The relationship between a parent and child is among the most closely protected rights. Termination of parental rights is severe and will not be entered into lightly in New Mexico. Because it is such a severe step, a parent has many rights throughout the proceedings.
The question here is whether the parent has a right to an attorney during these proceedings. The 6th Amendment right to counsel is typically restricted to criminal matters. The right to counsel does not generally extend to civil matters.
However, this right may be extended by statute. In the case of the termination of parental rights in New Mexico, the New Mexico court of Appeals has found that the New Mexico Children‘s Code did just that. In New Mexico, an indigent parent does have a right to counsel and failure to advise of this right is reversible error.
The New Mexico Court of Appeals case of Chris L. v. Vanessa O. addresses just this issue of indigent party‘s right to counsel in a termination of parental rights proceeding. In this case, the Court had to determine whether the district court‘s failure to advise the biological mother that she was entitled to an attorney constituted fundamental error and therefore reversible error.
For background, the case began as a guardianship, but after lengthy and contentious guardianship and visitation proceedings, the case turned into an adoption proceeding. Initially, the mother had agreed to place the child with adoptive parents while she began working on a family plan.
To facilitate this plan, the adoptive parents sought to be appointed as permanent guardians. Pending a hearing on the permanent guardianship petition, the district court entered a temporary order that appointed the adoptive parents as the temporary guardians with the assumption that the child would be transitioned back to the mother.
The mother consented to this, and she agreed to have a minimum of two unsupervised visits per week with the child. During these guardianship proceedings, the mother wasn‘t represented by an attorney.
Soon thereafter, the relationship between the mother and the adoptive parents became strained. Only four days after the temporary order, the mother opposed the adoptive parents‘ petition for permanent guardianship. The mother claimed the adoptive parents stopped communicating with her.
In response, the adoptive parents filed a motion to terminate the mother‘s visits with the child. The mother responded by asking for unlimited visits with the child, and she also moved to revoke the adoptive parents‘ temporary guardianship. Later on, the parties actually came to an agreement. The mother agreed to the adoptive parents becoming the child‘s permanent guardians, and the adoptive parents agreed to work with the mother on the goal of transitioning the child back into her care. However, relations between the parties soon became strained again.
Proceedings on Termination of Parental Rights
The adoptive parents filed a new motion to terminate the mother‘s parental rights and to adopt the child. During that proceeding, the court never informed the mother that it would appoint a lawyer for her if she was indigent and requested counsel. The court only told her that she could hire a lawyer at any point during the proceedings.
At the Court of Appeals, the Court emphasized that the mother “faced a challenging proceeding.” It explained that the district court‘s pre-trial order listed 21 witnesses that the adoptive parents planned to call, including 6 doctors. At trial, the adoptive parents‘ counsel announced that he‘d call 16 witnesses, including the 4 doctors.
At the trial, not surprisingly, the mother was clearly overwhelmed and lacked sufficient ability or knowledge to adequately defend herself.
Right to Counsel in Termination of Parental Rights Proceedings
The Court of Appeals explained that the key question before it was whether a district court must advise a parent of the right to counsel under New Mexico statutory law. The specific statute states the following with regard to the district court‘s appointment of counsel in an adoption proceeding involving possible termination of parental rights:
“Shall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court‘s discretion, appointment of counsel for an indigent parent is required in the interest of justice.”
Abuse and Neglect v. Adoption
The Court first explained that New Mexico has two different types of termination proceedings: those due to abuse and neglect, and those dealing with adoption. In abuse and neglect proceedings, the statute specifically states that counsel “shall be appointed for the parent.” Differently, when it comes to adoption proceedings, the language suggests that a parent must request counsel.
On the other hand, the Court found that the language wasn‘t clear when it came to adoption proceedings, and thus it looked to legislative intent. The Court reasoned that it wouldn‘t make sense for the Legislature to “Draw a distinction between a parent in an abuse and neglect proceeding and a parent in an adoption proceeding,” since both situations lead to the same result: the end of the parent‘s right to a relationship with the child.
As such, the Court determined that, under the provisions of the Children‘s Code, a district court must advise a parent in termination proceedings that she is entitled to have counsel appointed if she can show that she is indigent. The Court found that the statute‘s emphasis on the parent requesting counsel does not mean that there wasn‘t first a necessity to advise the parent of that right.
Reservation of Rights on Appeal
The adoptive parents argued that the mother hadn‘t preserved her right to appeal. In other words, she had not objected to the lack of counsel. In light of the Court‘s findings, this argument makes little sense.
After all, if she had known of her right to counsel as an indigent, she would have asked for an attorney. How is it that she was to have knowledge of the obligation to object when she had no knowledge of the right to begin with? In any event, the Court explained that fundamental error need not be preserved at the trial court.
The Court reasoned that, because a parent has a fundamental interest in the care and custody of her child, any proceeding that seeks to terminate her parental rights “must be conducted with scrupulous fairness.” Since the district court didn‘t advise the mother of her right to counsel if she could prove indigence, the Court decided that the mistake rose to the level of a fundamental error necessitating reversal.
In conclusion, the Court of Appeals decided that, in a proceeding that seeks to terminate parental rights, the district court must advise the parent that she or he has the right to have counsel appointed if they can prove indigence.
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