An Argument for Due Process and Equal Protection When Parental Rights Are Terminated in Private Civil Actions
By Amie K. Wilcox
(Originally published in Arkansas Lawyer Sept. 1, 2021)
An indigent birth parent who seeks to protect her parental rights is not entitled to appointed counsel in only one instance – if she objects in a private adoption. Act 599 of 2021 gives her the right to counsel if she consents to the adoption. And Ark. Code Ann. § 9–27–316(h) provides a right to appointed counsel in dependency and neglect proceedings brought by the state. However, the indigent birth parent who desires to contest a private adoption and protect her rights has no right to assistance of counsel.
That issue, which the Arkansas Supreme Court declined to address in Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580, continues to present itself in Arkansas courts, and the courts of other states have addressed the issue in the constitutional context of due process and equal protection. This article suggests the time has come to address it in Arkansas, particularly given the adoption of Act 599.
The Development of the Right to Counsel
The Due Process Clause of the Fourteenth Amendment to the United States Constitution states: “No state shall . . . deprive any person of life, liberty, or property, without due process of law.” Likewise, Section 8 of the Arkansas Constitution provides that “No person shall . . . be deprived of life, liberty or property, without due process of law.”
The Supreme Court determined in Lassiter v. Department of Social Services of Durham County that whether due process requires the appointment of counsel in a parental-termination proceeding is a matter for the trial court to determine on a case-by-case basis, subject to appellate review.  In making such determination, the trial court must utilize the balancing test articulated in Mathews v. Eldridge. These factors weigh (1) the private interests at stake, (2) the government’s interest in the matter, and (3) the risk that the procedures used will lead to an erroneous decision. In Lassiter, the Court observed that the parent’s interest is one of utmost importance, as is the state’s interest in the welfare of the child. These factors comprise the judicial scale that balances the factors’ net weight against the presumption that there is a right to appointed counsel only where an issue of fundamental fairness is at stake comparable to the loss of the individual’s personal liberty.
In analyzing the Mathews factors, the Lassiter Court recognized “a parent’s desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” In cases involving the termination of parental rights, this interest is not simply infringed upon; it is obliterated.
The Court noted that the state would share the indigent parent’s interest in obtaining a just and accurate decision in the best interest of the child. The Court also recognized the state’s pecuniary interest – particularly if providing funding for the indigent parent’s counsel. However, the Court confirmed that interest “is hardly significant enough to overcome private interests as important” as those in a case where a parent’s rights are subject to termination. Finally, the Court noted that strong consideration should be given to the risk that a parent will be erroneously deprived of his or her child because the parent was not represented by counsel. In particular, the Court noted that indigent parents “are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation. That these factors may contribute to overwhelm an uncounseled parent is evident.
” The Supreme Court later applied these factors in Turner v. Rogers, re-articulating the constitutional due process requirements and the responsibility of the trial court to address such.
As noted by the Arkansas Supreme Court in Bearden v. State Dep’t of Human Servs., Arkansas has codified state-conferred certain statutory rights to counsel outlined below, which are distinct from any due process right to counsel. The Bearden court affirmed that the due process right to counsel arises if the circumstances of the particular case indicate that fundamental fairness requires the appointment of counsel, as determined utilizing the Mathews factors.
Arkansas guarantees the right to counsel in dependency-neglect cases brought by the state:
In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian.
Notably, even a putative parent has the right to appointed counsel in these proceedings where the court finds on the record that the putative parent is indigent.
Act 599 now additionally provides that parents whose consent is required for adoption “shall have limited, independent legal representation” for the purposes of executing the consent to adoption or withdrawing the consent to adoption. The consenting parent is able to waive this right by affidavit.
Act 599 highlights the inequity faced by parents who do not consent to a private adoption. The right to counsel exists for indigent parents fighting for their children in dependency and neglect proceedings and for parents who are consenting to a private adoption, but not for parents who choose to contest the termination of their parental rights in a private adoption. Yet the parental interests at stake are the same.
Since the Supreme Court’s decision in Lassiter, courts across the United States have examined whether an indigent parent has an absolute right to appointed counsel in parental rights termination cases based on procedural due process. A number of jurisdictions have ruled in favor of appointed counsel for indigent parents in private adoption proceedings.
These decisions have not only been based on due process, but also equal protection. Many state supreme courts have ruled that providing counsel to parents in state-initiated termination proceedings, but denying it in private terminations, is a violation of equal protection. In Arkansas, the likelihood that the absence of the right to counsel for indigent parents in contested private adoption proceedings violates equal protection is now stronger given the new rights available to indigent parents who consent to private adoptions. With this expansion, it is becoming increasingly unlikely that the State of Arkansas can successfully show a legitimate government interest furthered by such differential treatment.
