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

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings LOUISIANA 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 LOUISIANA 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 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 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 3 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings D. Sex Offender Proceedings... 5 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings CHILD CUSTODY... 5 A. Appointment of Counsel for Parent State Initiated Proceedings Federal Statutes and Court Decisions Interpreting Statutes... 6 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 6 B. Appointment of Counsel for Parent Privately Initiated Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection C. Appointment of Counsel for Child State-Initiated Proceedings Federal Statutes and Court Decisions Interpreting Statutes 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. Juvenile Delinquency, Status Offenses, or Child in Need of Services Proceedings E. Proceedings Involving Claims by or Against Prisoners State Court Decisions Addressing Constitutional Due Process or Equal Protection F. Proceedings Involving Debt ii

3 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 mid 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 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[.] 42 U.S.C. 3613(b)(1). 2. SUSTENANCE A Louisiana statute provides that the court may appoint counsel in a proceeding to have a curator appointed to apply for public assistance for a mentally incompetent person. La. Rev. Stat. Ann. 46:431. In such situations, counsel is entitled to a fee of $10.00 in an uncontested case and $25.00 in a contested case, and the fee must be paid by the person initiating the proceeding. La. Rev. Stat. Ann. 46:432. 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, 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. 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 2

6 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). 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 A Louisiana statute provides that the court may appoint counsel in a proceeding to have a curator appointed to apply for public assistance for a mentally incompetent person. La. Rev. Stat. Ann. 46:431. In such situations, counsel is entitled to a fee of $10.00 in an uncontested case and $25.00 in a contested case, and the fee must be paid by the person initiating the proceeding. 46:432. A person subjected to an interdiction (guardianship) is also entitled to appointed counsel for both the establishment and review proceedings. La. Code Civ. Proc. Ann. art. 4544(A) (for establishment: If the defendant makes no timely appearance through an attorney, the petitioner shall apply for an order appointing an attorney to represent the defendant. Pursuant to such a motion, or on its own motion, the court shall appoint an attorney to represent the defendant. ), 4554 ( Except for good cause, the court shall follow substantially the same procedures that apply to an original petition for interdiction before it modifies or terminates an interdiction judgment. ). State Court Decisions Addressing Constitutional Due Process or Equal Protection In Gore v. Barrow, the court held that a petition to find someone mentally incapacitated (i.e., an interdiction, or guardianship as it would be called in other states) is invalid where the defendant is without counsel and/or where no answer is filed on their behalf. 68 So. 625, 625 (La. 1915). The court did not provide a specific constitutional basis for its holding. See id. For 3

7 other similar cases, see Interdiction of Grevenig, 115 So. 133, 135 (La. 1927) ( In suits for interdiction, where the interdict has been cited and served with the petition, and is not otherwise represented by counsel, it is the duty of the court to appoint an attorney ad hoc to defend the suit. ); Vance v. Ellerbe, 90 So. 735, 740 (La. 1922) ( The court must appoint an attorney to defend the alleged incapacitated person, if one be not otherwise provided; else the judgment of interdiction is without effect. ). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings Under La. Child. Code Ann. art. 809(C): No child shall be admitted... to a public or private mental institution or institution for the mentally ill... unless he has been represented by retained private counsel who represents only the child s interest or by an attorney from the Mental Health Advocacy Service, unless its executive director has determined that its attorneys are unavailable. Any attorney from the Mental Health Advocacy Service so appointed shall continue to represent the child in any proceeding relating to admission, change of status, or discharge from the mental hospital or psychiatric unit. A child may not waive the right to assistance of counsel in proceedings in which it has been recommended to the court that the child be placed in a mental hospital, psychiatric unit, or substance abuse facility, nor in proceedings to modify said dispositions. La. Child. Code Ann. art. 810(D)(1). In any dispositional or postdispositional hearing which may result in the mental health institutionalization of a child who is in the custody of the state, the child shall be entitled to... an attorney appointed by the Mental Health Advocacy Service, unless unavailable as determined by the director. La. Child. Code Ann. art. 607(D). If the court finds that the parents of the child are financially able, it may order the parents to pay some or all of the costs of the child s representation in accordance with Children s Code Articles 320 and 321. La. Child. Code Ann. rt. 607(C). Also, in a judicial commitment proceeding, the court shall appoint counsel for a minor provided by the Mental Health Advocacy Service [i]n the event [the minor] does not select counsel and is unable to pay for counsel or in the event counsel selected by him refuses to represent said minor or is not available for such representation[.] La. Child. Code Ann. art. 1442(A). Similarly, a person who is indigent or otherwise qualified has the right to have counsel appointed by the Mental Health Advocacy Service in a judicial commitment proceeding based on the grounds of mental illness or substance abuse causing such person to be a danger to himself or others or to be gravely disabled. La. Rev. Stat. Ann. 28:54(C). 4

