AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings ARKANSAS

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings ARKANSAS Copyright 2017 American Bar Association All rights reserved. American Bar Association Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: The materials herein may be reproduced, in whole or in part, provided that such use is for informational, noncommercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend Copyright 2017 American Bar Association. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; ii

2 ARKANSAS Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 2 1. SHELTER... 2 State Statutes and Court Decisions Interpreting Statutes... 2 Federal Statutes and Court Decisions Interpreting Statutes SUSTENANCE... 2 Federal Statutes and Court Decisions Interpreting Statutes... 2 State Court Decisions Addressing Court s Inherent Authority SAFETY AND/OR HEALTH... 3 A. Domestic Violence Protection Order Proceedings... 3 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 4 State Court Decisions Addressing Court s Inherent Authority... 4 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings... 4 State Statutes and Court Decisions Interpreting Statutes... 4 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 5 D. Sex Offender Proceedings... 5 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings CHILD CUSTODY... 5 A. Appointment of Counsel for Parent State-Initiated Proceedings... 5 State Statutes and Court Decisions Interpreting Statutes... 5 Federal Statutes and Court Decisions Interpreting Statutes... 9 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 9 State Court Decisions Addressing Court s Inherent Authority B. Appointment of Counsel for Parent Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Constitutional Due Process or Equal Protection State Court Decisions Addressing Court s Inherent Authority C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Federal Statutes and Court Decisions Interpreting Statutes D. Appointment of Counsel for Child Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Constitutional Due Process or Equal Protection MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes B. Paternity Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion ii

3 State Statutes and Court Decisions Interpreting Statutes D. Proceedings Involving Claims by and Against Prisoners State Court Rules and Court Decisions Interpreting Court Rules State Court Decisions Addressing Court s Inherent Authority E. Juvenile Delinquency, Status Offenses, or Child in Need of Services Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Court s Inherent Authority i

4 Preface Important Information to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, at the Directory s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize information within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warranties concerning the information contained therein, which has been updated to reflect the law through early The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether counsel for a child means a clientdirected attorney or a best interests attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research did not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports. The Directory attempts to identify as unpublished any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases. Acknowledgments This Directory was a multi-year project of the ABA s Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National Coalition for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory s reports. The Acknowledgments, at the Directory s home page, details additional specific contributions of the many individuals involved in this project. 1

5 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER State Statutes and Court Decisions Interpreting Statutes Arkansas statutorily provides counsel as a matter of discretion to either party in proceedings alleging discrimination in housing matters for either party involved. Ark. Code Ann The provision of counsel under this statute is limited based on a determination that the party petitioning for counsel is in fact indigent as proscribed by other civil right to counsel statutes. There are no cases citing or discussing the application of this law, so it is unclear to what extent it has been applied in housing discrimination proceedings. Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that [a]n aggrieved person may commence a civil action in an appropriate United States district court or State court. 42 U.S.C (a)(1)(a). Further, [u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may-- (1) appoint an attorney for such person. 42 U.S.C. 3613(b). 2. SUSTENANCE Federal Statutes and Court Decisions Interpreting Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that [u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant. 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed: Title VII's provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII's remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential 2

6 for a plaintiff to fulfill the role of a private attorney general, vindicating a policy of the highest priority. Once the plaintiff has triggered the attorney appointment provision, courts must give serious consideration to the plaintiff's request such discretionary choices are not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound legal principles. Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition. 737 F.2d 1173, (D.C. Cir. 1984). State Court Decisions Addressing Court s Inherent Authority No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving sustenance issues. 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings No law could be located regarding the appointment of counsel for indigent litigants in domestic violence protection order proceedings. B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Statutes and Court Decisions Interpreting Statutes Ark. Code Ann states: The public defender in each judicial district shall have the following duties: (1)(A) To defend indigents within the district as determined by the circuit, municipal, or juvenile courts in the district in all: (i) Felony, misdemeanor, juvenile, guardianship, and mental health cases. This suggests that there might be a right to counsel in all cases involving guardianship, as the statute refers to the public defender providing representation in all such cases. However, no other statute could be located that provides this right more clearly. Additionally, Ark. Code Ann provides for a right to appointed counsel in proceedings under the Adult Maltreatment Custody Act to commit custody of a mistreated person to the state, and Adams v. Arkansas Department of Health and Human Services, 375 Ark. 402, 405, 408 (Ark. 2009), held that the individual subject to such custody proceedings has a right to counsel on appeal. See also Ark. Code Ann (d) ( The court shall immediately appoint the Arkansas Public Defender Commission to represent the maltreated adult if: (1) There is reasonable cause to believe the maltreated adult is indigent; or (2) The 3

