Hawai‘i Supreme Court: Indigent Parents Have the Right to Court-Appointed Counsel During Child Welfare Proceedings

Affiliate: ACLU of Hawaii
January 7, 2014 12:00 am

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Local civil rights advocates praise decision as necessary safeguard for fair court procedure

January 8, 2014

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HONOLULU – In a unanimous opinion, the Hawai‘i Supreme Court has ruled that indigent parents have a constitutional right to legal counsel in cases where the State seeks to place their children into the foster care system. Prior to this decision, the State could remove children from their parents’ home, and parents who could not afford an attorney were often left to their own devices to challenge the removal.

In its decision, the court recognized that the lack of 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.” Just as the right to counsel is an essential component of a fair trial in the criminal context, it is also necessary for a fair procedure in parental termination proceedings.

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

Prior to the decision, access to court-appointed legal counsel for such cases in Hawai‘i was determined on a case-by-case basis by court officials. This means that 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. Referencing the amicus brief submitted by Legal Aid, Hawai‘i Appleseed, and the ACLU, the Hawai‘i 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.

Daniel Gluck, Senior Staff Attorney for the ACLU of Hawai‘i, said: “Today’s 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.”

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

Legal Aid Society of Hawai‘i’s Executive Director Nalani Fujimori Kaina said: “This is a happy day for Hawai‘i. 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.”

Additional Case Background
The Court’s decision arose out of a case involving an underage mother and her child; both minors’ identities are shielded by the court, and 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, and 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. She appealed the case, and on June 28, 2013, the Hawai‘i Intermediate Court of Appeals (“ICA”) upheld the ruling of the family court in a 2-1 ruling; Chief Judge 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 Hawai‘i Supreme Court to review the ICA’s opinion. In October 2013, Legal Aid Hawai‘i 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, which becomes effective immediately.

The 43-page opinion can be found at:

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