High court rules in favor of indigent parents

HONOLULU — In a unanimous opinion on Tuesday, the Hawaii Supreme Court 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 home. 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 termination 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, the court found it 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 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.

“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,” said Legal Aid Society Director Nalani Fujimori Kaina.

Prior to the decision, access to court-appointed legal counsel for such cases was determined on a case-by-case basis by court officials. An indigent parent would 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 advocates the court noted that this approach required courts to determine in advance what difference legal representation might make, and it was not possible to determine whether the decision to not appoint counsel affected the outcome of the case.

“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,” said Daniel Gluck, ACLU senior staff attorney.

The court’s decision arose out of a case involving an underage mother and her minor child.

The family court did not provide the mother with a court-appointed attorney until after her child had been in foster care for 19 months and her parental rights were terminated.

The mother argued that her due process rights were violated and appealed the case.

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