Right to counsel

Iowa Code § 232.89(2) specifies that in abuse/neglect cases, the court must appoint both counsel and a guardian ad litem (GAL) for the child, but § 232.89(4) adds that “[t]he same person may serve both as the child’s counsel and as guardian ad litem. However, the court may appoint a separate guardian ad litem, if the same person cannot properly represent the legal interests of the child as legal counsel and also represent the best interests of the child as guardian ad litem…”

In Interest of J.V., the court considered whether the juvenile court should have appointed an attorney separate from the GAL for the child. No. 21-1769, 2022 WL 470335 (Iowa Ct. App. Feb. 16, 2022) (unpublished).  The child’s grandmother, who had intervened in the Child in Need of Assistance (CINA) matter, argued that the court should have bifurcated the GAL and child attorney roles, since the child expressed a desire to live with their grandmother, but the GAL continued to advocate for placement of the child with their grandfather.

Relying on In re A.T., 744 N.W.2d 657, 663 (Iowa Ct. App. 2007), the J.V. court indicated that “the older, more intelligent, and mature the child is,” the more an attorney is needed to advocate for the child’s position. 2022 WL 470335 at *3.  In this case, the court held that bifurcation was not necessary, reasoning that J.V. was just nine years old and “the record [was] devoid of any evidence that J.V. is particularly mature for his age.” Id. Compare In re A.T., 744 N.W.2d 657 (Iowa Ct. App. 2007) (finding abuse of discretion where trial court failed to appoint separate attorney for a 12-year-old child who was very mature and had opposed the termination of parental rights, given that the GAL had advocated in favor of the TPR) with In re D.F., No. 15–0031, 2015 WL 7075822 (Iowa Ct. App. Nov. 12, 2015) (unpublished) (finding trial court’s failure to appoint separate counsel was not an abuse of discretion where the child, who had turned 11 during the termination proceeding, was not sufficiently mature and had no unambiguously communicated a desire to remain with his parents).

With regard to indigent Native American children, Iowa provides the right to counsel to children “in any removal, placement, termination of parental rights, or other permanency proceedings.” Iowa Code § 232B.5(16).  This provision goes beyond that of the federal Indian Child Welfare Act, which makes appointment discretionary. Compare Iowa Code § 232B.5(16) with 25 U.S.C. § 1912(b) (“The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child.”).

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Note:  Per Iowa R. App. P. Rule 6.904(2)(c), although “[a]n unpublished opinion or decision of a court or agency may be cited in a brief if the opinion or decision can be readily accessed electronically”, “[u]npublished opinions or decisions shall not constitute controlling legal authority.”  Any discussion of unpublished decisions included here is for illustrative purposes only.  Please check applicable rules before relying upon on unpublished authority.