This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 56

IN THE

SUPREME COURT OF THE STATE OF UTAH

IN RE E.K.S., a person under the age of eighteen.

C.B.S.,

Appellant,

v.

J.S.D. and R.A.D.,

Appellees.

No. 20150435

Filed December 6, 2016

On Certification from the Utah Court of Appeals 

Seventh Juvenile, Price Dep’t

The Honorable Scott N. Johansen

No. 1107450

Attorneys:

Marshall Thompson, Salt Lake City, for appellant

Mark H. Tanner, Orangeville, for appellees

Sean D. Reyes, Att’y Gen., Bridget K. Romano, Ass’t Att’y Gen., 

Salt Lake City, for amicus Office of the Utah Attorney General

Virginia Ward, Salt Lake City, for amicus Journey of Hope, Inc.

CHIEF JUSTICE DURRANT authored the opinion of the court, in which 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and 

JUSTICE PEARCE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 A mother whose parental rights to her daughter were 

terminated challenges on multiple constitutional grounds the 

statutory scheme that provides appointed counsel for indigent 

parents in state-initiated parental termination proceedings while 
IN RE E.K.S.

Opinion of the Court

2

denying such counsel for indigent parents in privately initiated 

proceedings. C.B.S. (Mother), after having her parental rights 

terminated in a proceeding where she was unrepresented by 

counsel, argues that the statutory scheme at issue is unconstitutional 

as a violation of federal due process and that due process required 

she be appointed counsel during the termination proceedings. We 

hold that while the statutory scheme is not facially unconstitutional, 

the court erred in relying on it to deny Mother’s request for counsel. 

We accordingly reverse in part and remand for further proceedings.

Background

¶ 2 On August 3, 2014, Mother gave birth to her daughter, 

E.K.S. At the time, Mother was on probation and faced additional 

incarceration for probation violations and additional criminal 

activities. After giving birth to E.K.S., Mother entrusted her daughter 

to her sister, J.S.D., and brother-in-law, R.A.D., (collectively, 

Adoptive Parents) to care for E.K.S. until Mother’s release. Soon 

thereafter, Mother failed to comply with the terms of her probation 

and was arrested. On October 27, 2014, the trial court terminated 

Mother’s probation and sentenced her to serve out her original 

sentence, zero to five years. On that day, Adoptive Parents 

petitioned for permanent custody of E.K.S., and the case was 

transferred to juvenile court. After Mother began serving her prison 

term, Adoptive Parents converted their custody petition to a petition 

to terminate Mother’s parental rights. Mother responded to the 

amended petition by denying the allegations and requesting the 

juvenile court appoint an attorney to represent her. Mother’s request 

for court-appointed counsel did not contain any allegation that she 

was indigent.

¶ 3 The juvenile court, by way of an order on February 27, 2015, 

advised Mother that she had a right to counsel, but that “a public 

defender is not available as this is a private petition.” The court’s 

decision was apparently based on Utah Code section 78A-6-1111(2), 

which prohibits the appointment of counsel in private proceedings.1

There was no factual finding by the court as to Mother’s indigency, 

and no indication in the record that the court considered the multi-

_____________________________________________________________

1 At the time of the court’s decision, that section stated: “Counsel 

appointed by the court may not provide representation as courtappointed counsel for a parent or legal guardian in any action 

initiated by, or in any proceeding to modify court orders in a 

proceeding initiated by, a private party.” UTAH CODE § 78A-6-1111(2) 

(2015).
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Opinion of the Court

3

factor analysis outlined in Lassiter v. Department of Social Services.

2

The court then scheduled the termination proceeding for May 14, 

2015. Mother, on two separate occasions, requested that the court 

grant an extension for “anything after July 7, 2015, [her] projected 

release date.” In both requests, she indicated that she was attempting 

to find and hire a lawyer to represent her and was “very limited as to 

what [she] can do in [prison].” Her second petition also indicated she 

was having a difficult time participating in discovery. Adoptive 

Parents opposed the continuance, arguing that Mother’s 

incarceration was one of their bases for seeking a termination of her 

parental rights. 

¶ 4 During the termination proceedings at the juvenile court, 

Mother was unrepresented by counsel. The court denied Mother’s 

requests for continuances on the day of the trial, though it 

specifically addressed only the first request. At the end of the 

proceeding, the juvenile court found by clear and convincing 

evidence that Mother was unfit as a parent and had failed to make 

more than token efforts to become fit. The court also determined that 

the best interests of E.K.S. supported placement with Adoptive 

Parents. Accordingly, the juvenile court terminated Mother’s 

parental rights and awarded custody of E.K.S. to Adoptive Parents. 

