L.E.S. v. C.D.M. (In re K.A.S.), No. 20140966

CourtSupreme Court of Utah
Writing for the CourtJustice Himonas, opinion of the Court
Citation390 P.3d 278
Parties In the Matter of the ADOPTION OF K.A.S., a minor L.E.S., Appellant, v. C.D.M. and M.K.M., Appellees.
Docket NumberNo. 20140966
Decision Date06 December 2016

390 P.3d 278

In the Matter of the ADOPTION OF K.A.S., a minor

L.E.S., Appellant,
v.
C.D.M. and M.K.M., Appellees.

No. 20140966

Supreme Court of Utah.

Filed December 6, 2016


390 P.3d 281

Marshall Thompson, Salt Lake City, for appellant.

Jordan R. Van Oostendorp, Vernal, for appellees.

Sean D. Reyes, Att'y Gen., John M. Peterson, Asst. Att'y Gen., Tyler R. Green, Solic. Gen., Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, amicus curiae.

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant and Justice Pearce joined.

Justice Durham filed a concurring opinion.

Associate Chief Justice Lee filed a dissenting opinion.

On Direct Appeal

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 This is an appeal from a parental-rights termination order entered in the district court. On November 24, 2014, the district court terminated L.E.S.'s parental rights with respect to K.A.S., making K.A.S. legally available for adoption by her stepfather, C.D.M. L.E.S. appealed the termination order to the Utah Court of Appeals, which subsequently certified the case for transfer to the Utah Supreme Court. The issues presented on appeal are a claim of ineffective assistance of counsel and claims to the right to counsel under the Equal Protection Clause of the Fourteenth Amendment, under the Due Process Clause of the Fourteenth Amendment, and under the due process clause of the Utah Constitution. For reasons explained below, we hold that the denial of counsel violated L.E.S.'s federal due process rights and reverse and remand for further proceedings in accordance with this opinion.

BACKGROUND

¶2 On or about September 23, 2013, C.D.M. and M.K.M. filed a petition for adoption in Uintah County, Utah. C.D.M. sought to adopt his stepdaughter, K.A.S, who was born in 2008. L.E.S., K.A.S.'s biological father, was served with a Notice of Adoption Proceedings on September 23, 2013, requiring him to respond within thirty days if he intended to intervene in or contest the adoption. On or about October 2, 2013, L.E.S., acting pro se, gave notice that he contested the adoption. C.D.M. and M.K.M. then moved to terminate L.E.S.'s parental rights.

¶3 The case was set for trial for termination of parental rights on December 10, 2013. M.K.M. was present with counsel. L.E.S. was present in custody, pro se, having been transported from the Uintah County Jail, where he was incarcerated at the time. Upon questioning L.E.S. about his income and assets, the district court found that he "would qualify for court appointed counsel if this were in the Juvenile Court but question[ed] whether [that statutory right to court-appointed counsel] applies to [the] District Court."1 The district court discussed L.E.S.'s right to counsel with Deputy County Attorney Michael Drechsel, who "agreed that Uintah County would be obligated to pay for an attorney to represent the indigent father." Based on Mr. Drechsel's input, the district court appointed counsel for L.E.S.

¶4 On January 24, 2014, Mr. Drechsel filed a motion to intervene on behalf of Uintah County, asserting that his representations "were made in error and contrary to law" and that there was no right to court-appointed counsel for an indigent party in district court proceedings involving the termination of parental rights. In that motion, he requested that the district court reverse its decision to appoint counsel and that it then dismiss Uintah County from the action. No opposing memoranda were filed by any party. L.E.S.'s court-appointed counsel did not respond or request a hearing on the issue, and L.E.S., because he was represented at the time, did not have an opportunity to oppose the motion pro se. See infra ¶ 20. On February 19, 2014, the district court granted the motion to intervene, reversing the appointment of counsel.