7 maltreated adult's liberty interest is in jeopardy and the financial condition of the maltreated adult is undetermined. ) State Court Decisions Addressing Constitutional Due Process or Equal Protection In Honor v. Yamuchi, 820 S.W.2d 267, 269 (Ark. 1991), the court held that those facing an involuntary assumption of custody by the state due to maltreatment (i.e., adult protective proceedings) are constitutionally entitled to counsel. 1 The court appeared to deal with the state and federal constitutions concurrently, Id. at 269, and relied on federal court jurisprudence as well as Lassiter v. Department of Social Services, 452 U.S. 18 (1981), for the holding. State Court Decisions Addressing Court s Inherent Authority In Kuelbs v. Hill, 379 S.W.3d 47 (Ark. App. 2010), the Arkansas Supreme Court approved the trial court s inherent authority to appoint counsel in a guardianship case in order to command an orderly, efficient, and effective administration of justice. C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes Ark. Code Ann provides for court-appointed counsel in commitment proceedings related to mental illness and requires the court to appoint counsel at the beginning of any such proceeding ( counsel shall be appointed immediately upon filing of the original petition ). The Arkansas legislature has provided for funding for this counsel, recognizing that where competency is at issue, such persons are unable to adequately represent themselves and the possible loss of liberty requires additional protections. Ark. Code Ann Unlike in termination proceedings, this right is generally not waivable because an individual facing a proceeding questioning their mental health is unable to at the same time knowingly and voluntarily waive their rights. Honor v. Yamuchi, 820 S.W.2d 267, 271 (Ark. 1991). Additionally, the court applies the standard established by the U.S. Supreme Court in Anders v. California, 386 U.S. 738 (1967) in appeals from commitment proceedings; requiring the attorney to show that no genuinely appealable issue exists before permitting him to withdraw as counsel. Adams v. Arkansas Department of Health and Human Services, 375 Ark. 402, 405, 408 (Ark. 2009) 1 This case preceded the passage of Ark. Code Ann , which provides counsel in cases brought under the Adult Maltreatment Custody Act. 2 Note that A.C.A specifies: The public defender in each judicial district shall have the following duties: (1)(A) To defend indigents within the district as determined by the circuit, municipal, or juvenile courts in the district in all: (i) Felony, misdemeanor, juvenile, guardianship, and mental health cases.... 4

8 (adding that it would "defy logic" to deny counsel on appeal to "endangered" adults subject to long-term custody orders.). Ark. Code Ann specifies that in hearings regarding court-ordered outpatient or inpatient treatment, The court may appoint as a temporary guardian or conservator pursuant to subsection H of this section a suitable person or the public fiduciary if there is no person qualified and willing to act in that capacity. The court shall issue an order for an investigation as prescribed pursuant to subsection G of this section and, unless the patient is represented by independent counsel, the court shall appoint an attorney to represent the patient in further proceedings regarding the appointment of a guardian or conservator. State Court Decisions Addressing Constitutional Due Process or Equal Protection In Matter of Evatt, 291 Ark. 153 (1987), the Supreme Court of Arkansas held that no due process (not even notice) is required prior to an emergency commitment, but that once a person is committed, the state must provide procedural safeguards within a very short period of time, such as a hearing. It is unclear whether Evatt required appointed counsel for such hearings; the court approvingly noted that the non-emergency guardianship statute in place at the time (which has since been repealed) provided "a right to be represented by counsel", which may or may not have meant appointed counsel. Id. at 157. D. Sex Offender Proceedings No law could be located regarding the appointment of counsel for indigent civil litigants in sex offender proceedings. However, this jurisdiction might not have a mechanism for confining sexually dangerous/violent persons. E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving quarantine, inoculation, or sterilization. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Ark. Code Ann (h) states: (1)(A) All parents and custodians have a right to counsel in all dependencyneglect proceedings. 5