Mother appealed, and the court of appeals certified the case to us. 

Standard of Review

¶ 5 The central questions in this case concern the 

constitutionality of Utah Code section 78A-6-1111(2) (2015) and the 

constitutional due process right to appointed counsel in parental 

rights termination proceedings.3 “Constitutional issues, including 

questions regarding due process, are questions of law that we review 

for correctness.”4 We have jurisdiction pursuant to Utah Code 

section 78A-3-102(3)(b).

Analysis

¶ 6 Mother raises both a facial and an as-applied challenge to 

Utah Code section 78A-6-1111(2). She first argues that the statute is 

facially unconstitutional under the United States Supreme Court’s 

_____________________________________________________________

2 452 U.S. 18, 27–32 (1981).

3 Mother has argued that the issues she raises were preserved for 

appeal, which argument Adoptive Parents have not contested. We 

conclude that Mother’s due process arguments were preserved.

4 Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.
IN RE E.K.S.

Opinion of the Court

4

decision in Lassiter v. Department of Social Services.

5 She then argues 

that the statute unconstitutionally prohibited the trial court from 

appointing counsel for her under the due process analysis set forth 

in Lassiter. Although Mother has raised a number of other 

constitutional arguments related to section 1111(2), we find the due 

process issue to be dispositive of this appeal and accordingly do not 

address Mother’s alternative arguments.6 Before addressing the due 

process issue, however, we briefly discuss Adoptive Parents’ 

argument that constitutional protections do not apply in this case 

because there is insufficient state action. 

I. All Termination Proceedings Involve Sufficient State Action to 

Trigger Constitutional Protections

¶ 7 Adoptive Parents argue that “it is not clear that the United 

States Supreme Court would consider the termination of parental 

rights in a privately initiated action the degree of state action that 

inculcates Fourteenth Amendment protections.” This argument goes 

to whether the constitutional provisions cited by Mother even apply 

to this case because it was a private party—and not the State—that 

sought termination of Mother’s parental rights. Without state action,

they argue, the protections of the Constitution do not apply.7

¶ 8 Both we and the federal Supreme Court have made clear 

that there is sufficient state action in privately initiated parental 

termination proceedings to trigger constitutional protections. In 

Swayne v. L.D.S Social Services,

8 we stated that “[a] parent’s rights 

may only be . . . terminated through the power of the state. When a 

private party facilitates a mother’s relinquishment [of a child], . . . the 

party becomes a state actor if it also effectuates the state’s 

termination [of parental rights].”9 Similarly, the United States 

_____________________________________________________________

5 452 U.S. 18 (1981).

6 Mother also argues that the Due Process Clause of the Utah 

Constitution—Article 1, § 7—should be interpreted as providing a 

right to appointed counsel in all termination proceedings and that 

the equal protection clauses of both the United States and Utah 

Constitutions forbid the state from providing a statutory right to 

appointed counsel in state-initiated termination proceedings while 

denying that right in privately initiated termination proceedings.

7 See Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 640 (Utah 1990).

8 Id. (holding that there was sufficient state action to trigger 

constitutional protections in a termination proceeding initiated by a 

private adoption agency).

9 Id. (citation omitted).
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Opinion of the Court

5

Supreme Court in M.L.B. v. S.L.J.10 held that the case “involv[ed] the 

State’s authority to sever permanently a parent-child bond,” despite 

the fact it was a private party who initiated the termination 

proceedings.11 The Court noted that regardless of the initiating party, 

“the challenged state action remains essentially the same: [the 

mother] resists the imposition of an official decree extinguishing, as 

no power other than the State can, her parent-child relationships.”12

As this caselaw makes clear, because parental rights can be 

terminated only by the state through a judicial order, all termination 

proceedings involve state action sufficient to trigger constitutional 

protections. 

¶ 9 Having established that constitutional protections are 

implicated in termination proceedings, we turn to a discussion of the 

constitutionality of Utah Code section 78A-6-1111(2) and of Mother’s 

due process rights under Lassiter v. Department of Social Services.

