Hello Parental Defenders-
We are fortunate to have a guest post today by Board Member and PDA Treasurer Mark Tanner, and Chandler Tanner, his son. Together, Mark and Chandler form the firm Tanner & Tanner. For a more complete account of both of their extensive legal expertise, you can look
here.
As many of you may be aware, the Supreme Court of Utah recently handed down opinions in two different cases regarding the right to representation in termination actions that bear a direct impact on the work you do every day. Mark and Chandler put together a summary of the decisions and their impact below.
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By: Mark Tanner and
Chandler Tanner
Background
In re E.K.S. dealt
with the appeal by a mother whose parental rights had been terminated by a Utah
juvenile court as part of an adoption proceeding initiated by a private party. In re K.A.S. similarly dealt with the
appeal of a father whose parental rights were being terminated as part of an
adoption proceeding initiated by a private party, though the action was brought
in Utah district court. In both cases, the parent whose rights were at jeopardy
was denied state-appointed counsel at the trial level.
In In re K.A.S.,
which was filed in district court by the adoptive parents in September 2013,
the indigent father was initially appointed counsel but later was denied
counsel based on a county attorney’s opinion that state-appointed counsel was
not available to the father because the termination case was brought in district
court, rather than juvenile court.
In
In re E.K.S.,
the adoptive parents initiated proceedings in October 2014 in juvenile court to
terminate mother’s parental rights. The juvenile court judge denied
court-appointed counsel to the mother. The judge based his ruling on Utah Code
section 78A-6-1111(2), which earlier in 2014 had been amended by the Utah
Legislature to state: “Counsel appointed by the court may not provide
representation as court appointed counsel for a parent or legal guardian in any
action initiated by, or in any proceeding to modify court orders in proceeding
initiated by, a private party.”
[i]
Both parents were represented by the same appellate attorney
in their appeals, and the arguments presented in both appeals were similar,
namely, that denying counsel to the parent had violated the parent’s federal
constitutional right to due process and equal protection. (Other arguments
presented in one or both cases included ineffective assistance of counsel and
violation of state due process.) Finding that federal due process provided the
necessary redress for the parent in both cases, the Court did not reach the
other arguments.
Ruling
The Utah Supreme Court reversed and remanded both cases,
finding that in both cases the parent’s federal constitutional right to due
process was violated by the denial of counsel. The Court’s rulings relied on
the United States Supreme Court’s ruling in
Lassiter
v. Department of Social Services, 452 U.S. 18 (1981). In
Lassiter v. Department of Social Services,
a state social services department brought a parental rights’ termination
action against a mother. Mother was denied counsel at the lower court
proceedings and argued on appeal that the denial was a violation of her federal
constitutional rights to due process because she was indigent. In addressing
her argument, the Court declined to find that due process always required
appointment of counsel in indigent parental rights’ termination cases. Instead,
the Court set forth the following standard, now enshrined as the
Lassiter analysis (which builds upon the
familiar
Mathews v. Eldridge test).
[ii]
To decide what is required by due process, a court must consider the private
interests at stake, the state’s interest, and “the the risk that the procedures
used will lead to erroneous decisions.”
[iii] After weighing these three
factors against each other, a court must “set their net weight in the scales
against the presumption that there is a right to appointed counsel only where
the indigent, if he is unsuccessful, may lose his personal freedom.”
[iv]
While the Court held, after conducting its analysis, that
Ms. Lassiter’s due process rights were not violated by denying her counsel, the
Court also stated that “[i]f, in a given case, the parent's interests were at
their strongest, the State's interests were at their weakest, and the risks of
error were at their peak, it could not be said that the
Eldridge factors did not overcome the presumption against the right
to appointed counsel, and that due process did not therefore require the
appointment of counsel.”
[v]
After conducting the
Lassiter
analysis in
In re K.A.S., the Utah
Supreme Court determined that federal due process required appointment of
counsel for the father, and those rights were in fact violated when counsel was
denied. In reaching this conclusion, the Court observed that the state had a
weak pecuniary interest in avoiding the cost of appointed counsel, as well as a
shared interest with the father “in the welfare of the child” and arriving at
an “accurate and just decision.”
[vi]
The Court found that the father’s interest was very strong, constituting a
“fundamental liberty interest” protected by the United States Constitution and
Utah public policy.
[vii]
The Court found it important that, contrary to Ms. Lassiter, who had demonstrated
“few sparks of . . . interest” in her child,
[viii]
K.A.S.’s father had sought “for years ‘to contact or have contact with [K.A.S.]
. . . .’”
[ix]
In assessing the risk of error, the Utah Supreme Court found
it to be significant, citing the facts that the father had initially been
appointed counsel only to have counsel subsequently removed and that the father
was incarcerated, which “led to significant communication difficulties and at
times even [the father’s] inability to attend proceedings, either in person or
telephonically.”
