court to rule not just on the rights for TM’s underage mother, but for all parents regardless of age. The case was argued on December 5th, and on January 6, 2014 the court issued its decision. The decision became effective immediately.

“This is a happy day for Hawaii,” said Legal Aid Society of Hawaii’s Executive Director Nalani Fujimori Kaina. “This decision benefits both parents and their children by ensuring equal treatment of both parties by the court, and may help avoid situations where children are improperly removed from their homes.”

The court admitted that the lack of legal counsel can result in improper terminations of parental rights. The court also noted that “the State’s decision to deprive a parent of his or her child is often ‘more grievous’ than the State’s decision to incarcerate a criminal defendant.”

The right to legal counsel is essential for a fair trial in the criminal context; and the court recognized that it is also necessary for a fair procedure in parental termination proceedings.

“[The recent] decision protects our constitutional right to due process, and affirms the core American value that our courts operate in a fair and consistent manner for all,” said Daniel Gluck, Senior Staff Attorney for the ACLU of Hawaii.

Prior to the decision, access to court-appointed legal counsel for such cases in Hawaii was determined on a case-by-case basis by court officials. As such, an indigent parent would often have to navigate the judicial process without an advocate. This is contrary to the practice in nearly all other states, where counsel is automatically appointed for all indigent parents.

“Our justice system became more just today,” said Gavin Thornton, Deputy Director of the Hawaii Appleseed Center for Law and Economic Justice. “No parent should face a court alone as the State moves to take his or her child away.”

The decision followed the recommendations in a brief submitted to the court by a group of public service law organizations in Hawaii including Legal Aid Society of Hawaii; Hawaii Appleseed Center for Law and Economic Justice; and American Civil Liberties Union of Hawaii Foundation. The National Coalition for a Civil Right to Counsel worked with the three organizations on the drafting of the brief.

Referencing the amicus brief submitted by Legal Aid, Hawaii Appleseed, and the ACLU, the Hawaii Supreme Court noted that using a case-by-case approach required courts to determine in advance what difference legal representation might make; it also made it impossible to determine whether the decision to not appoint counsel affected the outcome of the case since unrepresented parents are not likely to be able to raise the issues showing that counsel was necessary.

Local civil rights advocates have praised the decision as a necessary safeguard for fair court procedures.

Photo of Hawaii Supreme Court building: Wikimedia Commons