8 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 involuntary quarantine, inoculation, or sterilization. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State Initiated Proceedings The parents of a child who is the subject of a child in need of care proceeding shall be entitled to qualified, independent counsel at the continued custody hearing and at all stages of the proceedings thereafter. La. Child. Code Ann. art. 608(A). Louisiana s statutes also address, in a termination of parental rights proceeding, the right to appointed counsel for the parent at issue. If the court determines that the parent in such a proceeding is indigent, counsel will be made available to the parent. 1 See La. Child. Code Ann. art. 1016(C). This right to counsel may also include a right to appointment of appellate counsel. See State ex rel. D.A.G., 935 So. 2d 216, 218 (La. Ct. App. 2006). The Louisiana legislature has provided that, to the extent funds are appropriated by the legislature for such purposes, Louisiana s Department of Social Services (DSS) shall pay legal fees and approved expenses arising out of the ad hoc representation of children or indigent parents, but not both, and curatorships in child protection proceedings. La. Rev. Stat. Ann. 46:460.21, amended by 2011 La. Acts 77, 1. These payments will be made if legal services corporations and private attorneys are not otherwise paid for their services in child protection proceedings, and only for services rendered in connection with Louisiana Children s Code articles 607 (child s right to counsel in child in need of care proceeding), 608 (parent s right to 1 The court need not necessarily appoint separate attorneys for each parent. See, e.g., State ex rel. T.D. v. R.D., 781 So. 2d 871, 876 (La. Ct. App. 2001) (upholding appointment of single counsel to parents in child-in-need-of-care proceedings where parental rights ultimately terminated); In re WS, 626 So. 2d 408, (La. Ct. App. 1993) (upholding appointment of single counsel to separated parents in reunification proceedings when parents did not have conflicting interests at time they were jointly represented). 5

9 counsel in child in need of care proceeding), (where parent cannot be served and there is a court appointed attorney as curator ad hoc for the parent in child in need of care proceeding), 1016 (parental rights termination proceeding), 1023 (where parent cannot be served and there is a court appointed attorney as curator ad hoc for the parent), 1136 (where parent cannot be served and there is a court appointed attorney as curator ad hoc for the parent in termination proceeding of parental rights of the father), and 1146 (review hearings regarding permanent placement of a child). However, in State ex rel. A.P., the Court of Appeals held that DSS was required to pay both an attorney appointed by the court to represent the child in a child protection proceeding and an attorney appointed to represent the father, despite the requirement in 46: that DSS pay the fees for the attorneys of either the parents or the child, but not both, because: (a) the overriding reason for the requirement to limit [DSS] expenditures for legal representation of indigents to a maximum of two attorneys per case was not thwarted by the payment of the child s attorney plus the attorney for just one of the parents; and (b) [f]ailure to appoint counsel for the child... would have rendered the proceedings fundamentally unfair. 815 So. 2d 115, (La. Ct. App. 2002). Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 3 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 [25 U.S.C. ] U.S.C. 1912(b). State Court Decisions Addressing Constitutional Due Process or Equal Protection 2 Note that La. Child. Code Ann. art. 606 defines child in need of care as including abuse/neglect. 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 (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. 6

