Right to GAL for certain unrepresented defendant parents

Indigent parents in involuntary adoption matters have the right to appointed counsel upon request under both the state's equal protection clause as well as under a state statute enacted after the Iowa Supreme Court's equal protection holding in In re S.A.J.B., 679 N.W.2d 645 (Iowa 2004).  However, certain categories of parents may be appointed an attorney under court rule even in a voluntary adoption scenario.

Iowa Rule of Civil Procedure Rule 1.211 prohibits the entry of a judgment against certain categories of individuals without providing them representation.  Specifically protected is "a party then a minor or confined in a penitentiary, reformatory or any state hospital for the mentally ill, or one adjudged incompetent, or whose physician certifies to the court that the party appears to be mentally incapable of conducting a defense." Id.  

These individuals may be defended by a fiduciary or their fiduciary's attorney, assuming the matter was not brought by the fiduciary.  But if the individual is unrepresented, then the court shall appoint a guardian ad litem to defend the action. Id.  However, the rules do not define "guardian ad litem", so it is unclear whether the GAL must be an attorney.  But in Punelli v. Punelli, a case that appears to have interpreted a similar predecessor rule, the Iowa Supreme Court rejected the defendant's argument that the rule required the GAL to be an attorney, and stated, "Although it is probably the general practice of courts to appoint an attorney guardian ad litem, we find no mandatory requirement for such procedure..." 149 N.W.2d 784 (Iowa 1967).  Accordingly, because it does not appear that the GAL must be an attorney, and because the rule applies only to certain categories of individuals, the right to a GAL is classified as qualified.

On appeal, denial of a guardian ad litem under the rule is subject to the harmless error standard. See Johnston v. Calvin, 5 N.W.2d 840, 844 (Iowa 1942) ("No claim of any prejudice is made because a guardian ad litem was not sooner appointed.").