Frase v. Barnhart

No. 691 (Md. Ct. App. Dec. 11, 2003) ; Clearinghouse Number: 55347

Description

Maryland Appellate Court Vacates Conditions Attached to Custody Award, Finds Mother’s “Civil Gideon” Claim Moot

Abstract

The Maryland Court of Appeals, in a 4-to-3 decision, found moot appellant’s claim that, due to indigency, she had a common-law and state constitutional right to appointed counsel when an unrelated couple sought custody of her child. The majority said that, because it was vacating conditions that the lower court had imposed on appellant’s custody, “there will be no further proceedings in this case in which [appellant] may need or desire counsel. In this circumstance it would be especially inappropriate … to address and rule upon the right-to-appointed-counsel issue.” In a strong concurring opinion, three judges urged the court to hold that “in cases involving the fundamental right of parents to parent their children, especially when the parent is a defendant and not a plaintiff, counsel should be provided for those parents who lack independent means to retain counsel.” Appellant had unsuccessfully sought legal aid or pro bono counsel to represent her when appellees, who had cared for the child for several weeks while appellant was incarcerated, filed a petition seeking custody. Although the lower court denied the petition, it attached several conditions to its award of custody to appellant. On appeal, appellant challenged the conditions and argued that she had a common-law right to appointment of counsel based on a 1494 English statute and the Maryland Declaration of Rights. Because the appellate majority ruled that the conditions were impermissible and the proceeding was therefore over, it found that a ruling on appellant’s other claims was unnecessary. It also noted that, although she had been unrepresented below, appellant was well represented on appeal; the court declined to assume that “none of the five lawyers and three law firms representing [her] in this appeal would continue to represent her in any further proceeding ….” Appellant’s counsel expressed their intent to continue to explore strategies leading to a “civil Gideon right.”

Additional Information

Attorney Information
Amici counsel are Jane C. Murphy, Claire A. Smearman, Cheri Wyron Levin, University of Baltimore Family Law Clinic, 5 W. Chase St., Baltimore, MD 21201 (410.837.5706); Tracy Brown, The Women’s Law Center of Maryland, 305 W. Chesapeake Ave., Suite 201, Towson, MD 21204 (410.321.8761)
Docket Date
2003-12-11 00:00:00+00:00