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

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings RHODE ISLAND 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: ; i

2 RHODE ISLAND Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 2 1. SHELTER... 2 Federal Statutes and Court Decisions Interpreting Statutes SUSTENANCE... 2 Federal Statutes and Court Decisions Interpreting Statutes 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 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 D. Sex Offender Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 Federal Court Decisions Addressing Constitutional Due Process or Equal Protection... 4 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 5 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings CHILD CUSTODY... 6 A. Appointment of Counsel for Parent State-Initiated Proceedings... 6 State Statutes and Court Decisions Interpreting Statutes... 6 Federal Statutes and Court Decisions Interpreting Statutes... 7 State Court Rules and Court Decisions Interpreting Court Rules... 7 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 8 B. Appointment of Counsel for Parent Privately Initiated Proceedings... 8 State Statutes and Court Decisions Interpreting Statutes... 8 State Court Rules and Court Decisions Interpreting Court Rules... 9 Federal Statutes and Court Decisions Interpreting Statutes... 9 C. Appointment of Counsel for Child State-Initiated Proceedings... 9 Federal Statutes and Court Decisions Interpreting Statutes... 9 D. Appointment of Counsel for Child Privately Initiated Proceedings MISCELLANEOUS A. Civil Contempt Proceedings B. Paternity Proceedings C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion D. Marriage Dissolution/Divorce Proceedings State Statutes and Court Decisions Interpreting Statutes E. Proceedings Involving Illegal Transport of Explosives State Statutes and Court Decisions Interpreting Statutes Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes ii

3 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 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

4 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER 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. 3613(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... appoint an attorney for such person[.] 3613(b)(1). 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 Sys. Inc. v. Donnelly, 494 U.S. 820, (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. Circuit 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 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) (citations omitted). 2

5 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 Rhode Island law requires the probate court to provide an attorney for incapacitated individuals undergoing guardianship proceedings if the respondent contests the petition in some way. R.I. Gen. Laws (d). Additionally, the court shall appoint legal counsel if the respondent requests counsel, or the guardian ad litem determines it is in the respondent s best interests (e). For the guardianship removal proceedings, however, (a) states only that [t]he ward may retain counsel for this purpose. C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes R.I. Gen. Laws (d)(2) specifies that in a proceeding to certify someone to a mental health facility, [i]f the person is unable to afford counsel, the court forthwith shall appoint the mental health advocate for him or her. Rhode Island law provides a right to counsel for court-certified alleged narcotics addicts who appear before a family or district court without counsel and are financially unable to engage counsel (4). In these cases, the court is required to notify the person of their right to counsel. Id. D. Sex Offender Proceedings State Statutes and Court Decisions Interpreting Statutes R.I. Gen. Laws (3) and (3) state that an indigent sex offender objecting to a community notification requirement has the right to appointed counsel. In State v. Leon, the court noted that the statutory scheme in Rhode Island had been amended so as to have first level review occur with a magistrate of a Superior Court, after which the magistrate s decision could be appealed to a Superior Court judge, but that the right to counsel provisions 3

6 had not been updated to address whether the right to counsel extended to this second appeal. No. PM , 2013 WL , at *2 (R.I. Super. Mar. 12, 2013). The court then noted that [s]ince and are unclear about the duration of a sexual offender s right to counsel, the rule of lenity would dictate that be interpreted in Mr. Leon s favor to provide him with appointed counsel for his appeal to this Court. Id. at *3. In DiCarlo v. State, the court again held that the statutory right to counsel extended to appeals to the Superior Court judge, and commented that this statutory construction ruling was consistent with an equal protection analysis. No. PM , 2014 WL , at *5-*6 (R.I. Super. Mar. 4, 2014). The court added that leaving it to the Drug Court Magistrate to make a final determination concerning the right to counsel on appeal, and thereby forcing a litigant to proceed pro se, would render his or her opportunity to be heard meaningless. Id. at *6. Federal Court Decisions Addressing Constitutional Due Process or Equal Protection In Sarzen v. Gaughan, the First Circuit considered whether there is a federal due process right to counsel for proceedings relating to sexually dangerous persons F.2d 1076, (1st Cir. 1973). The court first held that the right to counsel did not attach for the temporary 60-day commitment for examination and diagnosis, stating: While counsel might be helpful, especially in the case of disturbed or badly educated inmates, we cannot say that counsel is constitutionally mandated for this purpose prior to the observational commitment of one serving sentence for a sex crime, provided there is a careful and conscientious effort to check out the historical data with the inmate and to see that it is accurate and complete. Id. at 1079, 1085 (footnote omitted). Additionally, the court reasoned that early on, the psychiatrist s role is to be relatively open and professionally detached, and that [b]efore the psychiatrists have rendered an adverse report, we are not persuaded that their role is so greatly at variance with the interests of the inmate as to require the state to assume the burden of appointing counsel for each person being examined or about to be examined. Id. at However, once the psychiatrist filed a report finding the person to be sexually dangerous, the psychiatrists role has changed. They have, in effect, become prosecutors; their benevolence has been compromised,... the inmate needs independent assistance, including that of counsel. Id. at 1086 (internal citations and quotations omitted). The court added that appointing counsel at the final commitment hearing was insufficient. Id. Notably, the court commented that: 1 Although the Sarzen case evaluated Massachusetts law, its analysis and conclusions were based on federal due process, and as such would be binding on other jurisdictions within the First Circuit. At present, it does not appear that Rhode Island has a sex offender commitment statute, but Sarzen is included here should one be enacted in the future. 4

