Inmate Wins a Chance to Restore Parental Rights

(CN) - An inmate improperly lost parental rights after his court-appointed attorney withdrew and he was not given replacement counsel, the Delaware Supreme Court ruled.

Christopher Moore and Charlene Hall were unmarried and living separately when their child was born in August 2005. The pair moved in together the next month, but in July 2006, Hall alleged domestic abuse by Moore and obtained a protection-from-abuse order.

Moore was incarcerated five months later and has not seen his daughter, now age 7, since she was 9 months old. He is scheduled to be released in January 2019.

Hall petitioned to terminate Moore's parental rights in March 2011, and a Delaware court appointed an attorney to manage the indigent Moore's case.

One month before the termination hearing, however, Moore's attorney requested to withdraw, citing a "breakdown in the lawyer/client relationship."

Moore said that he was not going to hire new counsel, and the court directed his former attorney to act as "standby counsel" by appearing at the hearing and answering any questions that Moore had.

Moore's hearing did not go well.

"The father's only participation in the hearing was to cross examine one witness," the Delaware Supreme Court explained. "That cross-examination consisted of two questions. The father did not give an opening statement, present testimony on his behalf, call witnesses, present any physical evidence, object to the admission of any evidence, or give a closing argument."

At the conclusion of the hearing, the family court terminated Moore's parental rights on the grounds of unintentional abandonment.

Last week, the Delaware Supreme Court said this failure to appoint replacement counsel violated Moore's due-process rights.

"After a case-by-case determination is made that an indigent parent has a due process right to the appointment of counsel, we hold that that parent is entitled to the same procedural safeguards that are afforded by the Sixth Amendment to defendants in a criminal proceeding," Justice Randy Holland wrote for the en banc court.

"Although the Sixth Amendment right to counsel and the TPR due process right to counsel have different constitutional underpinnings, they are both entitled to the same protections," he added, abbreviating termination of parental rights.

Two lines of inquiry are necessary when an indigent parent requests the appointment of new counsel or seeks to represent himself, the court determined.

"First, the Family Court must decide if the parent's reasons for requesting substitute counsel constitute good cause to justify the appointment of new counsel," Holland wrote.

Second, if the parent requests no lawyer, the Family Court "must ensure that any decision by the parent to proceed pro se is made knowingly and intelligently."

In this case, Moore was not informed of what self-representation would entail. The standby role of his former counsel was insufficient to cure the deficiency.

Holland remanded the case, directing the Family Court to appoint replacement counsel for Moore and hold a new termination hearing.

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