10 In In Interest of Howard, the court of appeals in the Second Circuit held that a minimum standard of due process under both the federal and state constitutions required appointed counsel for indigent parents faced with charges of neglect and the possibility of removal of their child from their custody for an indefinite or prolonged period of time[.] 382 So. 2d 194, 200 (La. Ct. App. 1980) (emphasis added). The court considered two factors to determine whether due process required the appointment of counsel for indigent parents in an abuse/neglect proceeding: (i) the nature of the right or interest affected by the proceeding and (ii) the nature of the proceeding itself. Id. at Examining the first factor, the Howard court drew on federal case law and explained that in abuse/neglect proceedings the right of a parent to the custody of the child is at issue, and that the integrity of the family and the parental right to raise children have been recognized as a constitutionally protected fundamental liberty. Id. at 198. Addressing the second factor, the Howard court described that it was settled law that due process requires the furnishing of counsel to indigent defendants threatened with incarceration, and then said that in abuse/neglect proceedings, [t]he potential loss to the parent is grievous, perhaps more so than incarceration and can hardly be said to be less severe. Id. at Referencing a line of juvenile cases where courts looked past the civil label given to such proceedings and found that they were not essentially different from a criminal trial, the Howard court discussed how certain factors justifying appointment of counsel in criminal proceedings are similar to factors present in abuse/neglect proceedings. Id. at 199. Indeed, as the Howard court pointed out, the conduct underlying abuse/neglect proceedings may result in a criminal prosecution. Id. The court then spoke about the imbalance of the power and ability of the state to present its side of the case as opposed to that of the parents and reasoned that the relative power and ability of the antagonists ought to be considered. Id. at The court went on to explain that [t]he contrast between the unrepresented parent, untutored in the law, unskilled in presenting his version of disputed facts, cross-examining witnesses, or working with documentary evidence, and the state, with its fiscal resources, expertise in child custody matters, represented by a competent district attorney, is striking and dramatic. Id. at 199. In its conclusion, the court noted that [n]ecessarily implicit in this holding is that the parents be advised of their right to counsel. Id. at 200. The U.S. Supreme Court s holding in Lassiter v. Department of Social Services, that there is no absolute Fourteenth Amendment right to counsel in termination of parental rights proceedings, changed the landscape in Louisiana. 452 U.S. 18, 25 (1981). In State in Interest of Johnson, the Court of Appeals in the First Circuit relied on Howard as well as a number of U.S. Supreme Court cases (including Lassiter itself) to hold categorically that constitutional due process mandates the appointment of counsel to represent indigent parents in a proceeding where the state seeks to terminate parental rights to a minor child in an abandonment proceeding. 465 So. 2d 134, 138 (La. Ct. App. 1985). However, on appeal, the Louisiana 7