7 Although the full panoply of criminal due process is not necessarily applicable to c. 123A proceedings,... we follow the Supreme Court s directive in In re Gault... not to allow the civil label to deflect us from the fundamental interest at stake. Id. at 1085 n.15 (citations omitted). State Court Decisions Addressing Constitutional Due Process or Equal Protection In State v. Leon, the court addressed whether there is a constitutional right to counsel for second tier review of sex offender classifications. No. PM , 2013 WL (R.I. Super. Mar. 12, 2013). The court cited to Turner v. Rogers for the proposition that the civilcriminal distinction is not dispositive, and a state may not deny an indigent litigant counsel by styling a proceeding as civil, but also that [u]nlike a criminal defendant s right to counsel under the Sixth Amendment,... a right to appointed counsel under the Due Process and Equal Protection clauses of the Fourteenth Amendment is not categorical or automatic. Id. at *3. The court then conducted a due process analysis and noted that while there is a presumption against appointing counsel where physical liberty is not at stake: the requirements of et seq. may subject offenders to a wide range of serious consequences, including exposure to physical or verbal harassment, police surveillance, ostracism, loss of employment and associational opportunities, possible lifetime registration requirements and felony prosecution if they fail to comply with those requirements, and restrictions on where they may reside. Id. at *5 (citing State v. Germane, 971 A.2d 555, 578 (R.I. 2009)). The court then concluded: Once a state provides a right to an appeal, due process and equal protection prohibit it from creating arbitrary or unreasoned distinctions that may effectively deprive indigents of that right when a protected liberty interest is at stake. Id. at *8. The Leon court relied on some facts specific to Mr. Leon s case (such as the magistrate sua sponte raising the tier classification), and in a subsequent case, the court referred to Leon as a case that held there is no per se right to an attorney on appeal of a Drug Court Magistrate s decision affirming or denying the Board s classification. DiCarlo v. State, No. PM , 2014 WL , at *4 (R.I. Super. Mar. 4, 2014). However, after DiCarlo affirmed Leon s construction of the statutory scheme to require appointment of counsel for this appeal, it added that: even if (3) could not be harmonized with to include the right to appointed counsel upon appeal from the Drug Court Magistrate, which it can, providing an indigent petitioner with counsel in conjunction with the Superior Court review would comport with the guarantees of due process and 5

8 Id. at *7. equal protection. Finally, the mandatory appointment of counsel would help to promote judicial efficiency and economy by expediting the appeals process. E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving involuntary quarantine, inoculation, or sterilization. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Upon the filing of an ex parte petition alleging abuse, R.I. Gen. Laws (b)(4) (entitled Human Services Abused and Neglected Children Family court proceedings ) specifies that: A hearing on the petition shall be held within seven (7) days from the filing thereof, for the court to:... Appoint an attorney to represent the parent or parents or any other person having care of the child alleged to have abused or neglected a child when the parent or custodian is unable to afford representation, as determined by the court. R.I. R. Juv. P. 15(c)(4) echoes the same language. Additionally, (entitled Delinquent and Dependent Children Proceedings in Family Court Services of public defender ) specifies that [p]rior to the commencement of any hearing, the justice shall advise the parent or guardian of any child, or the adult involved, as the case may be, that if he or she is financially unable to engage counsel, he or she is entitled to the services of the public defender (6) defines dependent as used in this particular title as covering: any child who requires the protection and assistance of the court when his or her physical or mental health or welfare is harmed or threatened with harm due to the inability of the parent or guardian, through no fault of the parent or guardian, to provide the child with a minimum degree of care or proper supervision because of: (i) The death or illness of a parent; or (ii) The special medical, educational, or social service needs of the child which the parent is unable to provide. 6

