Appointment of Counsel in Parental Rights Cases

In the matter of C.B.S. v. J.S.D. (In re E.K.S.), 2016 UT 56, Mother gave birth to her daughter (“E.K.S.”) while she was on probation and faced additional incarceration for other criminal activities. She entrusted E.K.S. to her sister and brother-in-law (“Adoptive Parents”) to take care of the daughter until Mother would be released. Mother did not comply with the terms of her probation, so she was arrested and ordered to serve her original sentence of zero to five years. Adoptive Parents petitioned to terminate Mother’s parental rights, and Mother denied the allegations and requested an appointment of counsel from the juvenile court to appoint an attorney to represent her. The juvenile court advised Mother of Utah Code section 78A-6-1111(2), which says that a public defender is not available in a private petition. Thus, Mother was unrepresented by counsel during the termination proceeding. The juvenile court terminated Mother’s parental rights and awarded custody of E.K.S. to Adoptive Parents. Mother appealed.


The Utah Supreme Court reviewed this case for correctness, as the main issues in this case involve the constitutionality of Utah Code section 78A-6-1111(2). Case law makes it clear that all termination proceedings involve state action sufficient to trigger constitutional protections because parental rights can be terminated only by the state through a judicial order. The next issue addressed how the juvenile court erred by concluding that Section 78A-6-1111(2) prohibited it from considering whether to appoint counsel for Mother. In doing so, the juvenile court failed to determine whether Mother was indigent and whether due process required the appointment of counsel.


Utah Supreme CourtDue process requires the appointment of counsel only in certain circumstances. The Constitution requires a case-by-case balancing of the relevant factors. If the certain circumstances of a case show that due process does not require counsel to be appointed, the only way counsel could be appointed is if the court exercised its discretion. If there is not a due process right to counsel to begin with, then no due process rights can be violated by a prohibition on the appointment of counsel. The Utah Supreme Court held that in this case Section 1111(2) is not facially unconstitutional under the federal Due Process Clause because it operates constitutionally in at least some circumstances.


Although the Utah Supreme Court found that Section 78A-6-1111(2) is facially constitutional, it found that the juvenile court erred by relying on Section 78A-6-1111(2) to deny counsel without considering Mother’s circumstances. The U.S. Supreme Court has held that counsel may be required to be appointed as a matter of due process in some parental termination cases; this holding applies to privately and state-initiated termination proceedings. Just because the petition in this case was written by a private party does not obviate the constitutional guarantees of due process. Section 1111(2) can disallow the appointment of counsel only if such prohibition comports with the requirements of due process. The juvenile court failed to consider the due process analysis and to make the preliminary determination as to whether Mother was indigent, so the judgment was reversed in part and remanded.

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