Case Summary: This case stems from an appeal from a Family Court order terminating the parental rights of Brown and Cooper in their two children. The children were 6 and 4 years of age, and had been in foster care since August 26, 1999. The Delaware Supreme Court reversed the Family Court's order and remanded the case back to the Family Court for a new trial. The Supreme Court acknowledged that there have been "substantial dynamic statutory and procedural developments since the United States Supreme Court and this Court last addressed the right to counsel in termination of parental rights proceedings". The Court began its analysis by addressing the right to counsel in the dependency and neglect phase of child welfare proceedings. The Court noted that children are afforded legal representation at State expense through the Office of the Child Advocate (and CASA) and DFS is provided legal representation by the Attorney General's Office leaving only parents without the right to representation by legal counsel. The Court noted that, while not mandated by the United States Constitution, over half of all states have established a right for indigent parents to be represented by counsel either by statute or as a matter of state constitutional law. The Court ultimately refused to rule on the issue of an indigent parent's right to counsel in dependency/neglect proceedings because the issue was not before the Court in that these particular parents had retained private counsel to represent them in the early stages.

The Court then went on to address the right to counsel in termination of parental rights proceedings. The Court reiterated the holding of the United States Supreme Court in Lassiter v. Department of Social Services which required that counsel should be appointed to parents on a case-by-case approach, weighing several factors including the private interests at stake, the government's interest and the risk that the procedures used will lead to an erroneous decision. Delaware has utilized this approach since that decision was rendered in 1981. Today, Delaware remains one of only five states employing this method. The Office of the Child Advocate, as amicus curiae in this matter, argued that the changes in the law since Lassiter favored a holding that the Delaware Constitution requires appointment of counsel in all cases, the Court again refused to rule on that issue holding it was not squarely before the Court.

Finally, the Court addressed the procedural issues in the case, which ultimately caused the Court to reverse the Family Court's decision and remand for further proceedings. The Court concluded that the Family Court notice to parents of the termination of parental rights proceedings was deficient because it did not alert parents as to their potential right to counsel. The Court held that this lack of notice violated a parent's right to due process under the Delaware Constitution and the United States Constitution as applied by Lassiter. (The notice did indicate that failure to appear may result in a default judgment being entered). The Court held that the notice to parents must contain language advising them of their right to counsel and must also contain information on how to effectively and timely assert that right to counsel. Since the parents in this case were not apprised of their potential right to counsel in the notice, their due process rights were violated. The Court therefore instructed the Family Court to hold both a Lassiter hearing and termination hearing on a priority, expedited basis.

P.S. On remand, Father requested counsel and then consented to the termination of his parental rights. Mother neither requested counsel, nor appeared for the second termination hearing. The Family Court once again terminated parental rights. The matter was affirmed on appeal.

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