9 While this sounds like an absolute right to counsel for the parent, (c) (which is entitled Right to representation in court proceedings ) specifies that [i]f the parent or other person responsible for the child s care is financially unable to engage counsel as determined by the court, the court may, at the request of that person, and in its discretion, appoint the public defender, or other council [sic], to represent the person. (emphasis added). This provision creates a question as to whether (b) simply requires the court to apply the discretion in or alternatively provides an absolute right to counsel only for the initial ex parte hearing. Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 2 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 [of the Interior] 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 [25 U.S.C. ] U.S.C. 1912(b). State Court Rules and Court Decisions Interpreting Court Rules R.I. R. Juv. P. 15(c)(4) echoes the language of R.I. Gen. Laws (b)(4), discussed supra, regarding the appointment of counsel for a parent or custodian unable to afford representation in a hearing on an ex parte petition alleging abuse. R.I. R. Juv. P. 18(c)(4) specifies that upon a filing of a petition for termination of parental rights, [a] preliminary hearing shall be held on said petition for the court to:... Appoint an attorney to represent the parent(s) and any person having such care or custody of such child when said parent(s) or custodian are unable to afford such representation[.] While Rule 2 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) contemplates that state law may not provide for appointment of counsel. Additionally, subsection (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. 7

10 18(c)(4) might have the same ambiguity problem as discussed supra regarding (b)(4) (i.e., whether there is an absolute right to appointed counsel or only a discretionary power to appoint), there is no statutory provision that seemingly limits the right to counsel in termination proceedings to the judge s discretion. Furthermore, in In re Bryce T., the Rhode Island Supreme Court cited to Lassiter v. Dep t of Soc. Servs. and noted that: Despite the lack of a constitutional mandate, Rule 18(c) of the Family Court Rules of Juvenile Proceedings provides that [a] preliminary hearing shall be held on [a petition for involuntary termination of parental rights] for the court to * * * (4) Appoint an attorney to represent the parent(s) and any person having such care or custody of such child when said parent(s) or custodian [is] unable to afford such representation. 764 A.2d 718, 721 (R.I. 2001) (per curiam) (citing 452 U.S. 18, 31 (1981)). The court s phrasing makes it appear that it viewed the right to counsel as absolute, not discretionary. State Court Decisions Addressing Constitutional Due Process or Equal Protection In the parental rights termination context, the Rhode Island Supreme Court has declined to invoke due process to extend the right to counsel beyond the contours defined by statute. See In re Ginger G., 775 A.2d 255, 258 (R.I. 2001) (per curiam); In re Ariel S., 765 A.2d 846, 848 (R.I. 2001) (per curiam) (respondent s claim that his civil rights were violated by court s failure to appoint counsel at abuse/neglect stage of a parental rights proceeding was of no moment to appeal because he was given appointed counsel during termination hearing, as required by Rule 18). In In re Bryce T., a mother who had discharged her appointed counsel appealed the termination of her parental rights on the grounds that the court should have provided substitute counsel. 764 A.2d 718, (R.I. 2001) (per curiam). Finding that neither Rule 18 nor federal due process required the court to appoint substitute counsel, the court expressed approval of the United States Supreme Court s holding in Lassiter v. Dep t of Soc. Servs. that the Constitution does not require appointment of counsel in every [termination proceeding]. Id. at 721 (citing 452 U.S. 18, 31 (1981)). However, the court did not mention the state constitution. 764 A.2d at 721. See also In re Amber P., 877 A.2d 608, 614 (R.I. 2005) (per curiam) (father proceeding in a termination proceeding needed to appear pro se because he had three times discharged his previous court-appointed counsel). B. Appointment of Counsel for Parent Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes R.I. Gen. Laws (entitled Delinquent and Dependent Children Proceedings in Family Court Services of public defender ) states: Prior to the commencement of any 8