390 P.3d 282

¶5 The district court held a number of court conferences over the next few months, during which time L.E.S. unsuccessfully attempted to retain counsel. On April 10, 2014, a status conference was held, and the district court set a telephonic scheduling conference with L.E.S., who was then incarcerated at the Utah State Prison, for April 22, 2014. L.E.S. was also informed that he should retain counsel if he so desired.

¶6 At the April 22, 2014 scheduling conference, L.E.S., participating by telephone, requested additional time to retain counsel.

¶7 An attorney review hearing was held on June 3, 2014, which L.E.S. also attended telephonically. At this hearing, L.E.S. indicated that he "believe[d] his family [was] taking care of his counsel for him but [that he had] not been able to speak with them." The district court set a status conference for June 9, 2014, in order to allow L.E.S. more time to speak with his family.

¶8 At that status conference, where L.E.S. was present from prison, the district court noted that L.E.S. "had difficulty contacting family or counsel due to the prison telephone policies to make arrangement[s] to retain counsel." The district court asked an attorney who was serving as counsel for L.E.S. in a juvenile court case to contact L.E.S.'s family in order to "understand where they stand with making counsel arrangements for [L.E.S.] and report back to the [c]ourt." The district court also "ask[ed] the prison to allow [L.E.S.] telephone privileges so he can talk with lawyers and/or family members so this [c]ourt can move this matter along."

¶9 On June 17, 2014, L.E.S.'s juvenile court counsel reported to the district court that L.E.S.'s family was working on obtaining counsel and that they requested additional time. L.E.S.'s sisters were present and requested "notification of all hearings to try and help the[ir] brother due to communication issues with [L.E.S.] in prison."

¶10 Another status conference was held on June 30, 2014. L.E.S. was supposed to attend telephonically but "was not available by telephone due to changes in probation officers at the prison." L.E.S.'s sisters were present and reported that they had talked with a lawyer, Ms. Bradley, who needed to speak with L.E.S. The district court noted that L.E.S. was "to sign a waiver to allow his sisters to have access to court records to help with his defense." The district court scheduled a bench trial for the termination proceeding for September 26, 2014.

¶11 On July 22, 2014, yet another status conference was held "to check the status of counsel for [L.E.S.]." Ms. Bradley had talked with L.E.S. on the telephone right before the hearing and requested additional time to review the information from that telephone meeting.

¶12 The next status conference was held on July 29, 2014. L.E.S. attended telephonically and sought to present a verbal motion for continuance, which the district court asked him to file in writing instead.

¶13 L.E.S. filed his written motion for continuance with the district court on August 4, 2014, requesting to have the matter continued until at least April 29, 2015, when he expected to be released. In his motion, L.E.S. indicated, among other things, that the prison would "not allow [him] phone access for any legal reason based on a conflict they have," that he could "not obtain adequate employment and [did] not have any other means available to [him] ... at the prison that would allow [him] the money to pay for counsel," and that he was "at this time financially incapable of hiring counsel." He represented that he had "one opportunity" to talk with a lawyer but that Ms. Bradley "said she was reluctant to take on the case in fear that because of the [above-mentioned] prison policy she would not be able to provide adequate counsel." C.D.M. and M.K.M. opposed the motion for continuance.

¶14 No oral argument was requested on the matter of the motion for continuance, and on September 2, 2014, C.D.M. and M.K.M. requested that the briefs be submitted for a ruling. On September 5, 2014, the district court issued a ruling and order denying the motion for continuance. The district court based its decision on the following reasons: the matter had "been pending since September 23, 2013"; "[m]ultiple status hearings ha[d] been held in an effort to provide [L.E.S.] the opportunity to find counsel";

390 P.3d 283

L.E.S. had "had ample time to prepare for the trial, or to obtain counsel to represent him at trial"; and a "permanent living environment and a resolution to these proceedings are in the best interest of the minor child."

¶15 On September 8, 2014, the district court held another status conference. L.E.S. was not present. The district court denied the motion to continue and indicated its intent to "[o]rder the state of Utah to transport [L.E.S.] ... for a termination of parental rights hearing on September 26, 2014."

