Parents in child welfare cases in Hawaii have significantly stronger rights to counsel as a result of a new ruling from the state’s Supreme Court.
The court held that counsel must be appointed in child welfare cases as soon as the state files a case in court and that appeals courts can reverse a lower court’s adverse ruling against parents if they aren’t afforded an attorney right away. Generally, a case is filed in court when the state agency is seeking foster care custody of the child.
The Supreme Court’s ruling applies not only to cases in which the state seeks to place a child in foster care, but also when it seeks family supervision. In the specific case before the court, the mother’s termination of parental rights has been vacated and the case has remanded for further proceedings.
The case was filed as a follow-up to a previous ruling from 2014 that had affirmed Hawaiian parents’ right to counsel in child welfare cases, but was not clear about just when the right begins to apply. Nor did the original case address parents’ right to counsel in instances where the child welfare agency was seeking only to supervise the family.
There are 38 states, including Hawaii, that offer a categorical right to counsel for parents accused in court of abuse or neglect, according to the National Coalition for a Civil Right to Counsel, which filed an amicus brief in the case along with several other legal groups. Seven states give judges the discretion to appoint upon request, and six states guarantee counsel under certain conditions.
In late 2018, the Trump administration expanded federal funds that states could tap into to provide counsel to parents and children involved in child welfare cases through the Title IV-E entitlement. States can now seek a 50% reimbursement for the cost of legal fees to both parties.
The Legal Aid Society of Hawaii also was involved in the latest case.
Correction: This article was updated to reflect that the National Coalition for a Civil Right to Counsel did not file the lawsuit in question, but did file an amicus brief.