11 hearing, the justice shall advise the parent... that if he or she is financially unable to engage counsel, he or she is entitled to the services of the public defender. This provision is not selflimiting to Title 14 proceedings, so it is possible it applies to Title 15 proceedings as well. State Court Rules and Court Decisions Interpreting Court Rules R.I. R. Juv. P. 18(c)(4) provides for appointment of counsel in contested termination of parental rights proceedings when the parent or custodian is unable to afford representation, and it appears it applies to the adoption statute since adoptions are the way that even the state terminates parental rights. Federal Statutes and Court Decisions Interpreting Statutes In Pacheco v. Bedford, the court weighed whether it would appoint counsel under the federal Americans with Disability Act s (ADA) discretionary appointment provision. 787 A.2d 1210, 1212 (R.I. 2002) (per curiam). The case involved an incarcerated father who sought contempt against the mother for refusing to let their daughter visit him, and the mother countersued to terminate his parental rights. Id. The defendant argued that he was mentally disabled and unable to represent himself in his case. Id. Accordingly, he claimed that he was entitled to court-appointed counsel pursuant to the ADA. Id. The court noted that: In exercising [the] discretion [under the ADA], the trial justice should consider the following factors: 1. Whether the complainant has the financial ability to retain counsel; 2. Whether the complainant has made a diligent effort to retain counsel; 3. Whether the complainant has a meritorious claim; and 4. Whether the complainant is capable of representing himself or herself. Id. at (citing Tyson v. Pitt Cnty. Gov t, 919 F. Supp. 205, 207 (E.D.N.C. 1996)) (internal citations and quotations omitted). The court found that the defendant had not made an effort to retain counsel and that a previous judge had found that the defendant speak[s] intelligently. Id. at Therefore, the court denied the defendant s motion for courtappointed counsel. Id. C. Appointment of Counsel for Child State-Initiated Proceedings Federal Statutes and Court Decisions Interpreting Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state 9

12 court, 3 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 [of the Interior] 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 [25 U.S.C. ] 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... 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... 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)(B)(xiii). D. Appointment of Counsel for Child Privately Initiated Proceedings R.I. Gen. Laws (c)(1) specifies that in divorce proceedings, [t]he court may, if in its discretion it deems it necessary or advisable, appoint an attorney or a guardian ad litem to 3 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) contemplates that state law may not provide for appointment of counsel. Additionally, subsection (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. 10

13 represent the interest of a minor or dependent child with respect to his or her... custody [] and visitation. The statute provides criteria the judge should use in deciding whether to make such an appointment, such as: Id. the extent to which a guardian ad litem may assist in providing information concerning the best interest of the child; the age of the child; the wishes of the parents as well as their financial resources; the nature of the proceeding including the level of contentiousness, allegations of child abuse or domestic violence and the risk of harm to the child if a guardian is not appointed; or conflicts of interest between the child and parents or siblings[.] 5. MISCELLANEOUS A. Civil Contempt Proceedings No law could be located regarding the appointment of counsel for indigent civil litigants in civil contempt proceedings. B. Paternity Proceedings No law could be located regarding the appointment of counsel for indigent litigants in paternity proceedings. C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving judicial bypass of parental consent for a minor to obtain an abortion. However, this jurisdiction might be one that does not require parental consent. D. Marriage Dissolution/Divorce Proceedings State Statutes and Court Decisions Interpreting Statutes R.I. Gen. Laws (c)(1) specifies that in divorce proceedings, [t]he court may, if in its discretion it deems it necessary or advisable, appoint an attorney or a guardian ad litem to represent the interest of a minor or dependent child with respect to his or her support, custody, and visitation. The statute provides criteria the judge should use in deciding whether to make such an appointment, such as: 11

14 the extent to which a guardian ad litem may assist in providing information concerning the best interest of the child; the age of the child; the wishes of the parents as well as their financial resources; the nature of the proceeding including the level of contentiousness, allegations of child abuse or domestic violence and the risk of harm to the child if a guardian is not appointed; or conflicts of interest between the child and parents or siblings[.] Id. E. Proceedings Involving Illegal Transport of Explosives State Statutes and Court Decisions Interpreting Statutes If a vehicle, vessel, or aircraft is subject to seizure or forfeiture on the grounds that it is intentionally used by its owner to transport explosives illegally, the court must appoint counsel to represent any owner who is either out of state or unknown. R.I. Gen. Laws (c). 12

15 Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes As part of the federal Servicemembers Civil Relief Act (SCRA), which applies to each state, 4 50 U.S.C applies to all civil proceedings (including custody) 5 and provides: 3931(b)(2). 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. Additionally, 3932, which also applies to all civil proceedings (including custody), 6 specifies that a service member previously granted a stay may apply for an additional stay based on a continuing inability to appear, while subsection (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 U.S.C. 3912(a)(2) states: This chapter applies to... each of the States, including the political subdivisions thereof[.] 5 Subsection 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. 6 Section 3932 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. 3932(a). 13