Utah high court: some parents have right to counsel in private termination cases

The Supreme Court of Utah held that parents may be constitutionally entitled to counsel in private termination of rights cases.

In In re E.K.S., the Supreme Court of Utah evaluated a version of Utah Code § 78A-6-1111 existing at the time of the case that prohibited juvenile courts from appointing counsel in private juvenile termination of parental rights cases (the statute was subsequently amended to permit appointment in such cases where due process requires it, and the current statutory scheme requires counsel). 2016 UT 56 (Utah 2016).

A trial judge relied on that statute to deny counsel to a parent, and the parent argued that the statute violated the U.S. Supreme Court’s ruling in Lassiter v. Dep’t of Soc. Servs, which held that appointment of counsel in terminations pursuant to 14th Amendment is done on a case-by-case basis.  First, the E.K.S. court found that private termination actions involve state action, citing both state and U.S. Supreme Court precedent.  It then held that the statute would only be facially unconstitutional if there were no situations when it did not violate the constitution, and since Lassiter does not require counsel to be appointed in all cases, the statute was constitutional for any situation where due process does not require the appointment of counsel.  The court then held that the trial judge erred in relying solely on the statute to deny counsel, since

The Supreme Court held in Lassiter that counsel may be required to be appointed as a matter of due process in some parental termination cases, and this holding applies equally to both privately and state-initiated termination proceedings.  The mere fact that the petition was initiated by a private party does not obviate the constitutional guarantees of due process.

Since the trial judge had not even made a finding as to whether the parent was indigent, the court chose to remand the entire matter back to the trial court for a Lassiter determination.

Then, in In re K.A.S., a trial judge relied on the version of Utah Code § 78A-6-1111 existing at the time to deny counsel for an indigent parent in another private termination case. 2016 UT 55 (Utah 2016).  The Supreme Court of Utah held that once the trial judge knew that the parent was indigent, "the district court was required as a matter of law to apply the test set forth in Lassiter in order to determine whether L.E.S. had a right to counsel.”  The court then applied the Lassiter factors and found that the parent was entitled to counsel due to (a) the risk of self-incrimination and criminal allegations; (b) the general risk of error in Utah private termination proceedings, which is greater than in state-initiated terminations due to fewer procedural protections, such as a lack of in-home services and reunification efforts; (c) the fact that the parent was incarcerated and had difficulty attending hearings even telephonically; and (d) the parent’s efforts to maintain a relationship with the child, along with the fact that the parent would be released in 9 months.  

The K.A.S. court also rejected the dissent’s allegation that it was lowering the standard for appointment of counsel in termination cases while commenting that routine appointment in private termination cases might be even more appropriate than in state-initiated cases:

The dissent understands the effect of Lassiter’s presumption to be that the right to counsel in civil cases—including parental-rights termination cases—must be found only rarely. See infra ¶ 63 n.9. This is a misreading of Lassiter. To be sure, Lassiter acknowledges that there is a presumption against the right to counsel in civil cases. But Lassiter nowhere implies that the effect of this presumption is that if courts regularly find a right to appointed counsel in parental-rights termination proceedings they are doing it wrong … Lassiter notes, “courts have generally held that the State must appoint counsel for indigent parents at termination proceedings.” Id. Nor does Lassiter lament, or seek to change, this state of affairs … In any event, we note that even if application of the Lassiter test will result in the right to appointed counsel in many cases in which a parent’s rights are in jeopardy, this result stems, in large part, from the existence of a statutory right to counsel under Utah Code section 78A-6- 1111(1)(c). Under that section, indigent parents have the right to counsel in parental-rights termination proceedings initiated by the State or a political subdivision of the State in juvenile court. Id. In such state initiated termination cases, the risk of error is likely to be lower because of the State’s goal to preserve families if possible and because of additional protections such as the provision of in-home services and the requirement of “sufficient evidence to satisfy a parent’s constitutional entitlement to heightened protection against government interference with the parent’s fundamental rights and liberty interests” … Because of the lower risk of error, the presumption against the right to counsel would be less likely to be overcome. However, because of the statutory right to counsel under Utah Code section 78A-6-1111(1)(c), the Lassiter test is not applied in such cases.  Consequently, while it might appear that the presumption in Lassiter is “turn[ed] . . . on its head,” in reality the Lassiter test is simply never applied to many of the cases in Utah in which the presumption might prevail.

In the end, the court held that while the parent was indigent at the time counsel was denied, the parent had been released from prison since then and might not be so anymore, so it remanded for both an indigency determination as well as (apparently) a re-application of the Lassiter factors.

A concurrence to K.A.S. argued that the court should have reached the state constitutional claims based on a state constitutional primacy approach, and commented, "Notwithstanding the ultimate result in this case under federal law, there will remain an open question as to the constitutionality of Utah’s appointment of counsel regime.”