9 (B) In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian. (C) (i) Parents and custodians shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to counsel and the right to appointed counsel, if eligible. (ii) As required under , a circuit court shall appoint counsel in an ex parte emergency order and shall determine eligibility at the commencement of the probable cause hearing. (D) All parents shall have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent. (E) In a dependency-neglect proceeding naming a minor parent as a defendant, the court shall appoint a qualified parent counsel for the minor parent. (2) If at the permanency planning hearing or at any time the court establishes the goal of adoption and counsel has not yet been appointed for a parent, the court shall appoint counsel to represent the parent as provided by subdivision (h)(1)(d) of this section. (3) Putative parents do not have a right to appointed counsel in dependencyneglect proceedings, except for termination of parental rights proceedings, only if the court finds on the record that: (A) The putative parent is indigent; (B) The putative parent has established significant contacts with the juvenile so that putative rights attach; (C) Due process requires appointment of counsel for a full and fair hearing for the putative parent in the termination hearing; and (D) The putative parent requested counsel. (4)(A)(i) A putative parent has the burden to prove significant contacts with the child so that putative rights attach. (ii) The putative parent shall request appointed counsel for a termination of parental rights hearing if the goal of the case changes to adoption with a termination of parental rights petition to be filed. (B) The court shall make the findings required in subdivision (h)(3) of this section to determine whether a putative parent is entitled to appointed counsel at the termination hearing. (C) 6

10 (i) If the court determines that the putative parent is entitled to appointed counsel under subdivision (h)(3) of this section, the termination petition shall include the putative parent. (ii) The court shall appoint counsel subject to subdivision (h)(3) of this section for the putative parent at any time the court establishes adoption as the case goal with a termination of parental rights petition to be filed. (D) If the putative parent, after notice by the department, has not made an attempt to establish significant contacts with his or her child or the court determines that the putative parent has not established significant contacts, only legal parents shall be included in the termination petition and no further notice is required of the putative parent. (5) (A) The court shall order financially able parents or custodians to pay all or part of reasonable attorney's fees and expenses for court-appointed representation after review by the court of an affidavit of financial means completed and verified by the parent or custodian and a determination by the court of an ability to pay. (B) (i) All moneys collected by the clerk under this subsection shall be retained by the clerk and deposited into a special fund to be known as the "Juvenile Court Representation Fund". (ii) The court may direct that money from the fund be used in providing counsel for indigent parents or custodians at the trial level in dependency-neglect proceedings. (iii) Upon a determination of indigency and a finding by the court that the fund does not have sufficient funds to pay reasonable attorney's fees and expenses incurred at the trial court level and state funds have been exhausted, the court may order the county to pay these reasonable fees and expenses until the state provides funding for counsel. (6) (A) Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client. (B) When the first appearance before the court is an emergency hearing to remove custody under , parents shall be notified of the right to appointed counsel if indigent in the emergency ex parte order. This right to counsel provision recognizes the parallels between the potential loss of liberty at stake in a criminal proceeding and the potential loss of a child in a termination proceeding. 7

