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Victory! Hawaii Supreme Court declares constitutional right to counsel for parents in child welfare proceedings

January 6, 2014: In an important step forward for the civil right to counsel movement, the Hawaii Supreme Court has unanimously ruled that parents living in poverty have a constitutional right to a state-paid lawyer in child welfare proceedings. The January 6th decision replaces Hawaii law that had said judges are not required to provide free counsel to indigent parents in child welfare proceedings, leaving it up to the judge as to whether to do so. This older law had resulted in the State taking children away from parents who could not afford a lawyer to challenge the State’s action.

In 2009, a 15-year-old mother was accused of neglecting her infant child, but the trial judge refused to provide her a lawyer because she was a minor, instead giving her a guardian ad litem who was not required to advocate for what she wanted. In fact, the teen mother had no legal advocate for most of the proceedings against her. Although she was finally given a lawyer at the end when the state tried to permanently terminate her parental rights, it was too late at that point, and her parental rights were severed. In 2013, the mother appealed to the Hawaii Supreme Court, arguing that the trial court should have appointed her counsel as soon as the state accused her of neglect.  
The National Coalition for a Civil Right to Counsel (NCCRC), which is staffed by the Public Justice Center, saw an opportunity in this case to argue that all Hawaii parents should be provided counsel when their parental rights are threatened, rather than having judges choose when to provide counsel. The NCCRC worked with the ACLU of Hawaii, Hawaii Appleseed, and the Legal Aid Society of Hawaii to draft an amicus brief filed by those organizations that urged the Court to abandon the case-by-case approach in order to protect all Hawaii parents who live in poverty. The amicus brief argued that most of the other states require appointment of counsel in all child welfare cases, and that the case-by-case approach was prone to error and inconsistent application throughout the state.
On January 6, 2014, the Hawaii Supreme Court ruled that not only had the trial court erred in refusing to appoint counsel for the teen mother, but also that all indigent parents in child neglect and termination of parental rights proceedings have a right to appointed counsel under the Hawaii Constitution. Adopting the reasoning outlined in the amicus brief, the Court discussed the strong interests of parents in retaining ties to their children, the huge risks of error with the case-by-case approach, and the protective approach taken by most other states. Without the amicus brief, it is possible the court would have simply ruled for the teen mother without deciding whether all other parents had a right to counsel. In fact, just a few years ago, the Hawaii Supreme Court did just that in a different case.
The court case has already garnered significant attention, with stories in virtually every newspaper in Hawaii, including the Maui News and the Honolulu Star-Advertiser, and the AP story was picked up as far away as North Carolina and Connecticut.  We congratulate the Hawaii organizations that filed the amicus brief with help from the NCCRC, and celebrate this important victory to protect parents!

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