¶16 The termination of parental rights hearing was held on September 26, 2014, and the district court made findings against L.E.S. and found that it was in the best interest of the child for K.A.S. to be adopted by C.D.M. L.E.S. filed a notice of appeal on October 22, 2014. The district court issued its "findings of fact[,] conclusions of law and order" on November 24, 2014, terminating L.E.S.'s parental...

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16 practice notes
  • Kuchcinski v. Box Elder Cnty., No. 20160674
    • United States
    • Supreme Court of Utah
    • June 3, 2019
    ...briefing.68 Salt Lake Legal Def. Ass’n v. Atherton , 2011 UT 58, ¶ 10, 267 P.3d 227 ; see also Adoption of K.A.S. , 2016 UT 55, ¶ 85, 390 P.3d 278 (Lee, A.C.J., dissenting) ("[T]he guarantee of ‘due process’ served as ‘a restraint on the legislative as well as on the executive and judicial ......
  • State v. Johnson, No. 20140794
    • United States
    • Supreme Court of Utah
    • October 3, 2017
    ...an issue that was not properly preserved for appeal would have resulted in manifest injustice." Adoption of K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278 (citation omitted). We apply this exception to reach an unpreserved issue where a "rare procedural anomal[y]" has either prevented an appellant ......
  • State v. Johnson, No. 20140794
    • United States
    • Supreme Court of Utah
    • November 14, 2017
    ...an issue that was not properly preserved for appeal would have resulted in manifest injustice." Adoption of K.A.S. , 2016 UT 55, ¶ 19, 390 P.3d 278 (citation omitted). We apply this exception to reach an unpreserved issue where a "rare procedural anomal[y]" has either prevented an appellant......
  • Neese v. Utah Bd. of Pardons & Parole, No. 20150487
    • United States
    • Supreme Court of Utah
    • December 14, 2017
    ...would apply the historical framework of due process that I have outlined previously. See In re Adoption of K.A.S. , 2016 UT 55, ¶¶ 45–100, 390 P.3d 278 (Lee, A.C.J., dissenting). And I would affirm the district court’s decision dismissing Neese’s claims because I find no basis in the text o......
  • Request a trial to view additional results
16 cases
  • Kuchcinski v. Box Elder Cnty., No. 20160674
    • United States
    • Supreme Court of Utah
    • June 3, 2019
    ...briefing.68 Salt Lake Legal Def. Ass’n v. Atherton , 2011 UT 58, ¶ 10, 267 P.3d 227 ; see also Adoption of K.A.S. , 2016 UT 55, ¶ 85, 390 P.3d 278 (Lee, A.C.J., dissenting) ("[T]he guarantee of ‘due process’ served as ‘a restraint on the legislative as well as on the executive and judicial ......
  • State v. Johnson, No. 20140794
    • United States
    • Supreme Court of Utah
    • October 3, 2017
    ...an issue that was not properly preserved for appeal would have resulted in manifest injustice." Adoption of K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278 (citation omitted). We apply this exception to reach an unpreserved issue where a "rare procedural anomal[y]" has either prevented an appellant ......
  • State v. Johnson, No. 20140794
    • United States
    • Supreme Court of Utah
    • November 14, 2017
    ...an issue that was not properly preserved for appeal would have resulted in manifest injustice." Adoption of K.A.S. , 2016 UT 55, ¶ 19, 390 P.3d 278 (citation omitted). We apply this exception to reach an unpreserved issue where a "rare procedural anomal[y]" has either prevented an appellant......
  • Neese v. Utah Bd. of Pardons & Parole, No. 20150487
    • United States
    • Supreme Court of Utah
    • December 14, 2017
    ...would apply the historical framework of due process that I have outlined previously. See In re Adoption of K.A.S. , 2016 UT 55, ¶¶ 45–100, 390 P.3d 278 (Lee, A.C.J., dissenting). And I would affirm the district court’s decision dismissing Neese’s claims because I find no basis in the text o......
  • Request a trial to view additional results

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