11 Supreme Court appeared to rein in the court of appeals, citing to Lassiter for the proposition that [t]he trial court is required to make a case-by-case determination as to whether failure to furnish counsel to the indigent parents would violate due process. 475 So. 2d 340, 342 (La. 1985). The high court did not state that the appellate court had come to a wrong conclusion, but instead simply implied that the trial court had already conducted a case-by-case analysis. See id. And in State in Interest of Driscoll, a Court of Appeal in the Fourth Circuit disagreed with Howard and held that the trial court did not err in failing to appoint counsel for parents in a hearing on petition to declare a child abused and in need of care. 410 So. 2d 255, (La. Ct. App. 1982). While not explicitly stating it was doing so, the court appeared to adopt a caseby-case analysis and relied upon Lassiter and cases from other jurisdictions. 4 See id. at 258. The Driscoll court made no mention of whether its holding was applicable to the state or federal constitutions. 5 See id. at Some Louisiana appellate courts, however, appear to adhere to the categorical approach established in Howard. See Lay v. McElven, 691 So. 2d 311, 313 & n.10 (La. Ct. App. 1997) (First Circuit) (holding that the fundamental and constitutional right of parents to the custody and control of their children requires the appointment of counsel to indigent parents when the state seeks to remove their child from their home because of alleged abuse and neglect, and citing to Howard); State in Interest of S.N., 573 So. 2d 1178, 1180 (La. Ct. App. 1991) (Fifth Circuit) (noting language in Johnson about using case-by-case approach, but relying on Howard to find that due process requires that counsel be appointed for indigent parents in proceedings brought under La.R.S. 14:403. ). Additionally, while courts addressing only the federal constitution began utilizing the three-factor test from Lassiter (rather than the two-prong test from Howard), 6 other courts began to rely on Lassiter for due process cases without explaining whether they were addressing the state or federal constitution. For instance, in State in Interest of C.V. v. T.V., the Second Circuit, which is the court of appeals circuit that decided Howard, held that parents whose parental rights are terminated due to mental retardation are not entitled to counsel at 4 See also State ex rel. L.M., 57 So. 3d 518, 534 (La. Ct. App. 2011) (finding that juvenile court did not deny due process by failing to appoint counsel for mother in proceedings falling short of child-in-need-of-care proceedings). 5 Notably, the Driscoll court appeared to view the abuse/neglect proceeding as more temporary than had the Howard court, as it noted that the trial court had not granted permanent custody to the State and compared the situation to statutes in other states allowing the state to take custody for a reasonable time[.] 410 So. 2d at 258. In contrast, the court in Howard had noted that [a]t the point where the petition is filed by the district attorney, the abuse/neglect proceeding is, in effect, converted into a child in need of care proceeding governed by the Code of Juvenile Procedure, and it is at this stage that the state ordinarily seeks removal of the child from the custody of the parents for an indefinite or prolonged period of time. 382 So. 2d at See, e.g., In re D.D.D., 961 So. 2d 1216, (La. Ct. App. 2007); In re Rodrigue, 657 So. 2d 648, (La. Ct. App. 1995). 8

12 the initial temporary deprivation hearing, although it did not state which constitution it was addressing (it did note that Howard addressed both) So. 2d 159, (La. Ct. App. 1986). See also In re D.D.D., 961 So. 2d 1216, (La. Ct. App. 2007) (where no statute existed at time for appointed counsel in intrafamily adoption, federal constitution only possible source; court applies 3-factor Lassiter test and denies counsel due to finding minimal risk of error, no showing that counsel would have made difference, no expert witnesses testified, no complex evidentiary issues or points of law, no risk of criminal liability; court adds that K.P.D. s interests, although compelling, are not outweighed by the state s interests to promote the permanent placement of available children into suitable homes... and conclud[e] child custody in a timely manner. ); State in Interest of T.B., 520 So. 2d 1269, 1270 (La. Ct. App. 1988) (holding that Louisiana statute requiring counsel for parents in termination of parental rights cases goes beyond the minimal constitutional guarantee set forth in Lassiter, without addressing how statute compares with minimum due process requirements provided for in state constitution). Another example of the court applying Lassiter and seemingly ignoring the state constitutional questions is In re Rodrigue. There, an incarcerated, indigent father opposed the adoption of his son by the child s maternal grandparents at a time when the state had not yet passed La. Child. Code Ann. art (right to counsel in intrafamily proceedings). 657 So. 2d 648, 649 (La. App. 1995). The father argued that due process and fundamental fairness required the appointment of counsel. Id. at 650. While the court did not specify which constitution it was addressing, it mentioned the father relied upon the Johnson decision, which also was not clear on the exact constitution being interpreted, and distinguished Johnson on the grounds that the State had been the plaintiff in that case. Id. at 650 & n.1. Applying the Lassiter factors, the court acknowledged the father had a cognizable and substantial interest, but found the state s interest in the mental and physical wellbeing of the child was quite significant and at odds with the parent s interest. Id. at (quoting Stanley v. Illinois, 405 U.S. 645, 652 (1972)). The court then noted that the statute governing Louisiana intrafamily adoptions at that time provided uncounseled parents with express protections and precise guarantees that afford the parent clearly identified and protected rights which it implied reduced the risk of erroneous deprivation. Id. at 651. When the court balanced these factors against the presumption against the right to appointed counsel, it found that due process did not require appointment of counsel. Id. In a pre-lassiter case, the Louisiana Supreme Court found no due process right to counsel for a voluntary relinquishment of parental rights. Golz v. Children's Bureau of New 7 The C.V. court noted that Howard had relied on a Florida appellate case (Davis v. Page) that had found an absolute right to counsel at all critical stages of termination proceedings and that had been subsequently vacated by the U.S. Supreme Court after Lassiter. 499 So. 2d at 163. The court in C.V. went on to note that on remand, the Florida Court of Appeals in Davis held that a case-by-case determination applied instead of an absolute right. Id. 9

