The Civil Right to Counsel in Foreclosures, Termination of Parental Rights

The Brennan Center for Justice (NYU) today issued an outstanding report on the lack of legal representation for those facing foreclosures.  (I previously posted on this issue here.)  The report, titled Foreclosures: A Crisis in Legal Representation, offers a sobering look at this critical problem:

In Connecticut, over 60 percent of defendants facing property foreclosure in 2007-08 did not have counsel.

In New York, 84 percent of defendants in proceedings in Queens County involving foreclosures on "subprime," "high cost" or "non-traditional" mortgages (which are mortgages disproportionately targeted to low-income and minority homeowners) proceeded without full legal representation.  In Richmond County (Staten Island), 91 percent of such defendants were unrepresented, and in Nassau County, 92 percent were unrepresented.

In Stark County, Ohio, heavily impacted by foreclosures, data suggests that 86 percent of defendants facing property foreclosures did not have counsel in 2008. 

The report argues that "[u]nless and until the foreclosure process and laws are simplified to the point where legal counsel is not necessary, each homeowner facing foreclosure should be provided with an opportunity to consult with a trained counselor and then to receive fuller representation by a lawyer where necessary to ensure just and fair proceedings."

Such a civil right to counsel may not be far off.  The Supreme Court yesterday took the exceedingly unusual step of asking the Texas Solicitor General for his views on a civil right to counsel case coming out of that state.  The case, Rhine v. Deaton, involves a biological mother's private custody dispute with temporary foster parents.  The Texas courts denied appointed counsel to the mother, and she filed for Supreme Court review.  The parties have filed their cert. briefs, and the Court invited the Texas SG to provide his views.

I posted an analysis of the case this summer, suggesting that the mother faces a major hurdle in Lassiter v. Department of Social Services, a 1981 case denying a right to counsel for a poor mother in similar circumstances.  The Court in that case used the three-factor procedural due process balancing test in Mathews v. Eldridge and weighed the balance against a newly discovered presumption against appointed counsel in cases where physical liberty is not at stake.  (A claimed right to counsel in foreclosure cases would face the same burden under Fourteenth Amendment Due Process.  Some litigants have seen success, however, using state constitutional provisions.  Rhine's case comes up under the Fourteenth Amendment.) 

M.L.B. v. S.L.J., a 1996 case involving a poor mother's ability to appeal an order terminating her parental rights, may have partially eroded Lassiter's foundations--or at least it may have given plaintiffs a new set of constitutional tools to work with.  The Court in that case held that the mother had a right under Equal Protection and Due Process to appeal the order, even though she couldn't pay the appellate fees.  Unlike Lassiter, M.L.B. thus wasn't tethered only to procedural due process.  It gives litigants much more to work with.  (As I argue here and here, it gives litigants very much more.)

The Court's consideration of Rhine suggests that it may be willing to reconsider the Lassiter analysis and its groundless presumption in light of M.L.B.  It's not clear what the Court seeks from the Texas SG, but it may be seeking more information on the procedural complexities in Texas termination-of-parental rights proceedings--information that goes directly to one of the Mathews factors and would be relevant to an M.L.B.-type analysis. 

This is one to watch.

SDS