11 Osborne v. Arkansas Department of Human Services, 252 S.W.3d 138, 143 (Ark. Ct. App. 2007). 3 In order for counsel to withdraw on appeal from a termination proceeding, the attorney must meet the standard established by the U.S. Supreme Court in Anders v. California, 386 U.S. 738 (1967) and show that no genuine grounds for appeal exist. Linker-Flores v. Arkansas Department of Human Services, 194 S.W.3d 739, (Ark. 2004) (extending right to counsel in termination cases to appellate stage). However, unlike the right to counsel in criminal cases, deprivation of the statutory right to counsel will not be reversed unless the petitioner on appeal can show that the deprivation of counsel was harmful. Briscoe v. State, 912 S.W.2d 425, 427 (Ark. 1996) (although party did not have counsel at prior review hearings, and should have been appointed counsel pursuant to statute, no prejudice because she was represented at final hearing and all evidence reconsidered at final hearing). In Jefferson v. Arkansas Department of Human Services, 158 S.W.3d 129, 136 (Ark. 2005), the court noted appellant s alleged waiver of counsel at a dependency-neglect hearing (without examining the legitimacy of that waiver), but observed that her appeal of the dependency adjudication was not timely, and therefore the court could not fully address any errors (including the alleged denial of counsel). However, it stated that it would determine whether the failure to provide counsel to appellant during the adjudication proceeding permeated or tainted the remainder of appellant's case so as to deprive appellant of fundamental fairness in subsequent proceedings. It then concluded that the lack of counsel did not rise to this level because the appellant had been appointed counsel for the remainder of the proceedings after the adjudication phase. The court next stated: [A]lthough the issue raised by appellant is procedurally barred, we note that it implicates important safeguards imposed with respect to a termination of parentalrights proceeding. For that reason, and out of an abundance of caution, we have decided to give no consideration to the testimony given by appellant at the adjudication 3 In Clark v. Ark. Dep t of Human Servs., 206 S.W.3d 899 (Ark. Ct. App. 2005), the court evaluated petitioner s argument that he should have been provided counsel in a dependency-neglect proceeding at the adjudication stage pursuant to Ark. Code Ann , where he was adjudicated a child-abuser and restrained from entering the home in which his children lived. The court first began examining due process caselaw, discussing the balancing tests articulated in Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981) and Mathews v. Eldridge, 424 U.S. 319 (1976), and noting that it is a case-by-case analysis under federal law, but then rested its decision solely on statutory interpretation by holding that [b]ecause the children have been effectively taken away from him although they remained in the home, appellant has a right to counsel under Ark. Code Ann (h). The court then held that the failure to appoint counsel in this case was not harmless because counsel could have cross-examined the witnesses. The dependency-neglect adjudication is the first step to termination of parental rights. The DHS safety plan bars appellant from the house where his children live. The consequence of the adjudication is that appellant is now a registered child abuser. 8

12 Id. at 136. hearing because such testimony was given without legal representation or a proper waiver thereof. Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 4 provides: In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding.where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 25 U.S.C. 1912(b). State Court Decisions Addressing Constitutional Due Process or Equal Protection In Bearden v. Arkansas Department of Human Services, 42 S.W.3d 397 (Ark. 2001), the parent argued she had a constitutional right to counsel in termination of parental rights (TPR) proceedings (the decision does not specify whether the parent was asserting both a federal and state right). The Arkansas Supreme Court appeared to blend its federal and state constitutional analysis together: Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness. Consequently, according to the [U.S.] Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings. Rather, it is an issue that must be addressed 4 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(a) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 9