II. The Juvenile Court Erred by Concluding that Section 78A-6-

1111(2) Prohibited It from Considering Whether to 

Appoint Counsel for Mother

¶ 10 As we discuss below, although we hold that Mother’s facial 

attack on the statute fails, we ultimately conclude that the juvenile 

court erred in its determination that Utah Code section 78A-6-1111(2) 

prohibited the court from considering whether to appoint counsel 

for Mother. Because of this error, the court failed to determine 

whether Mother was indigent and whether due process required the 

appointment of counsel. Accordingly, we reverse in part and remand 

for the juvenile court to make these determinations. We begin our 

discussion by reviewing the controlling precedent, the Supreme 

Court’s decision in Lassiter v. Department of Social Services.

13 We then 

address Mother’s challenges to the applicability of section 1111(2) in 

her case.

A. Under Lassiter v. Department of Social Services, Due Process 

Requires a Case-by-Case Analysis of Three Factors

¶ 11 All parties agree that the juvenile court had a duty under 

Lassiter v. Department of Social Services to determine whether Mother 

was entitled to appointed counsel. In Lassiter, the North Carolina 

_____________________________________________________________

10 519 U.S. 102 (1996).

11 Id. at 116 & n.8.

12 Id. at 116 n.8.

13 452 U.S. 18 (1981).
IN RE E.K.S.

Opinion of the Court

6

Durham County Department of Social Services (Department) sought 

to terminate Ms. Lassiter’s parental rights because she was 

incarcerated for twenty-five to forty years, had neglected her child, 

and had not shown any indication that she was interested in or 

working toward reunification with her child.14 After a hearing, in 

which Ms. Lassiter was unrepresented by counsel, the trial court 

found she had willfully “failed to maintain concern or responsibility 

for the welfare of the minor” and that “it was ‘in the best interests of 

the minor’” to have Ms. Lassiter’s parental rights terminated.15

Ms. Lassiter appealed, arguing “that, because she was indigent, the 

Due Process Clause of the Fourteenth Amendment entitled her to the 

assistance of counsel, and that the trial court had therefore erred in 

not requiring the State to provide counsel for her.”16 After several 

levels of appeal, the Supreme Court granted certiorari to consider 

Ms. Lassiter’s due process argument.17

¶ 12 After reviewing its due process precedent, the Court stated 

that “an indigent’s right to appointed counsel . . . has been 

recognized to exist only where the litigant may lose his physical

liberty if he loses the litigation.”18 The Court thus concluded there is 

a “presumption that an indigent litigant has a right to appointed 

counsel only when, if he loses, he may be deprived of his physical 

liberty.”19 Despite this conclusion, the Court held there may be some 

parental rights termination proceedings—proceedings that bear no 

risk of deprivation of physical liberty—where the circumstances of 

the case rebut the presumption that counsel is required to be

appointed only when there is a risk of incarceration.20 In such 

_____________________________________________________________

14 Id. at 21 (“[T]he Department alleged[] she ‘has not had any 

contact with the child since December of 1975’ and ‘has willfully left 

the child in foster care for more than two consecutive years without 

showing that substantial progress has been made in correcting the 

conditions which led to the removal of the child, or without showing 

a positive response to the diligent efforts of the Department of Social 

Services to strengthen her relationship to the child, or to make and 

follow through with constructive planning for the future of the 

child.’”).

15 Id. at 22–24.

16 Id. at 24.

17 Id.

18 Id. at 25.

19 Id. at 26–27.

20 See id. at 31.
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Opinion of the Court

7

circumstances, when the presumption is overcome, the Court held 

that due process requires that counsel be appointed.

¶ 13 In order to determine whether the presumption is overcome, 

the Court described three relevant factors that must be balanced: 

“the private interests as stake, the government’s interest, and the risk 

that the procedures used will lead to erroneous decisions.”21 Courts 

“must balance these elements against each other, and then set their 

net weight in the scales against the presumption that there is a right 

to appointed counsel only where the indigent, if he is unsuccessful, 

may lose his personal freedom.”22 The Court held that if “the 

parent’s interests were at their strongest, the State’s interests were at 

their weakest, and the risks of error were at their peak,” the 

presumption against the appointment of counsel in non-criminal 

proceedings could be overcome and the party would be entitled to 

court-appointed counsel.23 Thus, the Court “le[ft] the decision 

whether due process calls for the appointment of counsel for 

indigent parents in termination proceedings to be answered” on a 

case-by-case basis.24 And as discussed above, this constitutional 

balancing analysis applies regardless of whether a private party or 

the state initiates the termination proceeding.25

¶ 14 With this due process framework in mind, we turn now to 

our discussion of Mother’s federal due process arguments, which 

center in Lassiter’s case-by-case balancing analysis. We first discuss 

Mother’s argument that section 78A-6-1111(2) is facially 

unconstitutional and conclude it is not. We then address whether the 

juvenile court erred by concluding that section 1111(2) required it to 

deny her request for appointed counsel without consideration of her 

due process rights under Lassiter and hold that it did.

