Thursday, April 14, 2011

Right to Counsel in Child Welfare Case is Not a Constitutional Right

State in Re: J.R.G.F., R.F and R. G. v. B.A.F. and T.F. 2011 UT App 97 (Utah Court of Appeals, March 24, 2011).
The trial court terminated Mother’s and Father’s parental rights.  Mother and Father appealed and claimed that they were not informed of their statutory right to counsel prior to trial.  The court also denied their request for counsel mid-way through trial. 
The Court of Appeals found that even if what Mother and Father claimed was true, they must show that the denial of counsel prejudiced their case.  The statutory right to counsel under the child welfare act is different than a constitutional right to counsel.  With a statutory right to counsel, there is no presumption of prejudice when counsel has been denied.  To demonstrate prejudice the party must show a reasonable likelihood of a different outcome if the error had not been made.  Mother and Father failed to meet the burden because of the substantial evidence against them, including: both parents had lengthy criminal histories; both had failed to pay child support; both failed to consistently visit the child.  Conversely the adoptive placement provided a stable loving home, and the individuals were the only consistent parental figures in the child’s life.

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