13 Id. at on a case-by-case basis. The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. ACA (h) (Supp.1999). However, this is a State-conferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel. It is unclear from this wording whether the Arkansas Supreme Court chose to extend the caseby-case analysis articulated in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), to the state constitution or whether it was only speaking about the U.S. Constitution. On the one hand, by articulating a case-by-case standard, the court appeared to forego the chance to adopt higher standards of protection for the state constitution as it refers to in the first sentence. On the other hand, its consequently, according to the Supreme Court reference makes it appear as if it was still discussing the federal constitution only (since Lassiter is not binding on the state constitutional analysis). In terms of application, the Bearden court assum[ed] without deciding that due process required the appointment of counsel and moved on to the question of whether the parent s waiver satisfied constitutional waiver requirements. In Battishill v. Arkansas Department of Human Services, 82 S.W.3d 178, 179 (Ark. Ct. App. 2002), the court articulated two relevant factors (both of which came from Lassiter) to consider in the case-by-case analysis as to whether fundamental fairness requires the appointment of counsel in a TPR case: 1) whether or not the case presented any specially troublesome points of law, and 2) whether or not the presence of counsel could have made a determinative difference. However, the Battishill court also simultaneously suggested that the State Legislature, by passing Section (h), had definitively transformed the right to counsel in TPR cases into a fundamental constitutional right that obviated the need for a caseby-case due process analysis: The dissent in Lassiter contends that fundamental fairness requires appointment of counsel in every case where a relationship between a parent and a child is being permanently severed. It is our opinion that the Arkansas General Assembly has come to the same conclusion by passing Arkansas Code Annotated section (h) (Supp.2000), which provides for the appointment of counsel in all parental-termination proceedings upon the request of the parent after being advised of the right by the court, thus preempting a fundamental fairness determination by the trial court prior to the due process right attaching. Id. at 180 (emphasis added). 10

14 The Battishill court then analyzed whether the parent at issue had waived her fundamental right to counsel without explicitly engaging in a due process analysis, although it noted in a cursory footnote that [a]s Judge Baker's concurrence points out, the case at bar does present troublesome points of law, and the presence of counsel could have made a determinative difference in the outcome of the case. Id. at 179 n1. State Court Decisions Addressing Court s Inherent Authority In Baker v. Arkansas Department of Human Services., 8 S.W.3d 499 (Ark. 2000), the court recognized its right to provide funding for appointed counsel in at least some civil matters where the legislature had not previously allocated such funding. In Baker, the court first extended Arnold v. Kemp, 306 Ark. 294 (1991) (statute capping fees at $1,000 per capital case was unconstitutional taking because actual costs much higher; court reverses own precedent and ordered fees to be set at just amount) to termination of parental rights proceedings, holding that attorneys could not be required to work for free. In a subsequent decision related to the Baker litigation, the court ruled that the pre-established funding for representation in juvenile delinquency proceedings did not cover payments for attorneys representing indigent parents in termination of parental rights cases. See Baker v. Arkansas Department of Human Services 16 S.W.3d 530, 531 (per curiam). However, despite the lack of predetermined funding for such attorneys, the Arkansas Supreme Court still required the state to pay for attorneys fees in these matters, noting that [the attorney]'s claim is a claim against the state for services performed on behalf of the state; therefore, the state is responsible for payment of her fees and expenses. Id. The court then reversed and remanded for the trial court to award the attorney a judgment against the state. The court in the brief Baker opinion did not clearly express its power to compel expenditure by the state, but noted that where petitioner s services have already been rendered on behalf of the state, the state should be responsible for the payment absent a statute providing for funding. Id. The court did cite to State v. Post, 311 Ark. 510 (1993) (invalidating statute requiring the county to pay for certain indigent defense services; after noting that invalidation leaves us with no provisions requiring the county to pay defense attorney fees of counsel appointed to defend indigent defendants, court ruled obligation would revert back to state). B. Appointment of Counsel for Parent Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes For purely private adoption proceedings counsel is only provided for parents where there is an unlocatable parent, and only for the purposes of serving notice: When the petitioner alleges that any person entitled to notice cannot be located, the court shall appoint an attorney ad litem who shall make a reasonable effort to locate 11

