In the Matter of the Adoption of K.A.S. (L.E.S. v C.D.M. AND M.K.M.)

L.E.S. appealed the order terminating his parental rights in this privately initiated proceeding arguing his motion for appointed counsel should have been granted. The Court, 4(3 justice majority plus one justice concurring)-1, reversed and remanded. The majority first held that while L.E.S. did not preserve the federal due process argument he made on appeal, exceptional circumstances existed to consider it anyway because the motion was initially granted then denied after the prosecutor’s office intervened to argue against the motion, L.E.S.’s attorney did not argue in favor of the motion and L.E.S. was barred from making a pro se argument and he was required to make a sophisticated constitutional argument after the motion was denied. It held that the district court erred in not considering the motion under the controlling United States Supreme Court Lassiter precedent it found L.E.S. indigent and further held that under that precedent appointed counsel was required here as L.E.S. had a strong interest in not having his parental rights terminated, the state had a weak interest in not paying for counsel and it was even weaker here as the case was initiated privately and there was a significant risk of error as several procedural protections available in state initiated cases were not available here and counsel may have made arguments or presented expert testimony and other evidence which could have changed the outcome here. Justice Durham concurred in the analysis but argued the state due process claim should have been decided first. Justice Lee dissented arguing that the exceptional circumstances exception to preservation should be repudiated as there are no clear standards, it has been rarely invoked and allows for arbitrary decision-making by the Court and allowing review here gives a roadmap to avoid perseveration problems by future litigants threatening to swallow up the rules of preservation in the process. He argued the majority’s Lassiter analysis was flawed as it overstated the risk of error as the sole ground for termination in this case was lack of communication which is a straightforward case to try and decide and effectively transforms the Lassiter presumption against appointed counsel into a presumption that appointment is required. He argued the state due process claim failed as the phrase “due process of law” was understood in the 1890s to refer to bedrock legal principals such as notice and fair opportunity to be heard and procedures similar to these used in common law courts in England, appointed counsel was not part of that understanding and in fact the debate on the state provision at eh convention shows that there was no consideration of, let alone support for, appointed counsel in civil cases as part of due process of law.

In re E.K.S. (C.B.S. v J.S.D. and R.A.D.)

C.B.S. appealed the order terminating her parental rights in this private proceeding arguing her motion for appointed counsel should have been granted. The Court reversed and remanded It held that the private proceeding triggered due process as only the state can terminate parental rights. It held the district court erred in relying exclusively on Utah Code 78A-61111(2) to deny the motion without considering the Lassiter factors because due process requires the Lassiter analysis when a parent facing termination of rights is indigent. It rejected a facial challenge to the statutory bar to appointment of counsel in privately imitated termination cases in 1111(2) as there is a due process right to counsel only when the Lassiter factors overcome the presumption against appointed counsel and thus 1111(2) operates constitutionally in at least some instances. The case was remanded for the Lassiter analysis with instructions to follow the Court’s example in the K.A.S. case as to how the analysis should be done.