2019.08.01 Case Law Summary

Adoption of S.S.A.R., 2019COA112 (July 25, 2019)

The child’s maternal aunt and uncle filed petitions for kinship adoption and to terminate father’s parental rights. Father was incarcerated at the time and filed a letter objecting to the adoption. After a brief hearing, the court terminated father’s parental rights and entered a decree of adoption. Father then filed a motion for reconsideration arguing that due process required that he have legal representation during the proceeding.

Father remained pro se until the court of appeals granted his motion for counsel on appeal. The court of appeals then considered parents’ right to counsel in adoption proceedings, applying the Eldridge analysis, and concluded that the presumption against the right to counsel was overcome in this case and that father had a due process right to counsel.

Although this is an adoption case, I think this case is a noteworthy demonstration that the court of appeals is paying attention in Title 19 cases. There also seems to be the willingness (in some divisions of the court of appeals) to actually ascribe fundamental due process where the record was not specifically made in the court below.

As a practitioner, I think this means that if you have an issue come up for a client, make sure that your record includes some reference to fundamental fairness and the harm to your client – it makes all the difference for our appellate attorneys, and could make a bigger difference if the case ends up in the right division of the court of appeals as well.