Right to counsel

A statute provides that indigent parents in involuntary private adoption proceedings are entitled to counsel.  The statute was enacted in response to an Iowa Supreme Court decision mandating the provision of counsel under state equal protection grounds.

In In re S.A.J.B., the court considered a constitutional challenge to the failure to provide counsel at state expense in all involuntary termination of parental rights proceedings. 679 N.W.2d 645 (Iowa 2004).  Under chapter 232 of the Iowa Code, indigent parents were guaranteed counsel at public expense in state-initiated termination proceedings. S.A.J.B., 679 N.W.2d at 647 (citing Iowa Code § 232.113).  Chapter 600A of the Iowa Code provided an alternative procedure whereby a “parent or prospective parent” could initiate termination proceedings and did not contain any guarantee of a right to counsel for an indigent parent whose rights were in jeopardy. Id. at 648 (citing Iowa Code § 600A.5(1)).

Noting that the issue before it “remain[ed] open under the federal constitution,” the court looked to the state equal protection clause first. Id.  The S.A.J.B. court found that under Iowa law “parental rights are fundamental rights,” and as such “the infringement on parental liberty interests implicated by the statute” had to be reviewed via strict scrutiny. 679 N.W.2d at 648 (citations and quotations omitted).  Under this standard of review, the court found the legislative framework “unconstitutionally underinclusive” because it provided for counsel to some indigent parents facing involuntary termination proceedings but not to others. Id. at 651.  The court reasoned that the proffered state interest in “conserving … fiscal resources” was insufficient because it would suggest “no reason to provide counsel at public expense in any termination case,” which would contravene Lassiter’s pronouncement that the “automatic denial of counsel in all termination proceedings would deny due process.” Id. (citing Lassiter, 487 U.S. at 31-32).  The court also rejected a purported distinction between state-initiated Chapter 232 termination proceedings and private-party-initiated Chapter 600A termination proceedings based on the “vast resources of the state” with which the party must contend in the former.  S.A.J.B., 679 N.W.2d at 650 (quotation omitted).  The Court found state action by emphasizing that “the state is an integral part of the process in a 600A termination” as well because, even though the State does not initiate this type of termination proceeding, it is ultimately asked to use its unique power to issue an order terminating the resisting individual’s parental rights. Id.

Accordingly, the court held that the state constitutional right to equal protection required counsel to 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. Id. The S.A.J.B. court did, however, suggest its holding was limited to extending a right to counsel to indigent parents facing 600A termination proceedings that were involuntary, affirming an earlier holding that “[i]t was appropriate for the legislature to distinguish between voluntary and involuntary terminations and to provide for counsel at public expense only where the proceedings are involuntary.” Id. at 649 (quoting In Interest of J.L.L., 414 N.W.2d 133, 134-35 (Iowa 1987)).

In response to S.A.J.B., the legislature added Iowa Code § 600A.6A(2) to permit appointment of counsel on a case-by-case basis in adoption cases.  In order to be entitled to counsel under the revised statute, the parent was required to request counsel and demonstrate indigence, both of which are standard, but the court was also required to make an affirmative finding as to both of the following factors:

(1) The person, because of lack of skill or education, would have difficulty in presenting the person’s version of the facts in dispute, particularly where the presentation of the facts requires the examination or cross-examination of witnesses or the presentation of complex documentary evidence.

(2) The person has a colorable defense to the termination of parental rights, or there are substantial reasons that make termination of parental rights inappropriate.

Iowa Code § 600A.6A(2) (2005), amended by Acts 2014 (85 G.A.) ch. 1038, H.F. 2326, § 3, eff. March 26, 2014.

However, in Crowell v. State Pub. Def., 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. 845 N.W.2d 676 (Iowa 2014).  The Crowell 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.

845 N.W.2d 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., 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.” No. 17-1174, 2018 WL 4627819 (Iowa Ct. App. Sept. 26, 2018) (unpublished).  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.”

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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 it.