B. Section 78A-6-1111(2) Is Not Facially Unconstitutional

¶ 15 Mother argues that the plain language of section 78A-6-

1111(2) is facially unconstitutional under Lassiter v. Department of 

Social Services.

26 Consequently, she claims that the trial court erred by 

relying on that statute to deny her request for counsel. By asserting a 

_____________________________________________________________

21 Id. at 27.

22 Id.

23 Id. at 31.

24 Id. at 32.

25 See M.L.B. v. S.L.J., 519 U.S. 102, 116 & n.8 (1996).

26 452 U.S. 18 (1981).
IN RE E.K.S.

Opinion of the Court

8

facial challenge to the statute, Mother bears the burden of 

“establish[ing] that no set of circumstances exist[] under which the 

[statute] would be valid.”27 This is a high bar, as we are reluctant “to 

declare a legislative enactment facially unconstitutional,”28 and we 

resolve all doubts “in favor of the constitutionality of a statute.”29

Under this standard, Mother’s facial challenge to the statute fails.

¶ 16 Section 78A-6-1111 applies to “any action in juvenile 

court.”30 At the time Mother requested counsel,31 subsection (2) of 

that section read as follows: “Counsel appointed by the court may 

not provide representation as court-appointed counsel for a parent 

or legal guardian in any action initiated by, or in any proceeding to 

modify court orders in a proceeding initiated by, a private party.” 

Mother argues that section 1111(2) operates as a categorical 

prohibition on the appointment of counsel in privately initiated 

termination proceedings, and that this prohibition is irreconcilable 

with the Supreme Court’s decision in Lassiter that indigent parents in 

parental termination proceedings may in some circumstances be 

entitled as a matter of due process to court-appointed counsel. Thus, 

Mother argues, because the statute may in some circumstances 

unconstitutionally deny an indigent parent his or her due process 

right to court-appointed counsel, the statute is unconstitutional on its 

face. We disagree.

¶ 17 Accepting for purposes of this appeal that section 78A-6-

1111(2) operates as a categorical restriction on the courts’ ability to 

appoint counsel for indigent parents in privately initiated juvenile 

court proceedings, Mother has failed to show that there are no 

circumstances under which the statute would be constitutional. In 

general, a court has discretion as to whether to appoint counsel in 

_____________________________________________________________

27 State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993 P.2d 854 (third 

alteration in original) (citation omitted).

28 Ellis v. Soc. Servs. Dep’t of the Church of Jesus Christ of Latter-Day 

Saints, 615 P.2d 1250, 1255 (Utah 1980).

29 Id.

30 UTAH CODE § 78A-6-1111(1)(a).

31 While Mother’s case was pending on appeal, the Legislature 

amended the statute, appending the following language to 

subsection (2): “except that in a private action to terminate parental 

rights the court may appoint counsel to represent an indigent parent 

if it finds that the failure to appoint counsel will result in a 

deprivation of due process.” Indigent Defense, 2016 Utah Laws ch. 

177 (codified at UTAH CODE § 78A-6-1111(2)).
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Opinion of the Court

9

civil matters.32 This discretion can be limited in two ways: first, a 

statute or constitutional provision may require that counsel be 

appointed, as in certain parental termination cases.33 Second, a 

statute may do just the opposite and forbid the appointment of 

counsel. Section 1111(2), as interpreted by Mother, would be an 

example of the latter. It limits the court’s discretion to appoint

counsel to indigent parents involved in privately initiated 

proceedings in juvenile court, including proceedings other than for 

the termination of parental rights. 

¶ 18 In order to succeed in a facial challenge to section 1111(2), 

Mother bears the burden of showing that the statute always 

unconstitutionally prohibits the appointment of counsel. This in turn 

requires Mother to establish that indigent individuals involved in 

privately initiated juvenile court proceedings—including nontermination proceedings—are always constitutionally entitled to 

court-appointed counsel. For if there are circumstances in which a 

court is not constitutionally required to appoint counsel, then section 

1111(2) may validly proscribe the court’s discretion to do so of its 

own accord. Mother has not made this argument, and such an 

argument would be unavailing.34 Simply showing that the statute 

may, in certain circumstances, unconstitutionally restrict the court’s 

ability to appoint counsel is insufficient for a facial challenge.35

¶ 19 Indeed, even if we were to narrowly interpret section 

1111(2) solely as a prohibition on the appointment of counsel in 

privately initiated parental termination proceedings, the statute 

would still not be facially unconstitutional. Under Lassiter, due 

_____________________________________________________________

32 See Burke v. Lewis, 2005 UT 44, ¶¶ 23–26, 122 P.3d 533.

33 See UTAH CODE § 78A-6-1111(1)(c) (requiring the appointment 

of counsel to indigent parents in certain proceedings initiated by the 

state, such as neglect and parental termination proceedings); Lassiter, 

452 U.S. at 31 (holding that due process may require the 

appointment of counsel to indigent parents in certain cases).

