Case Summary: An incarcerated father appealed a Family Court decision terminating his parental rights, based on his lack of legal counsel at the termination hearing.  After the father’s arrest in December 1999, the paternal grandmother was given custody of his then 16-month-old son, John.  The boy’s aunt began caring for him in 2000.  In 2001, the aunt filed a dependency/neglect petition for custody of John, which the Family Court granted.  In 2003, the aunt filed a petition to terminate both the mother’s and father’s parental rights.  The mother consented.  The father opposed the termination, and represented himself at the termination hearing.

The Supreme Court reviewed its prior decisions on the issue of a parent’s right to counsel, noting that “a parent has no absolute right to the appointment of counsel.”  Nevertheless, Family Court Rule 207 allows the appointment of legal counsel for parents, upon the parents’ request, in cases involving dependent, neglected or abused children in state custody.  Delaware courts routinely grant the requests of indigent parents for appointment of counsel when the state has initiated dependency and neglect proceedings or a termination of parental rights.

In this case, however, the boy’s aunt initiated the termination proceedings.  The Family Court never advised the father that he could ask the court to appoint an attorney for him, nor did it hold a hearing on the issue of appointment of counsel.

The Supreme Court ruled that the father had the same right to seek court-appointed counsel in a private termination proceeding as he would have had in a termination proceeding initiated by the state, holding that “the trial court must advise parents of their right to seek court-appointed counsel and must determine whether to appoint counsel, if requested, in all termination proceedings.”  Moreover, because the outcome of the termination proceeding could have been different if the father had been represented by counsel, the Supreme Court reversed the Family Court’s termination of the father’s rights and remanded the case. 

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