Failure to Appoint Attorney Invalidated Termination of Mother's Parental Rights

Vol 33 No 2

In re T.M., 2014 WL 37287 (Hawai’i).

Where mother was a minor for most of case and had a GAL, but no attorney, termination was improper because mother was not adequately informed of her rights and responsibilities toward her child, and may well have made different decisions that would have changed the outcome.


A mother gave birth to a child when she was 15. She had mental health diagnoses, including psychotic and bipolar disorders. Petitions were filed to take custody of the child and the mother. 

The trial court advised the mother of her right to an attorney and also explained that it was trying to find one person to act as a guardian ad litem (GAL) and attorney, but that both might be needed if the GAL had recommendations for mother’s best interests that conflicted with her wishes. 

The mother did not fill out an application of indigency for an attorney. The court appointed an attorney for her mother (the grandmother), an attorney for the child’s father, and a GAL for the mother. 

In a later review, the GAL reported her recommendations and noted where the mother’s wishes conflicted. In another review, where termination was discussed due to limited progress of the mother and her family in providing a safe home, the GAL asked the court to appoint her an attorney.

At the first hearing on a termination petition filed by the agency, the mother had not yet been appointed an attorney. The court noted that it had hoped an agreement could be worked out. The agency said it was considering guardianship with the foster parent instead of termination, but would need to further explore relatives. The court then asked the GAL if she could represent the mother as her attorney. The GAL informed the court she believed it would be a conflict of interests.

By the second date for termination, the mother had been appointed an attorney. The agency reported it was continuing to look at possible relatives and the foster parent guardianship. The court responded that it wished to proceed with a termination hearing. The mother’s attorney objected noting she had only just been able to meet with the mother. 

The termination was put back on the docket when the agency found a relative interested in adopting. At the next hearing, the mother’s attorney asked for more time since the mother had just reached adulthood. Testimony was mixed regarding the mother’s commitment to remain drug and alcohol free and give her son priority. 

The trial court terminated her rights, finding that while she had made good progress the last few months, it could not be sure she would make a lasting change and the child had been in care over two years. The mother appealed. 

The Hawai’i Supreme Court vacated the termination order after finding the 19-month delay in appointing an attorney constituted an abuse of discretion. 

The trial court, the supreme court noted, should have recognized the mother needed an attorney when she was unrepresented during negotiations about whether the plan should be guardianship or termination. Nothing in the record showed the mother knew of the two-year statutory deadline that ultimately led to the termination ground. It was also improper because the mother was the only party without counsel. 

The Hawai’i Supreme Court went on to analyze the case-by-case statutory appointment scheme under the Hawai’i Constitution. Several issues weighed against a case-by-case approach—as here, the risk of erroneous denial of appointment, the statutory child welfare scheme’s complexity, evidentiary nuances, the imbalance of power between the agency and parents, and that deprivation of a parent-child relationship is more grievous a liberty deprivation than incarceration.

Based on its analysis, the supreme court held that the Hawai’i Constitution requires appointment of counsel for all parents whose children are taken into agency custody.


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