HONOLULU – In a case to be heard on Thursday, December 5, a group of public service law organizations wants the Hawai‘i Supreme Court to establish a uniform policy that would guarantee legal assistance for all indigent parents in abuse and neglect proceedings. Currently, access to court-appointed legal counsel for such cases in Hawaii is determined on a case-by-case basis by court officials, even when the parents are underage. This means that an indigent and underage parent may have to navigate the judicial process without an advocate. This is contrary to the practice in nearly all other states, where counsel is appointed for all indigent parents regardless of age.
The Hawaii Supreme Court granted the request of the Legal Aid Society of Hawaii, the Hawaii Appleseed Center for Law and Economic Justice, and the American Civil Liberties Union of Hawaii Foundation to appear as amici curiae (“friends of the court”) and file a brief arguing that Hawaii’s current ad hoc system for appointment of counsel results in constitutional due process violations; instead, the groups argue that the courts must automatically provide court-appointed counsel in abuse and neglect cases, as required in 43 other states and the District of Columbia. The National Coalition for a Civil Right to Counsel provided support for the drafting of the brief.
The 17-page amicus curiae brief can be found at: https://www.hiappleseed.org/sites/default/files/amicus%20brief%20FINAL%20e-version.pdf or https://wp.me/a1HwqT-IX
The case concerns an underage mother and her child; both minors’ identities are shielded by the court, and the child is known only as TM. The family court did not provide TM’s mother with a court-appointed attorney until after TM had been in foster care for 19 months, and the family court subsequently terminated the parental rights of TM’s mother. TM’s mother argued that the state violated her due process rights by terminating her parental rights, because she did not have a fair opportunity to defend herself against the state in the earlier abuse and neglect stages. She appealed the case, and on June 28, 2013, the Hawaii Intermediate Court of Appeals (“ICA”) upheld the ruling of the family court in a 2-1 ruling; Chief Judge Nakamura dissented, stating his belief that the family court abused its discretion in failing to appoint an attorney for TM’s mother earlier in the proceedings.
TM’s mother asked the Hawaii Supreme Court to review the ICA’s opinion. In October, the Legal Aid Society of Hawaii, the Hawaii Appleseed Center for Law and Economic Justice, and the American Civil Liberties Union of Hawaii Foundation submitted a brief in support of the request for Supreme Court review and urged the Court to rule not just on the rights for TM’s underage mother, but for all parents regardless of age. The Court agreed to review the ICA’s decision, and will hear oral argument on Thursday morning.
Victor Geminiani, Executive Director of the Hawaii Appleseed Center for Law and Economic Justice, said: “Expecting a poor, minor parent to somehow pay a lawyer or represent herself in court is not fair or constitutional, and justice is not served by the Hawaii courts’ current, subjective practice. There is a near-nationwide consensus that all indigent parents must be provided with counsel in abuse/neglect proceedings. However, Hawai‘i remains stuck in the small minority of states in which counsel is appointed on a case-by-case basis. We hope to change that.”
Daniel Gluck, Senior Staff Attorney for the ACLU of Hawaii, added: “This year, we celebrate the 50th anniversary of the landmark Supreme Court ruling Gideon v. Wainwright, which established the right to legal counsel for the accused in criminal cases. Yet, right now, there is no uniform standard for appointment of counsel in abuse and neglect proceedings, meaning that judges on different islands may reach different conclusions for substantially similar cases. A parent’s chance for justice should not have to depend on which judge hears the parent’s case. The Hawaii Supreme Court now has an opportunity to set a uniform standard to protect the rights of all parents.”
Legal Aid Society of Hawaii’s Executive Director Nalani Fujimori Kaina said: “The current case-by-case approach creates an impossible job for trial courts and an unacceptably high likelihood of error for Hawaii’s families. These are fundamental rights at stake, and we believe Hawaii can do better.”