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Abstract

Nearly forty years ago, in Lassiter v. Dep’t of Soc. Servs., the United States Supreme Court ruled that indigent parents whose parental rights are being terminated by the state do not have an absolute right to court-appointed counsel. The Lassiter Court emphasized the lack of deprivation of physical liberty involved in cases regarding the termination of parental rights and upheld the Court’s long-held due process presumption that the right to appointed counsel exists only when an indigent individual may be deprived of physical liberty.

Because civil child welfare cases do not present a risk of deprivation of physical liberty for the parents, no presumption exists for the right to counsel. In its due process analysis, the Court used the three balancing factors from Matthews v. Eldridge to determine that termination of parental rights cases generally, and the mother in Lassiter specifically, cannot overcome the presumption against the right to counsel. Instead, the Court favored a case-by-case approach in which the state trial court would make the decision as to whether or not to appoint counsel, “subject, of course, to appellate review.”

The Court rejected the indigent mother’s arguments on constitutional grounds, but encouraged state courts and legislatures to consider that “wise public policy . . . may require that higher standards be adopted than those minimally tolerable under the Constitution” while noting that as of the time, “33 states and the District of Columbia provide statutorily for the appointment of counsel in termination cases.” Significantly, the Court also recognized that appointment of counsel implicated not just termination of parental rights cases but also all child welfare cases involving neglect, abuse, and dependency; in which termination may be only one of many outcomes.

In the intervening decades, the Supreme Court has not revisited this issue, and state courts have dealt with it in varying ways by creating a patchwork of statutes, case law, and practices that impact hundreds of thousands of families each year. In addition, even in states that now provide a right to counsel for indigent parents, vast differences exist in regard to the conditions under which counsel may or must be appointed, the length of that representation, training requirements, remuneration, and many other issues that impact the child welfare system.

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