13 Orleans, Inc., 326 So. 2d 865, 871 (La. 1976) ( The petitioners, of course, had the right to consult legal counsel of their choice at any time during their relationship with the Children s Bureau. The record does not reflect whether or not they did. If they did not do so, as they now allege, the absence of such legal consultation does not make the surrender infirm or unenforceable. See LSA-C.C. Art The petitioners have cited no constitutional authority requiring that parties be represented by legal counsel in the confection of contracts of this type, and we know of none. ). B. Appointment of Counsel for Parent Privately Initiated Proceedings In 2008, parents were given a statutory right to counsel in contested intrafamily adoption proceedings. La. Child. Code Ann. art However, 2010 La. Acts 738, 1-2 repealed art and replaced it with a provision, La. Child. Code Ann. art (C), stating that [w]hen the opposition provides that the parent cannot afford to hire an attorney, the court shall determine whether due process requires the appointment of counsel[.] In In re B.J.C., an appellate court held that the trial court failed to consider whether to appoint counsel for an incarcerated father, even though the father had not specifically indicated to the court that he was indigent: His opposition was made pro se, so obviously at the time of filing his opposition, the biological father was unrepresented by legal counsel. Although the biological father s opposition does not explicitly state that he could not afford an attorney, notably, he was incarcerated at the time he responded pro se. The record does not indicate that the trial court made any attempt to determine whether the biological father was entitled to the appointment of counsel. It would appear that the fact that the biological father made his opposition pro se and he was incarcerated, the trial court had a strong indicator that the biological father was unable to afford an attorney. Considering the seriousness of the matter termination of the biological father s parental rights at the very least, an inquiry should have been made as to whether he needed the appointment of legal counsel. The record does not reflect that the trial court made any such inquiry. That was clearly in error. 163 So. 3d 905, 911 (La. Ct. App. 2015). See also In re T.E.N., 171 So. 3d 1219, (La. Ct. App. 2015) (finding that father properly requested determination of whether he was entitled to appointed counsel, and that [w]hile the trial court mentioned the fact that self-representation could pose some procedural issues, the trial court clearly failed to inquire into [the father s] financial situation and as to whether due process required that [he] be appointed counsel to represent him in this serious matter where termination of his parental rights was at stake ; court also finds father did not waive counsel). 10

14 When a parent voluntarily surrenders the child for adoption, La. Child. Code Ann. art specifies that the surrendering parent and his representative, if applicable, or the child s tutor, as provided in Article 1108, shall be represented at the execution of the act by an attorney at law licensed to practice law in Louisiana; however, the attorney representing such person shall not be the attorney who represents the person who is the prospective adoptive parent, or an attorney who is an associate, partner, shareholder, or employee of the attorney, law firm, or corporation representing the prospective adoptive parent. State Court Decisions Addressing Constitutional Due Process or Equal Protection In F.D. v. Associated Catholic Charities of New Orleans, Inc., the court rejected an equal protection challenge to the lack of counsel for relinquishments in agency adoptions vs. private adoptions, as existed at the time. 480 So.2d 380, (La. Ct. App. 1985). The court stated: Id. at 382. Because we conclude a rational basis exists for the Legislature to treat the requirements for an agency adoption and a private adoption differently, we conclude no constitutional impairment exists based on lack of equal protection. Private adoptions are not clothed with safeguards that exist in a state licensed and regulated agency, and one can reasonably concude [sic] that greater abuse might occur in a private adoption setting than in an agency one. Therefore, more strigent [sic] requirements, as determined by the Legislature in private adoptions, clearly have a rational basis. C. Appointment of Counsel for Child State-Initiated Proceedings In every child in need of care proceeding, the court will appoint independent counsel for the child involved, including a referral to the district public defender, and this right cannot be waived by the child or anyone purporting to act on the child s behalf. See La. Child. Code Ann. art. 607(A)-(B). While the parents of the child may ultimately be ordered to pay some or all of the costs of the child s representation if the court determines that the parents are financially able, other arrangements will be made where the parents are deemed unable to pay the child s representation. See La. Child. Code Ann. art. 607(C). Similarly, the child at issue in a parental rights termination proceeding will be appointed an attorney. See La. Child. Code Ann. art This right to counsel may also include a right to appointment of appellate counsel. See State ex rel. D.A.G., 935 So. 2d 216, 218 (La. App. 2006). 11

