Does an indigent parent in Utah have a right to state-appointed counsel under the United States constitutional guarantee of equal protection in a parental rights termination case? In our previous article discussing two recent Utah Supreme Court cases, In re E.K.S., 2016 UT 15 (Utah 2016) and In re K.A.S., 2016 UT 55 (Utah 2016), we promised to explore this question further.

Both In re K.A.S. and In re E.K.S. were decisions analyzing the rights of an indigent parent to state-appointed counsel when the parent’s rights were being challenged in a termination proceeding. In both cases, the parent had raised due process and equal protection claims that he or she had a right to state-appointed counsel. Because the Utah Supreme Court found that the parent’s due process claims provided the requested relief, the Court did not reach either parent’s equal protection claims. However, in light of the Court’s rulings, an analysis of the equal protection claim is insightful from a practical standpoint. Note that our article is discussing federal equal protection, which differs from the right to equal protection offered under the Utah Constitution. (We’ll save that analysis for another article.) Also, bear in mind that this article is speculative, based on assumptions that may change, and does not constitute legal advice.

Federal equal protection guarantees are found in the Fourteenth Amendment to the United States Constitution: “No State shall . . . deny any person within its jurisdiction the equal protection of the laws.” In Cleburne v. Cleburne Living Center, Inc., the United States Supreme Court explained that this equal protection guarantee means that “all persons similarly situated should be treated alike.” 473 U.S. 432, 439 (1985).

In In re K.A.S. and In re E.K.S., the parents argued that they were being treated differently from other parents who were similarly situated in two scenarios. In In re K.A.S., an indigent father was not provided with state appointed counsel because the proceeding to terminate his parental rights was brought in district court. However, under then existing Utah law, parents whose parental rights were being terminated in proceedings in juvenile court were provided with state-appointed counsel.

Table 1.

Availability of State-Appointed Counsel in District Court vs. Juvenile Court
District Court Juvenile Court
State-Initiated N/A Yes
Privately-Initiated No Yes

In In re E.K.S., the prospective adoptive parents brought a private suit to terminate a mother’s parental rights. The mother was denied state-appointed counsel because under then existing Utah law, state-appointed counsel was not available to parents in a privately-initiated parental rights termination proceeding. However, in proceedings to terminate parental rights initiated by the state of Utah, the Utah code provided that an indigent parent would be provided with state-appointed counsel.

Table 2.

Availability of State-Appointed Counsel in State-Initiated vs. Privately-Initiated
District Court Juvenile Court
State-Initiated N/A Yes
Privately-Initiated No No

Laws changed while In re K.A.S. and In re E.K.S. were proceeding, but based on the outcome of the cases and current statutes, Utah law sets up a potential equal protection argument based on the second scenario. On the one hand, state-appointed counsel is provided by statute to an indigent parent in a state-initiated termination case. Utah Code section 78A-6-1111(1)(c). On the other hand, state-appointed counsel could still be denied to an indigent parent in a privately-initiated termination case: After In re K.A.S. and In re E.K.S., district and juvenile courts are instructed to conduct a Lassiter analysis in a privately-initiated termination proceeding to determine if federal due process requires the appointment of counsel. If a court conducted the Lassiter analysis and concluded that due process did not require appointing counsel for an indigent parent, the parent could then argue that he or she is being treated differently from similarly situated parents in state-initiated cases who are provided counsel.

Table 3.

Availability of State-Appointed Counsel under Current Utah Law
District Court Juvenile Court
State-Initiated N/A Yes
Privately-Initiated Depends on outcome of Lassiter due process analysis Depends on outcome of Lassiter due process analysis

At least three arguments could be raised in response to a parent’s equal protection claim: first, that all indigent parents are not similarly situated; second, that “rational basis” scrutiny applies; and third, that privately-initiated termination proceedings do not constitute sufficient state action to invoke constitutional rights.

We’ll save a discussion of the first two arguments for another article and focus on the third argument, as this is the argument impacted by the recent Utah Supreme Court rulings. In its ruling in In re E.K.S., the Utah Supreme Court held that “because parental rights can be terminated only by the state through a judicial order, all termination proceedings involve state action sufficient to trigger constitutional protections.”

The significance of this ruling is that it opens the path for an indigent parent whose parental rights were terminated in a privately-initiated parental rights termination proceeding to appeal the matter as a violation of the parent’s constitutional equal protection rights, if the parent wasn’t provided counsel at the trial level. In other words, if a judge in a Utah court were to conduct a Lassiter analysis and determine that counsel was not required for the indigent parent to protect his or her due process rights, the parent could still bring an appeal arguing that the court’s decision violated his or her equal protection rights.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.