Iowa Supreme Court says statutory limitations on adoption right to counsel are invalid

01/01/2014, Legislation, Termination of Parental Rights (Private) - Birth Parents

In response to the Iowa Supreme Court's decision in In re S.A.J.B., 679 N.W.2d 645, 648 (Iowa 2004) (finding that statutory scheme of denying counsel in adoption cases while granting it in state-initiated terminations violated equal protection), the legislature amended the adoption statute. Iowa Code § 600A.6A now says that in a Chapter 600A petition to terminate parental rights, "the parent identified in the petition shall have the right to counsel in connection with all subsequent hearings and proceedings" and that "[i]f the parent [identified in the petition] desires but is financially unable to employ counsel, the court, following an in-court colloquy, shall appoint counsel for the person" provided certain criteria are met.

 

The criteria for eligibility, however, somewhat limit the scope of the right. The parent must both request the counsel and demonstrate indigence, which are standard, but the court must also determine both of the following:

 

(1) The person, because of lack of skill or education, would have difficulty in presenting the person's version of the facts in dispute, particularly where the presentation of the facts requires the examination or cross-examination of witnesses or the presentation of complex documentary evidence. (2) The person has a colorable defense to the termination of parental rights, or there are substantial reasons that make termination of parental rights inappropriate."

 

However, in Crowell v. State Public Defender, 845 N.W.2d 676 (Iowa 2014), the Court held that the passage of Iowa Code § 600A.6A did not affect its constitutional ruling in S.A.J.B., and that all parents are still entitled to appointed counsel in private termination proceedings. The court rejected the state's call to overrule S.A.J.B. or find that the statute satisfied constitutional requirements. Thus, the limiting provisions are essentially a nullity.