15 The Louisiana legislature has provided that, to the extent funds are appropriated by the legislature for such purposes, Louisiana s DSS shall pay legal fees and approved expenses arising out of the ad hoc representation of children or indigent parents, but not both, and curatorships in child protection proceedings. La. Rev. Stat. Ann. 46:460.21, amended by 2011 La. Acts 77, 1. These payments will be made if legal services corporations and private attorneys are not otherwise paid for their services in child protection proceedings, and only for services rendered in connection with Louisiana Children s Code articles 607 (child s right to counsel in child in need of care proceeding), 608 (parent s right to counsel in child in need of care proceeding), (where parent cannot be served and there is a court appointed attorney as curator ad hoc for the parent in child in need of care proceeding), 1016 (parental rights termination proceeding), 1023 (where parent cannot be served and there is a court appointed attorney as curator ad hoc for the parent), 1136 (where parent cannot be served and there is a court appointed attorney as curator ad hoc for the parent in termination proceeding of parental rights of the father), and 1146 (review hearings regarding permanent placement of a child). However, in A.P., the Court of Appeals held that DSS was required to pay both an attorney appointed by the court to represent the child in a child protection proceedings and an attorney appointed to represent the father, despite the requirement in 46: that DSS pay the fees for the attorneys of either the parents or the child, but not both, because: (a) the overriding reason for the requirement to limit [DSS] expenditures for legal representation of indigents to a maximum of two attorneys per case was not thwarted by the payment of the child s attorney plus the attorney for just one of the parents; and (b) [f]ailure to appoint counsel for the child... would have rendered the proceedings fundamentally unfair. 815 So. 2d at 118. Federal Statutes and Court Decisions Interpreting Statutes The ICWA 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 [25 U.S.C. ] U.S.C. 1912(b). The federal Child Abuse Prevention and Treatment Act provides: 8 Note that La. Child. Code Ann. art. 606 defines child in need of care as including abuse/neglect. 12

16 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 La. Child. Code Ann. art (B) provides that in intrafamily adoption proceedings, [u]pon receipt of the opposition, the court shall appoint an attorney to represent the child, subject to the limitations in Article Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the representation of the child shall be taxed as costs of court. Moreover, La. Child. Code Ann. art. 1137(B) states that where a mother seeks to relinquish custody for an adoption and the father objects, then [u]pon receipt of the notice of opposition, the court shall appoint an attorney to represent the child, subject to the limitations set out in Article Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the child s representation shall be taxed as costs of court. In any child custody or visitation proceeding, the court... may appoint an attorney to represent the child if, after a... hearing, the court determines such appointment would be in the best interest of the child. La. Rev. Stat. Ann. 9:345(A). 9 The court shall appoint an attorney to represent the child if, in the... hearing, a prima facie case is presented that a parent or other person caring for the child has sexually, physically, or emotionally abused the child, or knew or should have known that the child was being abused. 9:345(B). The costs of the representation shall be apportioned among the parties as the court deems just, and if the 9 See also La. Civ. Code Ann. art. 136(B) (in proceeding to determine whether to award visitation to grandparent or other relative, the court shall hold a contradictory hearing as provided for in R.S. 9:345 in order to determine whether the court should appoint an attorney to represent the child. ). 13

