While in a few civil cases the Supreme Court has ruled that there is a right to appointed counsel, the general rule is that there is no right to appointed counsel in civil cases, even when a party faces incarceration.

The Supreme Court has ruled that the Sixth Amendment right to counsel only applies to criminal cases, Yet in some civil cases defendants are facing significant jail time. In Turner v. Rogers, decided Monday, the question was whether the Fourteenth Amendment’s Due Process Clause required the appointment of counsel in civil contempt proceedings resulting from the failure of a non-custodial parent to pay child support. One of the differences between civil contempt and criminal law is that in a criminal case a defendant may be incarcerated as a form of punishment. In civil contempt proceedings, incarceration may be ordered but its purpose is to coerce a defendant into complying with a court order. Incarceration is only permitted in a civil contempt proceeding if the defendant willfully refuses to comply with the court order. Thus if a defendant is unable to comply–in this case if the defendant does not have the money to pay the child support–incarceration is not a appropriate remedy. Once the defendant complies, such as by paying the arrears of the child support, he or she is released from custody.

Michael Turner was ordered to pay $51.73 per week to Rebecca Rodgers for support for their child. While he made some payments it was generally to avoid incarceration and he spent several periods in jail. On January 3, 2008 he was held in contempt for being $5,728.76 behind on his payments. Neither Turner pr Rodgers was represented by counsel. At no time was he asked about his finances. Nor was he told that inability to pay the child support was a complete defense. When given a chance to address the court he did not discuss his ability to pay. Rather he discussed his history of drug abuse. The Court held him in contempt and ordered him to do a year in jail without good time or work time. The court allowed him to be released on work furlough but there is no evidence that he had a job. With help from pro bono counsel he appealed.

The court assessed three factors in determining whether there is a due process right to appointed counsel:

(1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an ‘erroneous deprivation’ of that interest withand without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’

Both the private interest–incarceration versus liberty and the risk of erroneous deprivation of the right are great and favor the appointment of counsel. But the court found countervailing issues. The primary issue during a hearing on civil contempt is the ability to pay and in order to get appointed counsel that decision needs to be decided before the hearing since only the indigent will get appointed counsel. Often the opposing party does not have counsel and the court was afraid that the defendant might have an unfair advantage.

The court held that as long as specific safeguards were present appointed counsel is generally not necessary to meet Due Process requirements. Specifically it held that indigent individuals charged with contempt must either have appointed counsel or “(1) notice to the de-fendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” Where the opposing party has counsel the alleged contemner is entitled to appointed counsel.

Since Turner had neither appointed counsel or the requirements of due process his finding of contempt is reversed.

The California Supreme Court in In re Nolan W. ruled that Juvenile Courts do not have the power to incarcerate parents in dependency matters for failure to comply with reunification plans.

In In re Nolan W. the San Diego County Juvenile Court found Nolan’s mother to be in contempt for her failure to comply with the drug treatment conditions of its SARMS (Substance Abuse Recovery Management System) Under the SARMS program parents in dependency actions who are suspected of having substance abuse problems are referred to a private organization that contracts with the Juvenile Court for assessment. If the programs finds that the parent needs substance abuse treatment, the parent can either voluntarily agree to enter into a contract with SARMS or the Court will order it as part of the reunification program. Failure to comply (dirty tests, missed sessions, etc) with the conditions of the program can result in a order finding the parent in contempt of court. The court may then order up to five days in jail for each violation. In the case of Nolan W.’s mother the court found 60 violations of the SARMS conditions and after the mother failed to appear in court sentenced her to 300 days in jail, later commuted to 32 days.

The Supreme Court found the use of incarceration to force compliance with a reunification policy is unauthorized under state law. Entry into a reunification program is voluntary and while the penalty is severe (removal of the child from the parent’s custody) the parent does not have to enter into or comply with a reunification program. Furthermore the Legislature has set the penalty as the loss of parental rights and at no place does it authorize incarceration for the failure to comply with reunification orders.

The use of incarceration to force compliance with with reunification programs is similar to criminal contempt even thought dependency matters are civil in nature. Civil contempt requires that the order be indeterminative in length and the incarceration be terminated upon compliance with the court order. Unlike civil contempt criminal contempt is punitive and the sentence is for a specific period of time. Since reunification is voluntary and since it is the child, not the parent, that is the ward of the court, the Court found that punitive actions are inappropriate.

As a common sense point of view, if the threat of permanent removal of the child from the household does not result in compliance jail is unlikely to succeed either. Certainly while one is in jail one is probably unable to take significant steps towards reunification and the state policy behind dependency courts requires that reunification be the goal in most cases. As a general rule reunification is in the best interest of the child and the parent’s incarceration is counter productive. In the case of Nolan W. it was particularly unhelpful since it was ordered after reunification efforts had been terminated and when it was apparent that parental rights would probably be terminated.