Right to Self-Representation in Termination of Parental Rights Proceeding

The U.S. Supreme Court has held that a defendant in a criminal proceeding has a constitutional right to refuse their court appointed counsel. A criminal defendant also has a right to represent themselves, provided they have knowingly and voluntarily waived their right to counsel. In New York, before a court may allow a criminal defendant to proceed pro se, (1) the defendant’s request to do so must be unequivocal and timely asserted, (2) there must have been a knowing and intelligent waiver of the right to counsel, and (3) the defendant must not have engaged in conduct which would prevent the fair and orderly exposition of the issues. 

In in re Kathleen K. the New York Court of Appeals addressed whether the Family Court erred in failing to grant the application of appellant Stephen K. to represent himself in a proceeding brought by the Department of Social Services (“DSS”) to terminate his parental rights (“TPR”).   In 2007, the Family Court found that Stephen K. had neglected his children. Two years later, after Stephen K. failed to comply with court ordered conditions, DSS filed a petition to terminate his parental rights. Following a trial, Stephen K.’s parental rights were terminated. 

On appeal, Stephen K. argued that the Family Court had erred in refusing to allow him to represent himself in the TPR proceedings. The Appellate Division upheld the termination order holding that “Stephen K.’s applications to represent himself were not unequivocal and timely.” The Court of Appeals affirmed the Appellate Division’s decision on the same grounds. 

In his concurring opinion, Judge Smith of the Court of Appeals stated that the question which the Court should have addressed is whether the right to self-representation guaranteed for criminal defendants by the U.S. Constitution also applies in a Family Court proceeding for the termination of parental rights. 

Judge Smith argued that a respondent in a TPR proceeding does not have the right to self-representation. He based this argument on the fact that “a criminal defendant who chooses to go without a lawyer will ordinarily harm no one but himself, but a parent who makes that choice in a parental rights proceeding can harm his children.”  

One way a child may be harmed by allowing a respondent in a TPR proceeding to represent them self is by increasing the likelihood of an appeal. Children involved in the foster care system need permanency in their lives. If their family cannot be reunified, it is in their best interests to have parental rights terminated as quickly as possible so that they may be freed for adoption. By allowing the respondent in a parental rights proceeding to represent themselves, there is an increased risk that the respondent will appeal a order to terminate their parental rights. The additional time associated with the appeals process would further delay the freeing of the child for adoption and would deny the child an opportunity to move forward with their life.

 Judge Smith came to the correct conclusion that the unique nature of a TPR proceeding should prevent the right to self-representation from being extended to a respondent in a parental rights proceeding.