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Hawaii high court sides with Kona mom who lost son

January 6, 2014 - 10:31pm

HONOLULU — Indigent Hawaii parents who face losing custody of their children are guaranteed the right to a court-appointed attorney, the state Supreme Court ruled Monday.

The ruling overturns a decision to terminate parental rights of a Kona mom who was 15 when she gave birth in 2009. Six months after the boy was born, the mother went to a domestic violence shelter because of a reported incident between her and the boy’s father.

Still a minor herself, the mother and her baby went into temporary foster care. Last year, Family Court determined the mother, who battled drug abuse and mental health issues, couldn’t care for her son, according to an appeals court ruling.

Her rights were violated because Family Court didn’t appoint a lawyer to represent her until the boy had been in foster care for nearly two years, her Maui attorney, Benjamin Lowenthal, argued at a hearing before the high court last month.

“The failure to immediately appoint counsel for petitioner even after it became apparent that (Department of Human Services) would seek to terminate petitioner’s parental rights left petitioner without the necessary assistance to prepare for the March 2, 2012, termination hearing,” the Supreme Court opinion says. “Petitioner was without legal guidance and did not have an advocate to represent her in negotiations with DHS.”

The identities of the mother and child were shielded by the court.

The American Civil Liberties Union of Hawaii and other public service law groups filed a friend-of-the-court brief in the case, saying they want a uniform Hawaii policy guaranteeing legal counsel for all indigent parents who face losing custody of children, regardless of their age, instead of on a case-by-case basis.

Courts in 43 states and the District of Columbia automatically provide court-appointed attorneys in abuse and neglect cases, according to the ACLU.

“We direct that upon the filing date of this opinion, trial courts must appoint counsel for indigent parents upon the granting of a petition for DHS for temporary foster custody of their children,” the Supreme Court’s opinion says.

The high court noted that the “right to counsel” is essential to fairness in the criminal court system, and an attorney is also necessary for a “fair procedure” in parental termination proceedings.

“When the government takes your children — even if it’s only temporarily — you have the right to a lawyer to defend and assert your rights as a parent. Now our Supreme Court has held that if you can’t afford a lawyer, the court must provide one for you,” Lowenthal said in an email. “We expect this in criminal cases because the stakes are so high for the accused and today, the court has recognized that a parent’s right to his or her children is just as important.”

The constitutional principle that an indigent parent needs to be afforded an attorney was never in dispute, said Anne Lopez, a spokeswoman for the state attorney general’s office. “Rather, this case presented the unique situation involving an indigent parent who did not apply for an attorney until after her child had been in foster care for over 1 1/2 years,” she said in a statement. “The court’s decision puts an affirmative duty on Family Court judges to ensure that indigent parents have legal counsel early in the case even when the parent does not request one.”

The ruling vacates the mother’s termination of parental rights and sends the case back to Family Court for a new hearing.

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