[x]
Having completed its analysis, the Court concluded that the
father’s right to due process had been violated by denying him counsel. “When
balancing these interests in favor of appointing counsel against the State’s
relatively weak, albeit legitimate, pecuniary interest in not appointing
counsel, the equation clearly comes out in favor of appointing counsel. And
when we add the significant risks of error to this balance, it becomes
abundantly clear that the
Eldridge
factors favor a right to counsel in this case.”
[xi]
The Utah Supreme Court only conducted the
Lassiter analysis in
In re K.A.S., instructing the lower
court in
In re E.K.S. to review the
Court’s analysis for guidance on remand.
[xii]
Implications
The rulings in
In re
K.A.S. and
In re E.K.S. instruct
courts, both district and juvenile, to conduct a
Lassiter analysis in parental rights termination cases to determine
whether federal due process requires the appointment of counsel for an indigent
parent.
[xiii]
The opinions are most remarkable, however, for this reason:
while one might assume, as Associate Chief Justice Lee argued in his dissent in
In re K.A.S., that the
Lassiter presumption against the
appointment of counsel means appointment of counsel should not be the regular
outcome of a
Lassiter analysis,
[xiv]
the majority in
In re K.A.S.
disagreed. They ruled that a court’s responsibility is to conduct the Lassiter
analysis faithfully, and if the analysis supported appointing counsel, counsel
should be appointed, no matter how frequently this outcome occurs.
[xv]
As the majority stated, “
Lassiter
nowhere implies that the effect of this presumption is that if courts regularly
find a right to appointed counsel in parental-rights termination proceedings
they are doing it wrong.”
[xvi]
Furthermore, the majority seems to believe that a Lassiter
analysis will generally lead to the conclusion that counsel does need to be
appointed in parental rights termination cases to satisfy due process. While
Associate Chief Justice Lee thought that the facts in
In re K.A.S. amounted to a “garden-variety parental termination
case,”
[xvii]
the majority determined appointed counsel was required by due process. The
majority went on to state, “[I]t would not surprise us if the presumption
against the right to appointed counsel in civil cases were overcome with
greater frequency in parental-rights termination proceedings than in other
contexts where the stakes are lower and the core issue in the proceedings is
less complicated than whether to sever the parent-child relationship . . . .”
[xviii]
In short, the anticipated impact of these recent rulings is
that courts will conclude in most, if not all, parental rights termination
cases, that an indigent parent should be appointed counsel to meet his or her
rights to federal due process. This outcome is required by statute in
state-initiated proceedings
[xix]
and seems to be the Utah Supreme Court’s anticipated outcome in
privately-initiated proceedings, post-
In
re K.A.S.[xx]
Prior to the case coming down, members of the Utah Parental
Defense Alliance had been meeting with Utah state legislators exploring the
best resolution for the state’s parental defenders. These rulings from the Utah
Supreme Court, however, negate the impact of those efforts. Obviously, the
concern for the practitioner is a potential avalanche of new cases being
assigned to represent indigent parents in private termination proceedings. The
concern for counties will be the extra expense of increased contracts with
practitioners.
In a follow-up article, we will explore the situation in
which a district court or juvenile court were to conduct a Lassiter analysis and determine due process did not require the
appointment of counsel. For now, we’ll simply state that such an outcome would
likely lead to an appeal by the parent under federal equal protection or state
equal protection and/or due process.
(Mark and Chandler are
attorneys with Tanner & Tanner Law, LLC and represented the prospective adoptive
parents in In re E.K.S.)
[i]
This statute was amended earlier this year to permit a court to conduct the
analysis required by federal due process.
[ii]
424 U. S. 319, 335 (1976).
[vi]
2016 UT 55 at ¶ 27 (quoting Lassiter,
452 U.S. at 27).
[vii] 2016 UT 55 at ¶ 25 (quoting Utah Code § 62A-4a-201(1)(c)).
[viii]
Lassiter, 452 U.S. at 32-33.
[ix]
2016 UT 55 at n. 10.
[x]
2016 UT 55 at ¶¶ 31 - 32. In Lassiter,
the United States Supreme Court also identified the use of expert medical and
psychiatric testimony as additional factors that may increase the risk of
error. 452 U.S. at 30.
[xii] 2016 UT 56 at ¶ 24.
[xiii]
2016 UT 55 at ¶ 40; 2016 UT 56 at ¶ 25.
[xiv] Associate Chief Justice Lee argued that the majority’s opinion “turns
. . . [the Lassiter] presumption on
its head.” 2016 UT 55 at ¶ 48 (Lee, A.C.J. dissenting)
[xvii] Id. at ¶ 71 (Lee, A.C.J.
dissenting).
[xix] Id. at n. 11; Utah Code
section 78A-6-1111(1)(c).