15 and serve notice upon the person entitled to notice; and upon failing to so serve actual notice, the attorney ad litem shall publish a notice of the hearing directed to the person entitled to notice in a newspaper having general circulation in the county one (1) time a week for four (4) weeks, the last publication being at least seven (7) days prior to the hearing. Ark. Code Ann (5)(A); see also Reid v. Frazee, 61 Ark. App. 216 (1998) (once petitioners for stepparent adoption of child without consent of natural father alleged they could not locate father, his interests should have been protected by appointment of attorney ad litem, who had to make reasonable effort to locate father and serve notice). State Court Decisions Addressing Constitutional Due Process or Equal Protection In Lucas v. Jones, 2012 Ark. 365 (2012), the Arkansas Supreme Court was asked to consider whether the due process or equal protection clauses of the Arkansas Constitution require the appointment of counsel in contested adoption cases. The court avoided the issue by holding the mother had not adequately raised the appointment of counsel issue at trial, despite the issue having been at least partially raised in her motion for continuance: Appellant filed a motion for a continuance, not a motion for the appointment of counsel. The stated reason for wanting the delay was so that she could seek counsel, not obtain the appointment of counsel. The motion also stated that she had been advised to request the appointment of an attorney, but the motion does not indicate that she was heeding that advice because she made no explicit request for the court to appoint counsel to represent her. The letter stated that there may be arguments for the appointment of counsel, but the arguments were not specified. We simply cannot construe appellant's motion as placing the circuit court on notice that she was requesting the court to appoint counsel to represent her, much less that the court was obliged to do so on constitutional grounds. Despite appellant's urging to the contrary, pro se litigants are held to the same standards as licensed attorneys with respect to complying with the rules. Id. The mother also argued that under Turner v. Rogers, 131 S.Ct (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not especially complex ), once she requested counsel, the circuit court was obligated as a matter of due process to make specific findings as to her circumstances in determining whether counsel should be appointed. However, the court held that [b]ecause appellant did not request the appointment of counsel, this argument is without merit. 12

16 State Court Decisions Addressing Court s Inherent Authority In Phillips v. Arkansas Department of Human Services, 980 S.W.2d 276 (Ark. Ct. App. 1998), the court examined funding for counsel on appeals in custody cases when such funding was not expressly provided by statute. While the court did not award attorney s fees in this instance, it did recognize the Arkansas Supreme Court s inherent authority to provide appointed counsel in custody appeals at state expense. Id. at 277. C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Ark. Code Ann established a Division of Dependency and Neglect Representation, and it refers to the intent of the General Assembly to provide an appropriate and adequate level of representation to all children in dependency-neglect proceedings as required under federal and state law pursuant to Under (f), children are entitled to a best interests attorney ad litem. While Ark. Stat (f)(1) requires appointment of an attorney ad litem when an abuse/neglect petition is filed, it makes no mention of termination of parental rights (unlike sections relating to the parents' right to counsel), and subsection (f)(2) states, The court may appoint an attorney ad litem to represent the best interest of a juvenile involved in any case before the court and shall consider the juvenile's best interest in determining whether to appoint an attorney ad litem. Federal Statutes and Court Decisions Interpreting Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 5 provides the following with regard to any removal, placement, or termination of parental rights proceeding: The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 5 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(b) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 13

17 25 U.S.C. 1912(b). The federal Child Abuse Prevention and Treatment Act (CAPTA) provides: A State plan submitted under paragraph (1) shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including (B) an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes-- (xiii) provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings. 42 U.S.C. 5106a(b)(2). D. Appointment of Counsel for Child Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes In custody disputes between parents, Ark. Code Ann (e)(2) specifies, [w]hen a circuit judge determines that the appointment of an attorney ad litem would facilitate a case in which custody is an issue and further protect the rights of the child, the circuit judge may appoint a private attorney to represent the child. The rest of the statutory section goes on to specify attorney qualification requirements, provide judges with the power to set fee limits, and dictate that the funds for the attorney come from the Administrative Office of the Courts. State Court Decisions Addressing Constitutional Due Process or Equal Protection In Cox v. Stayton, 619 S.W.2d 617, 619 (Ark. 1981), the court found no due process right to counsel for children in the adoption proceeding before it. The court cited decisions from the Oregon Supreme Court that found no automatic right to counsel in such proceedings, and cited to the Oregon case to hold that counsel need only be appointed when in the judgment of the trial court, it is necessary in the particular case for the protection of the child's interest. Id at 619 (quoting Segrest v. Bradshaw, 275 P. 2d 431, 435 (Or. 1976)). The court concluded that given the ages of the children at the time of the hearing, the strong advocacy of the appellants, their natural grandparents, and of the appellees, their foster parents, we conclude 14