34 See Lassiter, 452 U.S. at 31 (“[N]either can we say that the 

Constitution requires the appointment of counsel in every parental 

termination proceeding.”).

35 See Gillmor v. Summit Cty., 2010 UT 69, ¶ 27, 246 P.3d 102 (“[I]n 

asserting a facial challenge, [a] party avers that the statute is so 

constitutionally flawed that no set of circumstances exists under which 

the [statute] would be valid.” (second and third alterations in original) 

(emphasis added) (citation omitted)).
IN RE E.K.S.

Opinion of the Court

10

process requires the appointment of counsel only in certain 

circumstances.36 The Court was clear that the Constitution does not 

“require[] the appointment of counsel in every parental termination 

proceeding,”37 but instead requires a case-by-case balancing of the 

relevant factors. And if the particular circumstances of a case reveal 

that due process does not require counsel to be appointed, the only 

way counsel could be appointed is if the court exercised its 

discretion. In these circumstances, where due process does not 

require the appointment of counsel, section 1111(2) operates in a 

constitutional manner to restrict the court’s discretion to make such 

an appointment on its own. Ultimately, no due process rights can be 

violated by a prohibition on the appointment of counsel if there is 

not a due process right to counsel to begin with. Section 1111(2) is 

therefore not facially unconstitutional under the federal Due Process 

Clause because it operates constitutionally in at least some 

circumstances.38

¶ 20 Of course, our conclusion that section 78A-6-1111(2) is 

facially constitutional does not mean the statute will always operate 

in a constitutional manner. There may arise circumstances where the 

statute would seem to restrict a juvenile court’s ability to appoint 

counsel for an indigent parent where due process requires it.39 In 

such circumstances, if a court applies the statute and refuses to 

appoint counsel despite the requirements of due process, the 

indigent parent may, as Mother has done here, raise an as-applied 

_____________________________________________________________

36 See Lassiter, 452 U.S. at 31 (“If, in a given case, the parent’s 

interests were at their strongest, the State’s interests were at their 

weakest, and the risks of error were at their peak, it could not be said 

that the Eldridge factors did not overcome the presumption against 

the right to appointed counsel, and that due process did not 

therefore require the appointment of counsel. 

But . . . the Eldridge factors will not always be so distributed . . . .”).

37 Id.

38 The 2016 amendment to section 78A-6-1111(2), although 

superfluous to the extent it establishes that the statute cannot 

override due process rights, has clarified that the prohibition on the 

appointment of counsel extends only to those cases where counsel is 

not required to be appointed as a matter of due process. See 2016 

Utah Laws ch. 177 (codified at UTAH CODE § 78A-6-1111(2)).

39 We recognize that the 2016 amendment to the statute has 

obviated this concern, but we address the statute as it existed at the 

time of the relevant proceedings.
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Opinion of the Court

11

challenge to the statute. We turn now to Mother’s arguments on this 

point.

C. The Juvenile Court Erred by Relying on Section 78A-6-1111(2) to Deny 

Counsel Without Considering Mother’s Circumstances

¶ 21 As discussed above, although we reject Mother’s argument 

that Utah Code section 78A-6-1111(2) is facially unconstitutional, this 

does not dispose of her claim that the statute was unconstitutionally 

applied in her case. Mother argues that the juvenile court improperly 

relied on section 1111(2) to conclude that she could not be entitled to 

court-appointed counsel and therefore failed to consider her due 

process rights as set forth in Lassiter. Adoptive Parents agree with 

Mother that the court erred by not conducting the Lassiter analysis. 

The record, though sparse as to the issues on appeal today, supports 

Mother’s claim that the court decided Mother’s request for counsel 

solely on the basis of section 1111(2) without considering her due 

process rights. 

¶ 22 The juvenile court’s explanation for its denial of Mother’s 

request for counsel was simply that “a public defender is not 

available as this is a private petition.” This conclusion is mistaken. 

