The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule requiring the automatic reversal of the termination of parental rights (TPR) decision in situations where a parent is denied the assistance of an attorney at critical stages of the case leading up to the TPR hearing. This rule is consistent with the United States Supreme Court's jurisprudence concerning the denial of counsel in criminal cases and would, as a matter of policy, lead to better outcomes for children in foster care. It would also help further the appearance of a just decision making process that respects the rights of all parties affected by the child welfare system-an important consideration given the current perceptions of the system.
Sankaran, Vivek. "No Harm, No Foul? Why Harmless Error Analysis Should not Be Used to Review Wrongful Denials of Counsel to Parents in Child Welfare Cases." S. C. L. Rev. 63, no. 1 (2011): 13-41.