In a unanimous opinion issued yesterday, the Hawaii Supreme Court ruled that parents have the constitutional right to an attorney during child welfare proceedings, effectively undermining a long-standing policy that has often placed children in foster care regardless of whether their birth parents have the money and legal savvy to challenge the court’s decision. 

Hawaii is one of just a few states that don’t automatically appoint parents an attorney during such proceedings. The state can remove children from their parents’ homes and place them in foster care even if the parents can’t afford legal counsel or navigate the litigation process — a practice that strips parents of their parental rights, the opinion argues. Court officials determine whether to grant parents attorneys on a case-by-case basis.

The Supreme Court decision arose out of a case in which a family court allegedly deprived an underaged mother of her parental rights over her infant child, who was placed in foster care, even though it didn’t appoint her an attorney. The appeals court later upheld the family court’s ruling 2-1.

The Supreme Court, referencing an amicus brief submitted by three public-service law organizations — the Legal Aid Society of Hawaii, the Appleseed Center for Law and Economic Justice and the ACLU Hawaii — opined that the case-by-case approach meant that the court had to determine in advance what difference legal counsel would make for a case. The opinion compares legal counsel for parents to fair trials for criminal defendants. 

“Our justice system became more just today,” said Appleseed Deputy Director Gavin Thornton in a statement. “No parent should face a court alone as the State moves to take his or her child away.”

The Supreme Court decision means that the court must appoint legal counsel for every parent who faces child welfare proceedings. 

Photo: Aliiolani Hale, which houses the Hawaii Supreme Court (Nanea Kalani/Civil Beat)

— Alia Wong