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Teen in custody case should have had legal counsel, high court told


The state Supreme Court began considering a claim Thursday by a young Hawaii island mother that she should have been appointed an attorney to represent her before she lost custody of her son.

The Kona mother was 15 when she gave birth in 2009. Six months later she went to a domestic violence shelter because of a reported incident between her and the boy’s father.

Still a minor herself, the mother and her baby went into temporary foster care. Last year Family Court determined the mother, who battled drug abuse and mental health issues, couldn’t care for her son, according to an appeals court ruling.

Her rights were violated because Family Court didn’t appoint a lawyer to represent her until the boy had been in foster care for nearly two years, her Maui attorney, Benjamin Lowenthal, argued at a hearing before the high court.

The identities of the mother and child are being shielded by the court.

The court treated her differently because of her age, Lowenthal argued, noting that the boy’s father, who was 18, and the baby’s grandparents received court-appointed attorneys.

The mother didn’t get one until after she was 18, but by then termination proceedings were already underway, said Lowenthal, who was appointed to represent the mother in her appeal.

The American Civil Liberties Union of Hawaii and other public-service law groups filed a friend-of-the-court brief in the case, saying they want a uniform Hawaii policy guaranteeing legal counsel for all indigent parents who face losing custody of children, regardless of their age, instead of on a case-by-case basis.

Courts in 43 states and the District of Columbia automatically provide court-appointed attorneys in abuse and neglect cases, according to the ACLU.

"Expecting a poor, minor parent to somehow pay a lawyer or represent herself in court is not fair or constitutional, and justice is not served by the Hawaii courts’ current, subjective practice," said Victor Gemi­ni­ani, executive director of the Hawaii Appleseed Center for Law and Economic Justice, which joins in the ACLU’s brief.

Deputy Attorney General Nolan Chock, representing the state Department of Human Services, argued Thursday the mother was given a "fundamentally fair process" and that the state tried to keep mother and child together.

Chock said he doesn’t have a problem with a rule going forward guaranteeing legal counsel in similar situations but said he’s concerned overturning the lower court’s ruling will negatively affect the boy, who remains in foster care. He said adoption proceedings can’t go forward during the appeal process.

The state Intermediate Court of Appeals had ruled that the mother didn’t prove termination proceedings would have been avoided if she had been appointed counsel sooner.

"My client came to court as a teen mother, and her rights as a mother are just as important as any other parent," Lowenthal said outside of court Thursday. "Every day she is hoping for an opportunity to show she is a good mother."


Jennifer Sinco Kelleher, Associated Press

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