K.A.S. was born in 2008. The child’s mother and her husband, the child’s stepfather, filed an adoption petition in district court in September 2013. The child’s biological father, L.E.S., was served with a Notice of Adoption Proceedings in September 2013, informing him that he needed to respond within 30 days if he wished to intervene in the adoption case. L.E.S., representing himself pro se, served notice in October 2013, that he intended to contest the adoption. The mother and stepfather then moved to terminate his parental rights.

The matter of the parental rights termination was set for hearing in December 2013. Stepfather appeared and was represented by counsel. The biological father appeared unrepresented, having been transported from the Uintah County jail, where he was incarcerated.

The court questioned L.E.S. about his income and assets and found him to be indigent. Under these circumstances the Court noted that if the case had been brought in juvenile court, the parent whose rights were sought to be terminated would qualify for the appointment of a free attorney. The Court then inquired of the Uintah County Attorney whether the biological father was entitled to the appointment of an attorney at the county’s expense. The attorney responded that yes, he thought so. The Court then appointed an attorney for L.E.S. at the county’s expense.

The county attorney, upon further legal and financial consideration, filed a motion to intervene in the case and argued that his prior opinion had been wrong and contrary to law; and that in fact an indigent parent whose rights were at stake in a termination case in district court did not have a right to a court appointed attorney. The court-appointed attorney did not challenge this motion. The court granted the motion.

L.E.S., having been divested of his attorney and representing himself pro se, filed a motion to continue the scheduled trial date so as to attempt to obtain private counsel. The motion was denied, and the hearing went forward in September 2014, with L.E.S. being transported from the county jail for the hearing. Following the hearing the district court terminated L.E.S.’s parental rights, holding that it was in the child’s best interests to be adopted by the stepfather. L.E.S. appealed. The case was certified to the Utah Supreme Court.

On appeal, L.E.S. raised 4 issues; namely: 1) ineffective assistance of counsel, 2) due process under the 14th Amendment of the U.S. Constitution, 3) equal protection under the 14th Amendment of the U.S. Constitution, and 4) due process under the Utah state constitution.

The problem was that L.E.S. had failed to preserve these issues in the district court. His court appointed attorney had not opposed the county’s motion to disallow an attorney paid for by the county. Usually, if an issue is not preserved in the trial court, the ability to raise that issue for the first time on appeal is permanently precluded.

There are limited exceptions to this preservation rule. One of these is the plain error doctrine, which applies when the trial court has made a clear and prejudicial error. But this exception did not apply to the case at hand. Another exception is that of ineffective assistance of counsel. But this exception did not apply because L.E.S. had represented himself at the termination hearing without the benefit of counsel.

Nevertheless, the Court held that another exception applied, namely that of “exceptional circumstances.” This is a narrow exception that only applies in very unique cases, such as where there have been “rare procedural anomalies”, and the failure to allow the issue(s) to be heard would result in “manifest injustice.”

In the instant case, the extraordinary circumstance was that L.E.S. had been effectively deprived of the opportunity to meaningfully challenge the denial of a right to appointed counsel. Procedurally, the court had initially appointed counsel for him, but had then reversed that decision, leaving him to his own devices.

L.E.S.’s appointed attorney had failed to oppose the motion to have him removed from the case. It is axiomatic that L.E.S. could not have raised legal issues or arguments except through his attorney. Under normal circumstances, his remedy may have been a claim against his attorney for failure to effectively advance his interests (such as a negligence or malpractice claim). But such a remedy would have been hollow and ineffectual for L.E.S., as it would not have restored his parental rights.

Because the court found an exception to the preservation rule, it proceeded to hear and decide the appeal on its merits. The salient case with respect to the federal due process right to appoint of counsel was Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court agreed with L.E.S.’s contention that the trial court had erroneously failed to consider the Eldridge factors as applied by the Supreme Court in the Lassiter case.

The U.S. Supreme Court case of Matthews v. Eldridge, 424 U.S. 319, 335 (1976), held that there were three key elements to consider in deciding a federal due process right to counsel for an indigent parent in a termination of parental rights case; to wit: 1) the private interests at stake in the case, 2) the government’s interests, and 3) the risk of an erroneous decision.

The court needs to weigh and balance these factors against each other in deciding whether there is a right to appointment of counsel in any individual case. It is not automatic that a mere finding of indigence will result in the appointment of counsel in a termination case, because there is a presumption against appointment of counsel in civil cases (although there is always the right to appointed counsel in criminal cases for indigent defendants).

Where the interests of the parent are strong, the relative interests of the state in avoiding appointment of counsel are weak, and the risk of an erroneous decision is high, the Eldridge factors overcome the presumption against appointment of counsel.

In the instant case, the court held that the factors weighed in favor of appointment of counsel for L.E.S. He was accused of lacking interest in his child and of failing to enforce his parent-time rights. He had argued in response that he was concerned that his history of substance abuse would prejudice him if he were to bring a court action. Thus, his interest in having lawyerly protection against possible criminal implications was high.

The state always has at least two opposing interests in a termination case: 1) avoiding the cost of appointed counsel, and 2) ensuring a correct outcome that is in a child’s best interests. In the instant case, the Court found that the latter interest predominated.

Although the case was not terribly complex and did not involve any expert witnesses, such as a child psychologist, there was still a strong interest in making sure a correct decision was made. On balance, therefore, the Court found that L.E.S. had the right to appointment of counsel.

The well-written and tightly-reasoned dissent was even longer than the majority opinion. The dissenting Justice expressed the belief that the Court should jettison its “exceptional circumstances” exception to the preservation rule, as there is no readily articulable standard for when it should apply, and therefore it ends up simply being an exception the Court applies when it feels compelled to do so.

The dissenting justice set forth the opinion that the Court should have analyzed the case initially through the lens of the state constitution. He felt the notion of due process at the time of the adoption of the state constitution would not have embraced the right to appointment of counsel for an indigent defendant in a parental rights termination case.

Citing Magna Carta, the dissent set out the idea that due process is essentially synonymous with the concept of the “law of the land” as it has been reinterpreted and refined over the centuries since the time of King John of England, with the accretion of principles such as traditional notions of fair play and substantial justice, and the right to notice and the opportunity to be heard. (Of course, I am greatly simplifying the dissent’s more sophisticated and detailed reasoning for the sake of brevity in this blog).

The dissenting opinion further expressed the concern that the majority opinion was so broad and liberal in its application of the Eldridge factors that it would effectively require the appointment of counsel for any indigent defendant in a parental rights termination case. As such, it would become an exception that would swallow the rule. This appears to have been a prescient prediction.

Ultimately, the dissent would not have found the right to appointment of counsel for L.E.S. The case was a fairly ordinary, run-of-the-mill termination matter with no unusual factors such as expert witnesses, or other complications that would overcome the presumption against the right to appointment of counsel in a civil case.

See In the Matter of the Adoption of K.A.S., 2016 UT.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.