17 parties ability to pay is limited, the court shall attempt to secure... representation without compensation. 9:345(F). 5. MISCELLANEOUS A. Civil Contempt Proceedings In State v. Creamer, the Second Circuit found a right to counsel in a case involving a civil petition for child support because the judgment rendered against the defendant wherein he was uncounseled was used as a basis to punish him for contempt[.] So. 2d 667, (La. Ct. App. 1988). The court relied on precedent from the Louisiana Supreme Court relating to criminal neglect where the court held that the right to counsel attaches in some predicate proceedings even where jail is not an immediate possibility. Id. at 669 (citing cases). However, in State v. King, the Third Circuit disagreed with Creamer and reasoned that [t]he fact that some of the provisions of [the civil child support statute] and [the criminal neglect statute] accomplish the same goal of providing needed support to children by the responsible party does not overcome the distinction of a civil versus a criminal proceeding So. 2d 1374, 1376 (La. Ct. App. 1998). The U.S. Supreme Court s ruling in Turner v. Rogers, 564 U.S. 431, 449 (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 ) 10 The defendant was appointed counsel for the actual contempt proceeding (the authority for which is not provided), but not for the initial determination of child support. See id. at See also State v. Walker, 386 So. 2d 908, 909 (La. 1980). It is unclear exactly what the case was about, as one dissent describes it as a criminal prosecution for the violation of a criminal statute, id. (Dixon, J., dissenting), while another dissent tabbed it as a civil contempt proceeding. Id. (Dennis, J., dissenting). The majority opinion simply stated in a single sentence that there was no merit in the assigned errors (which themselves were not explained), Id., but one dissent stated that [t]he majority finds that he is entitled to no relief from his imprisonment without counsel because it interprets Argersinger v. Hamlin... as requiring a person to have an attorney only when his liberty is deprived in a criminal proceeding. Id. (Dennis, J., dissenting). The dissent urged the court to look beyond the civil/criminal distinction and find a right to counsel. See id. Neither Creamer nor King mentioned the Walker case. 14

18 may not have much of an impact on the Creamer ruling, given that Louisiana contempt proceedings are seemingly either criminal in nature or initiated by the state. 12 B. Paternity Proceedings In Franks v. Mercer, a decision rendered one week after Lassiter (but which did not mention Lassiter), the court held that a parent in a paternity proceeding did not have a right to counsel because [n]o criminal consequences directly emanate from the judgment appealed. This action is not quasi-criminal in nature. We are not persuaded by defendant s argument that he might later be subject to a contempt citation and imprisonment for failure to comply with the support order. 401 So. 2d 470, (La. Ct. App. 1981). C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion In proceedings for a minor to bypass the parental consent requirement to have an abortion, Louisiana does not provide a statutory right to counsel for the minor. 13 However, the Supreme Court of Louisiana has held that a trial court cannot appoint counsel for the fetus, as it 12 A Louisiana statute provides for fines of not more than $500 and/or imprisonment of not more than six months for criminal neglect of family under the Deadbeat Parents Punishment Act of Louisiana. La. Rev. Stat. Ann. 14:75. Because this is a criminal charge, the state supreme court held in State v. Broussard that defendants must be Boykinized (have their rights explained to them as required by Boykin v. Alabama, 395 U.S. 238 (1969)) and appointed counsel if indigent. 490 So. 2d 273, (La. 1986) (per curiam). Additionally, claims for child support can also be brought under La. Rev. Stat. Ann. 46:236.6, which allows the defendant to purge the contempt, but there is no provision for appointed counsel. However, it appears that the Department of Child and Family Services initiates all such contempt orders, see 46:236.6(A), so the contemnor must face the government s experienced and learned counsel, in the words of the Turner court. See 564 U.S. at Minors in Louisiana had been guaranteed appointed counsel under a prior version of the judicial bypass statute which required that bypass hearings be conducted according to the provisions of the Louisiana Code of Juvenile Procedure (C.J.P.). The C.J.P. had a catch-all provision entitling children to counsel in any other proceeding. In 1982, the Office of the Attorney General concluded that judicial bypass hearings were included in any other proceeding and thus minors had a statutory right to counsel when petitioning for judicial authorization for an abortion. See La. Att y Gen. Op. No (July 1, 1982). However, the C.J.P. was repealed and replaced with the Louisiana Children s Code in The Children s Code guarantees minors counsel in many types of proceedings, but lacks the catch-all provision the C.J.P. had. But see State in Interest of A.V.P., 108 So. 3d 1204, 1205 (La. Ct. App. 2013) (referring to fact that minor had counsel at Juvenile Court hearing appointed [p]ursuant to the Children s Code ). 15