Lucas v. Jones
The Arkansas Supreme Court has not directly addressed the right to counsel for indigent parents in private adoptions, having declined to do so in Lucas v. Jones based on procedural considerations. The underlying facts of Lucas highlight the compelling parental interests that underscore the necessity for a right to counsel for indigent parents in all parental termination proceedings.
Lucas entered into an agreed order of permanent guardianship, allowing her adoptive parents to assume custody of her daughter, J.J., on April 23, 2008. At the time of the guardianship order, J.J. was nearly three years old. Lucas’s parents sought to adopt J.J. two years later, alleging that Lucas had, without justifiable cause, neither visited nor provided support for the child in over one year. Lucas was transparent in the adoption proceedings that while she is an alcoholic, she had been sober at all times relevant to the adoption proceedings.
Lucas filed a pro se answer to the petition for adoption, denying the material allegations. Lucas and her parents offered conflicting testimony as to whether Lucas had called and
attempted to visit the child, whether Lucas was threatened to stay away from the child, and whether the appellees refused to let Lucas speak to or visit the child.
Lucas filed a motion for continuance, in which she requested a continuance to allow her time to seek an attorney. The motion for continuance stated in relevant part:
Defendant respectfully requests that this Court continue this matter in order for Defendant to seek legal counsel.
Defendant has requested legal aid from Legal Aid of Arkansas and received a response dated February 7, 2011 (a copy attached hereto). Defendant was advised to request the Court to have an attorney appointed by the Court. . . If Defendant needs to provide additional information or documentation please advise.
Lucas attached a letter received from a lawyer with Legal Aid of Arkansas, who was not able to accept her request for representation. The letter included the following:
Since this is an action to terminate your parental rights there may be arguments that you are entitled to have an attorney appointed for you. I would strongly suggest that you ask the judge to give you an appointed attorney. If the judge goes through with the adoption without giving you an appointed attorney you could re-contact us as that is a matter we might very well wish to litigate further.
The court entered an order denying the motion for a continuance without comment. A hearing on the petition for adoption was then held on November 16, 2011, at which the adoption was granted over Lucas’s objection.
As raised by counsel on appeal, Lucas’s motion for continuance could only be read as Lucas pursuing the recommendation to request appointed counsel when viewed fairly in the context of an unrepresented person attempting to preserve a fundamental parental right to which the constitutional rights of due process and equal protection attach. Counsel argued that Lucas did request appointed counsel and that the circuit court effectively denied her request in denying her motion for continuance.
The Arkansas Supreme Court determined that because Lucas’s stated reason for the delay was so that she could “seek” counsel, not obtain the appointment of counsel, the equivocal nature of her statements did not amount to a clear request for representation by an attorney. Thus, the court declined to address the constitutional issues raised.
If the Lucas court had construed and accepted Lucas’s statements for what they were, a request for appointed counsel, and applied the Mathews factors as required by Turner and Lassiter, the resulting analysis should have established that Lucas’s right to counsel was required by her constitutional right to due process. As reflected by her counsel on appeal, a “review of the hearing transcript reveals a determined mother trying to save her parental rights but without the knowledge or acumen to do so.” The state of the law remains unchanged for similarly situated parents, despite the recognition of the right to counsel in other states.
Next Steps Toward A Judicial Ruling on the Right to Counsel
So how can the issue of a right to counsel reach the Arkansas Supreme Court for decision? The Arkansas Lawyer is not directed at indigent parents and it is unlikely that this article will find its way to them. Rather, the first step is for the bench and bar to have this issue in mind when the factual scenario presents itself.
Turner v. Rogers allows a court to address the issue sua sponte and even appoint pro bono counsel to advance the issue of the right to appointed counsel in a limited scope representation permitted by Arkansas Rule of Professional Conduct 1.2(c).
Whether appearing pro se or represented by an attorney, the indigent party must make a clear request for appointed counsel. As Lucas illustrates, a request for a continuance to seek counsel, even coupled with a letter from a Legal Aid lawyer advising the party of a right to appointed counsel, is not sufficient. Therefore, a statement must be made like the following:
I am indigent and cannot afford to pay a lawyer. I request that counsel be appointed for me under my constitutional rights of due process and equal protection guaranteed in the United States and Arkansas Constitutions.
Based on Turner, a trial judge can clarify what a pro se party is asking, but it is imperative that the party or appointed lawyer obtain a ruling on the request for counsel to preserve the issue for appeal. Because Arkansas does not have a plain error rule, Lucas instructs that the failure to obtain a ruling at the trial court level can be fatal.
