Civil Right to Counsel for Indigent Parents in Contested Adoptions: An Argument for Due Process and Equal Protection When Parental Rights Are Terminated in Private Civil Actions
By Amie K. Wilcox
A
n indigent birth parent who seeks to protect her parental rights is not entitled to appointed counsel in only one instance—if she objects in a private adoption. Act 599 of 2021 gives her the right to counsel if she consents to the adoption. And Ark. Code Ann. § 9–27–316(h) provides a right to appointed counsel in dependency and neglect proceedings brought by the state. However, the indigent birth parent who desires to contest a private adoption and protect her rights has no right to assistance of counsel. That issue, which the Arkansas Supreme Court declined to address in Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580, continues to present itself in Arkansas courts, and the courts of other states have addressed the issue in the constitutional context of due process and equal protection. This article suggests the time has come to address it in Arkansas, particularly given the adoption of Act 599. The Development of the Right to Counsel The Due Process Clause of the Fourteenth Amendment to the United States Constitution states: “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” Likewise, Section 8 of the Arkansas Constitution provides: “No person shall . . . be deprived of life, liberty or property, without due process of law.”1 The Supreme Court determined in Lassiter v. Department of Social Services of Durham County that whether due process requires the appointment of counsel in a parentaltermination proceeding is a matter for the trial court to determine on a case-by-case basis, subject to appellate review.2 In making such determination, the trial court must utilize the balancing test articulated in Mathews v. Eldridge.3 These factors weigh (1) the private interests at stake, (2) the government’s interest in the matter, and (3) the risk that the procedures used will lead to an erroneous decision. In Lassiter, the Court observed that the parent’s interest is one of utmost importance, as is the state’s interest in the welfare of the child. These factors comprise the judicial scale that balances the factors’ net weight against the presumption that there is a right to appointed counsel only where an issue of fundamental fairness is at stake comparable to the loss of the individual’s personal liberty.4 In analyzing the Mathews factors, the Lassiter Court recognized “a parent’s desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful
Amie K. Wilcox is an attorney at Friday, Eldredge & Clark LLP in Little Rock. She practices healthcare regulatory law and was named a 2021 Outstanding Pro Bono Attorney by Legal Aid of Arkansas. 22
The Arkansas Lawyer
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