Right to counsel

01/01/2014, Legislation, Termination of Parental Rights (Private) - Birth Parents

In response to the Iowa Supreme Court’s decision in In re S.A.J.B., 679 N.W.2d 645, 648 (Iowa 2004) (holding that counsel must be provided at state expense equally in all involuntary termination of parental rights proceedings regardless of whether a private individual or the state initiates the petition), the legislature amended Iowa Code § 600A.6A(2) to permit appointment of counsel on a case-by-case basis in adoption cases.  However, in Crowell v. State Pub. Def., 845 N.W.2d 676 (Iowa 2014), the Court held that this legislative change did not affect its constitutional ruling in S.A.J.B. that all parents are entitled to appointed counsel in private termination proceedings.  The court rejected the state’s call to overrule S.A.J.B. or find that the statute satisfied constitutional requirements, holding that S.A.J.B. had


applied categorical equal protection principles in holding that a distinction between chapter 232 proceedings and chapter 600A proceedings for purposes of providing counsel to indigents could not be sustained. While due process principles under the United States Constitution may involve highly fact-specific analyses and balancing tests, … In re S.A.J.B. applied categorical equal protection principles and did not employ the case-by-case approach embraced by the Lassiter majority.


Id. at 690.  One month after Crowell was decided, the Legislature amended Iowa Code § 600A.6A(2) again such that now it states, “If the parent against whom the petition is filed desires but is financially unable to employ counsel, the court shall appoint counsel for the person if the person requests appointment of counsel and the court determines that the person is indigent.”


Additionally § 600A.6(3) requires that parents be notified of this right to appointed counsel.  In M.S. v. C.S., 2018 Iowa App. LEXIS 865 (Iowa App. 2018), the Court of Appeals of Iowa held that a father had not been properly notified of his right to appointed counsel and that “it was improper to hold the termination hearing without proof of this notice in the record.”  The court reversed the termination order and remanded back to the trial court.  It also commented that “it would be the better practice for the court to inquire at the beginning of a private termination hearing where one of the parties is not represented by counsel if the party was aware of the statutory right to be represented by counsel at the hearing.”