A Legislative Solution
Although the protection of constitutional rights is the province of the courts and not the legislature, various states have addressed the right to counsel in private adoption proceedings by legislative act. Yet, even when the legislature speaks, for example on the right to counsel in dependency and neglect cases, but does not extend the right to counsel to private adoption proceedings, some courts avoid the constitutional issue and say that the matter of a right of indigent parents to counsel in private adoptions is for the legislature. Accordingly, one immediate way to establish a right to counsel for indigent persons whose parental rights are being terminated in a private adoption is to create the right by statute as was done with a limited focus by Act 599. This could be easily accomplished by expanding Act 599 to apply to contested adoptions.
“Termination of parental rights is an extreme remedy and is in the derogation of the natural rights of the parents.” In a state committed to constitutional due process and equal protection, indigent persons whose parental rights are subject to termination in a private adoption should not be treated differently than the same persons in dependency and neglect proceedings brought by the state or from indigent parents who are consenting to the adoption.
In the end, it is the state, acting through its courts that is terminating parental rights. Meaningful access to justice through a right to counsel should not depend on the nature of the proceeding or whether or not the parent choses to fight for his or her fundamental right to parent.
Amie K. Wilcox joined the firm after earning her law degree from the University of Arkansas at Little Rock William H. Bowen School of Law. Her practice is focused in the area of healthcare where she works primarily on various corporate and compliance matters. She drafts and reviews policies to ensure compliance with federal healthcare regulations such as HIPAA, Stark I and Stark II, Anti-Kickback and Medicare/Medicaid reimbursement. Amie’s clients include hospitals, physician groups and other medical service providers.
 Ark. Const. art. 2, § 8.
 Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 101 S. Ct. 2153 (1981), reh’g denied, 453 U.S. 927, 102 S. Ct 889 (1981).
 Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976).
 Lassiter, 452 U.S. at 31 . [Anna – Please ask the author to double check this; page 16 cannot be correct, because the case starts on page 18.]
 Id. at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651).
 Id. at 30.
 Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507 (2011).
 Bearden v. State Dep’t of Human Servs., 344 Ark. 317, 324-325, 42 S.W.3d 397, 401-402 (2001).
 Ark. Code Ann. § 9-27-316(h)(1)(B).
 Id. at § 316(h)(4).
 See Act 599 (notably, this right to counsel does not apply in stepparent, grandparent, or pro bono adoption proceedings).
 See Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001).
 See, e.g., In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of Meaghan, 461 Mass. 1006, 961 N.E.2d 100 (2012); In re Jay, 197 Cal. Rptr. 672 (Cal. Ct. App. 1983); O.A.H. v. R.L.A., 712 So. 2d 4 (Fla. Ct. App. 1993); G.C. v. W.J., 917 So. 2d 998 (Fla. Ct. App. 2005); In re K.L.P., 763 N.E.2d 741 (Ill. 2002); Matter of Adoption of K.A.S., 499 N.W.2d 558 (N.D. 1993); Zockert v. Fanning, 800 P.2d 773 (Or. 1990); O.A.H. v. R.L.A., 712 So. 2d 4 (Fla. Ct. App. 1998); G.C. v. W.J., 917 So. 2d 998 (Fla. Ct. App. 2005).
 See e.g. In re Adoption of Meaghan, 461 Mass. 1006, 961 N.E.2d 100 (2012).
 Brief of Appellant at Add. 8, Lucas, 2012 Ark. 365 (emphasis added).
 Lucas, 2012 Ark. 365 at 3 (emphasis added).
 Id. at 2.
 Reply Brief of Appellant at 1-2, Lucas, 2012 Ark. 365.
 Brief of Appellant at 9, Lucas, 2012 Ark. 365.
 See also Gordon v. Draper, 2013 Ark. App 352, *7, 428 S.W.3d 543, 546 (“Because that question was not an explicit request for counsel, he failed to preserve the issue for appeal”).
 Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
 “The question of what procedures are necessary to protect a right is a question of constitutional law for a judge, not a question to be determined by state legislatures.” Cabinet for Health & Family Services v. K.S., 610 S.W.3d 205, 213 (Ky. 2020) (citing Cleveland Bd of Ed. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (“[T]he right to due process is conferred, not by legislative grace, but by constitutional guarantee”)).
 E.g., Johnson v. Hauck, 344 Ga. App. 848, 854, 812 S.E.2d 303, 308 (2018).
 Linker-Flores v. Arkansas Dep’t of Human Services, 359 Ark. 131, 137, 194 S.W.3d 739, 744 (2004); See also In re Adoption of Parsons, 302 Ark. 427, 431-32, 791 S.W.2d 681, 683 (1990) (“Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. We have long given careful protection to a natural parent’s rights”).