19 would destroy the confidentiality of the proceedings. In re Doe, 591 So. 2d 698, 699 (La. 1991). D. Juvenile Delinquency, Status Offenses, or Child in Need of Services Proceedings A child may not waive his right to assistance of counsel in proceedings in which it has been recommended to the court that the child be placed in a mental hospital, psychiatric unit, or substance abuse facility, nor in proceedings to modify said dispositions, proceedings in which he is charged with a felony-grade delinquent act, or in probation or parole revocation proceedings. La. Child Code Ann. art. 810(D). E. Proceedings Involving Claims by or Against Prisoners State Court Decisions Addressing Constitutional Due Process or Equal Protection One case involving civil claims by or against prisoners has seemingly ignored Lassiter, or at least not mentioned it, focusing instead on whether a fundamental constitutional right was at issue. See Ardoin v. Bourgeois, 916 So. 2d 329, 331, 333 (La. Ct. App. 2005) (prisoner not entitled to appointed counsel in defending action for civil damages for assault, kidnapping, and other claims; court states that while threat to fundamental constitutional rights requires appointment of counsel, The court in [Lay v. McElven, 691 So. 2d 311, 313 (La. Ct. App. 1997)] determined that an incarcerated, indigent plaintiff's suit to recover damages for a violation of his civil rights was not a fundamental constitutional right which would entitle him to appointed counsel ). F. Proceedings Involving Debt La. Crim. Code Art (C)(2)(d), enacted in 2017 and scheduled to go into effect on August 1, 2018, specifies that in proceedings initiated by the district attorney to recover courtordered fines and fees, the debtor must be provided a notice stating that You have the right to be represented by counsel (attorney/lawyer) of your choice. If you cannot afford counsel, you have the right to be represented by a court- appointed lawyer at no cost to you. However, you must apply for a court-appointed lawyer at least seven (7) days before this court date by going to the public defender s office. There is a forty-dollar ($40) application fee. State Court Decisions Addressing Constitutional Due Process or Equal Protection 16

20 In Ford Motor Credit Co. v. George, the court determined that the guarantor of a loan was not entitled to counsel in the loan dispute. 839 So. 2d 1042, 1043, 1045 (La. Ct. App. 2003). The court explained that [s]ince this is not a criminal matter, [the guarantor] is not entitled to representation as required in criminal matters by virtue of the Sixth Amendment of the United States Constitution. Id. at The decision did not mention Lassiter, and focused instead on whether a fundamental constitutional right was at issue. See id. 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 14 and to all civil proceedings (including custody), 15 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. 3931(b)(2). Additionally, 50 U.S.C. 3932(d)(1), which also applies to all civil proceedings (including custody), 16 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. State Court Decisions Addressing Court s Inherent Authority Early on, the Louisiana Supreme Court had held that the county is held not liable [for attorney s fees] unless made so by particular statute. State v. Simmons, 10 So. 382, 384 (La. 1891). 17 The more recent doctrine, however, appears to depart from the sentiment expressed in Simmons. More recently, the high court has recognized its power to not only appoint attorneys U.S.C. 3912(a) states that the provisions of the SCRA appl[y] to... each of the States, including the political subdivisions thereof[.] 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 U.S.C 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... is in military service or is within 90 days after termination of or release from military service; and... has received notice of the action or proceeding. 50 U.S.C. 3932(a). 17 Note, however, that the court has also held that it can require attorneys to work without fee (although not without compensation for overhead/expenses). See State v. Wigley, 624 So. 2d 425, 429 (La. 1993). 18