Iowa Supreme Court says statutory limitations on 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.

 

Additionally, Iowa Code § 600A.6(3) requires that parents be notified of their right to appointed counsel in private termination of parental rights cases.  In M.S. v. C.S., 2018 Iowa App. LEXIS 865 (Iowa App. 2018), the Court of Appeals of Iowa held that a father had not been properly notified of his right to appointed counsel and that “it was improper to hold the termination hearing without proof of this notice in the record.”  The court reversed the termination order and remanded back to the trial court.  It also commented that “it would be the better practice for the court to inquire at the beginning of a private termination hearing where one of the parties is not represented by counsel if the party was aware of the statutory right to be represented by counsel at the hearing.”