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Another Victory for Civil Gideon

January 16, 2014

Due process rights recently took another step forward as Hawai’i joined the overwhelming majority of states that automatically appoint counsel for indigent parents in child welfare proceedings.  On January 6th, the Hawai’i Supreme Court held unanimously that indigent parents have a constitutional right to legal counsel in cases where the state seeks to remove children from their parents’ home and place them into the foster care system.

Under Massachusetts law, legal counsel must be appointed within 14 days of a petition filed for care and protection proceedings.  These are difficult cases in which a juvenile court judge must decide what is in the best interest of the child.  The judge determines whether a child has been or is at risk of serious abuse or neglect by a parent or guardian, whether the guardian is fit to care for the child, and who will have custody.

The ruling in Hawai’i came in the case of In The Interest Of TM, in which the Department of Human Services (DHS) tried to take custody of a child from the petitioner.  The petitioner was not granted counsel until 19 months into proceedings terminating her parental rights.  The Hawai’i Supreme Court held that the Family Court abused its discretion by failing to appoint counsel earlier, noting that the delay did not give the petitioner a fair chance to defend herself due to the complex legal issues at hand and the significance of the proceedings.  Furthermore, the Court noted that the petitioner’s behavior improved significantly after the appointment of an attorney – she started making positive progress in her personal and home life, in large part because she was better able to understand what she needed to do in order to have a chance at custody of her child.

When a state doesn’t require and subsidize legal counsel, the alternative is often pro se litigants who are at a major disadvantage at achieving justice.  The stakes are high in these cases and everyone should be represented by an attorney.


Don’t forget to mark your calendars on Thursday, January 30th for the 15th annual Walk to the Hill.  This event, where 650 lawyers speak with legislators and staffers on the impact of civil legal aid funding in Massachusetts, is one of the largest of its kind nationally and kicks off the year of advocating for legal services.


UPDATE – For those looking for more information after last week’s post, we recommend this video on juvenile justice issues in which attorney Hank Coxe gives an entertaining and moving speech on the subject.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association