18 that the welfare of the children was adequately protected by the parties to the adoption as to the central issue of the proceeding, i.e., the best interest of the children. Id. 5. MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes Ark. Code Ann states: The public defender in each judicial district shall have the following duties: (1)(A) To defend indigents within the district as determined by the circuit, municipal, or juvenile courts in the district in all: (iii) Contempt proceedings punishable by incarceration. This suggests that there might be a right to counsel in all cases involving civil contempt (which is a contempt proceeding punishable by incarceration) as well as criminal contempt, as the statute refers to the public defender providing representation in all such cases. However, no other statute could be located that provides these rights more clearly, and in fact, Ark. Code Ann (a)(1) states that in guardianship cases, the respondent has the right to be represented by counsel, but it does not mention appointment if indigent. B. Paternity Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection In Burrell v. Arkansas Department of Human Services, 850 S.W. 2d 8, 9 (Ark. Ct. App. 1993), the court held a putative father challenging the results of a paternity test had no constitutional right to counsel because there was no threat to physical liberty. Burrell did not cite Lassiter v. Department of Social Services, 452 U.S. 18 (1981), at all, nor did it undertake any sort of analysis. C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion State Statutes and Court Decisions Interpreting Statutes Ark. Code Ann (b)(1) states that in a judicial proceeding where a minor seeks to obtain a waiver of the requirement of parental consent for an abortion, such a pregnant minor or incompetent woman may participate in proceedings in the court on her own 15

19 behalf. However, the court shall advise her that she has a right to court-appointed counsel and upon her request shall provide her with such counsel. D. Proceedings Involving Claims by and Against Prisoners State Court Rules and Court Decisions Interpreting Court Rules Counsel is statutorily provided on a discretionary basis in post-conviction hearings where the petitioner has made a prima facie showing that he or she is entitled to relief. Ark. Rule Crim. Pro Before petitioners are entitled to counsel, they must show both that they can prove their innocence and that an attorney would be necessary to do so. Loveless v. Agee, 2008 WL (Ark. 2008) (unpublished). This means that the petitioner is required to begin the legal process pro se in a post-conviction proceeding. Cases are routinely rejected for relief based on petitioners inability to satisfactorily present prima facie evidence that they are entitled to relief under the statute. E.g. Vick v. State, 783 S.W.2d 365, 367 (Ark. 1990). One federal court has applied the Arkansas rule to require counsel in all cases where a hearing is granted under the statute. Wainwright v. Norris, 836 F. Supp. 619, 622 (E.D. Ark. 1993). However, the Arkansas Supreme Court has stated clearly that a petitioner must prove the two factors in order to be appointed counsel. See Hardin v. State, 86 S.W.3d 384, 385 (Ark. 2002) (counsel not required at hearing; standard to review failure to appoint is abuse of discretion). Most significantly, jurisprudence repeatedly emphasizes the proposition that Arkansas citizens are not entitled to counsel in civil proceedings. E.g. McClellan v. State, 2005 WL (Ark. 2005). If counsel appointed under this rule petitions to withdraw based on a showing of sufficient cause, and the court grants such a petition, the party is not automatically entitled to a new attorney under the rule. Hammon v. State, 65 S.W.3d 853 (Ark. 2002). In reaching this determination, the Arkansas Supreme Court relied on Ark. R. App. P. Crim. 16, which only permits counsel to withdraw from court-appointed representation in post-conviction proceedings at the discretion of the trial court. While this rule requires the court to appoint new counsel in appeals if the counsel has withdrawn, the court in Hammon held that this portion of the rule applies only to direct appeals and not to post-conviction matters, as they are civil in nature. Id. While this holding appears to severely limit the right to counsel in postconviction proceedings (as after the court has determined a need for counsel, the appointed counsel may be permitted to withdraw and the trial court may then alter its determination concerning the need for counsel), in Hammon the court only permitted one of the three attorneys petitioning to withdraw, and appointed counsel to replace him. Id. It is unclear to what extent the court would rely on earlier determinations that counsel was necessary in choosing whether or not to appoint new counsel after withdrawal of representation in a postconviction proceeding. 16

20 Similar to other civil statutory provisions of counsel, a party may waive his or her right under this rule as long as this waiver is knowing and voluntary, and the petitioner fully understands the consequences of the waiver of this right. In State v. Riggs, 12 S.W.3d 634 (Ark. 2000), the court also required two psychologists to testify that the petitioner was competent and understood the consequences of waiving her statutory counsel during a post-conviction hearing where the party had been sentenced to death. At one time, Ark. R. Civ. P. 17(c) read, [n]o judgment shall be rendered against a prisoner in the penitentiary until after a defense made for him by his attorney, or, if there is none, by a person appointed by the court to defend for him. This provision was borrowed from a superseded statute that was part of the Civil Code of Id. at Addition to Reporter s Notes, 2004 Amendment. However, this provision was repealed in its entirety in State Court Decisions Addressing Court s Inherent Authority In Virgin v. A.L. Lockhart, 702 S.W.2d 9 (Ark. 1986) (per curiam), an inmate sought appointed counsel on appeal after a circuit court denied his petition for a writ of mandamus to compel a reassessment of his parole eligibility status. The Arkansas Supreme Court denied the inmate s motion for appointment of counsel and held that it would appoint counsel on appeal only in those cases where the appellant is able to make a substantial showing that he is entitled to relief and that he cannot proceed without counsel. E. Juvenile Delinquency, Status Offenses, or Child in Need of Services Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection In Gilliam v. State, 808 S.W.2d 738, 740 (Ark. 1991) the court found that there was a requirement to appoint counsel for appeals of a juvenile delinquency ruling. The court in Gilliam examined mostly U.S. Supreme Court jurisprudence, as well as a state statute entitling juveniles to a direct appeal from delinquency proceedings. Id. at 739. Because the U.S. Supreme Court required the appointment of counsel in juvenile proceedings under In Re Gault, 387 U.S. 1 (1967), and the Arkansas statute provides juveniles with the right to an appeal, the court found the need for appointed counsel throughout the appeal. 17

21 Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes The federal Servicemembers Civil Relief Act (SCRA), which applies to each state 6 and to all civil proceedings (including custody), 7 provides: If in an action covered by this section it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember. 50 U.S.C.A. 3931(b)(2). Additionally, 50 App. U.S.C. 3932(d)(1), which also applies to all civil proceedings (including custody), 8 specifies that a service member previously granted a stay may apply for an additional stay based on a continuing inability to appear, while 3932(d)(2) states: If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding. State Court Decisions Addressing Court s Inherent Authority Arkansas courts recognize an inherent authority to identify additional instances where counsel is necessary when not provided by statute. In Virgin v. A.L. Lockhart, 702 S.W.2d 9 (Ark. 1986) (per curiam), discussed supra Part 5.D., the court held that it would appoint counsel in those cases where the appellant is able to make a substantial showing that he is entitled to relief and that he cannot proceed without counsel. See also Kuelbs v. Hill, 379 S.W.3d 47 (Ark. App. 2010) (approving trial court s provision of counsel pursuant to inherent power of the 6 50 App. U.S.C.A. 3912(a) states, This Act [50 USCS 3901] applies to-- (2) each of the States, including the political subdivisions thereof 7 50 App. U.S.C. 3931(a) states, This section applies to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance App. U.S.C. 3932(a) applies to any civil action or proceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an application under this section-- (1) is in military service or is within 90 days after termination of or release from military service; and (2) has received notice of the action or proceeding. 18