The Supreme Court held in Lassiter that counsel may be required to 

be appointed as a matter of due process in some parental 

termination cases,40 and this holding applies equally to both 

privately and state-initiated termination proceedings.41 The mere fact 

that the petition was initiated by a private party does not obviate the 

constitutional guarantees of due process. 

¶ 23 The juvenile court’s erroneous conclusion appears to have 

been based on section 78A-6-1111(2)’s prohibition on the 

appointment of counsel in privately initiated proceedings.42

Accordingly, we agree with Mother that the trial court erred by 

_____________________________________________________________

40 See Lassiter, 452 U.S. at 31.

41 See M.L.B. v. S.L.J., 519 U.S. 102, 116 & n.8 (1996); In re K.A.S., 

2016 UT 55, ¶¶ 2, 22–23, --- P.3d --- (applying the Lassiter analysis to 

a privately initiated termination proceeding and holding that the 

father “had a federal due process right to counsel in the district court 

proceedings”).

42 See UTAH CODE § 78A-6-1111(2) (2015) (“Counsel appointed by 

the court may not provide representation as court-appointed counsel 

for a parent or legal guardian in any action initiated by, or in any 

proceeding to modify court orders in a proceeding initiated by, a 

private party. . . .”).
IN RE E.K.S.

Opinion of the Court

12

deciding her request for counsel on the basis of the language of 

section 1111(2) without determining whether counsel should be 

appointed under the analysis set forth in Lassiter. As discussed 

above, section 1111(2) can prohibit the appointment of counsel only 

if such prohibition comports with the requirements of due process. 

And due process required the court to consider whether, despite 

section 1111(2)’s prohibition, Mother was entitled to appointed 

counsel under Lassiter. 

¶ 24 The court’s error in this regard precludes further analysis by 

this court. Because the court seemed to treat section 1111(2) as 

wholly dispositive of Mother’s request for counsel, it failed to 

conduct any additional analysis as to Mother’s circumstances. 

Indeed, not only did the court fail to consider the due process 

analysis set forth in Lassiter, it also failed to make the preliminary 

determination as to whether Mother was indigent. The due process 

protections described in Lassiter depend on whether the individual is 

indigent, which necessarily requires an initial determination that the 

individual is indeed indigent.43 And we are in no position to make 

such a finding on appeal.44 Accordingly, we hold that the court erred 

in its reliance on section 78A-6-1111(2) to deny counsel without 

consideration of Mother’s circumstances and due process rights, and 

we remand for further proceedings.45 Upon remand, the court 

_____________________________________________________________

43 See In re K.A.S., 2016 UT 55, ¶ 40 (“The right to counsel is 

available only to indigent individuals.”).

44 Although Adoptive Parents agree that the court erred by failing 

to conduct the Lassiter analysis, they encourage us to perform that 

analysis for the first time on appeal as a matter of judicial efficiency. 

We decline to do so because of the juvenile court’s failure to make 

any determination of indigency. Such fact-finding is best left to the 

lower court. See In re United Effort Plan Trust, 2013 UT 5, ¶ 17, 296 

P.3d 742 (“[A] ‘lower court often has a comparative advantage in its 

firsthand access to factual evidence.’” (citation omitted)). Thus we 

“leave the decision whether due process calls for the appointment of 

counsel for [Mother] in [these] termination proceedings to be 

answered in the first instance by the trial court, subject, of course, to 

appellate review.” Lassiter, 452 U.S. at 32 (citation omitted).

45 Mother also makes an equal protection argument that she 

should be entitled to her attorney fees and costs on appeal because 

indigent parents in state-initiated proceedings are given attorney 

fees for the first appeal of a termination proceeding under 1111(1)(g).

Because we cannot determine whether Mother was indigent, we do 

(Continued)
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Opinion of the Court

13

should carefully consider this court’s application of the Lassiter

analysis in In re K.A.S.46

Conclusion

¶ 25 We reaffirm today that privately initiated parental 

termination proceedings involve sufficient state action to trigger 

constitutional protections. And although we reject Mother’s facial 

challenge to Utah Code section 78A-6-1111(2), we hold that the 

juvenile court erred by relying on the statute to deny counsel 

without considering Mother’s circumstances and due process rights, 

as set forth in Lassiter v. Department of Social Services. We accordingly 

remand for further proceedings. Upon remand, the court should 

determine whether Mother is indigent and, if so, should conduct the 

Lassiter analysis in light of our decision in In re K.A.S.

 

not address her argument and must deny her request.

See In re K.A.S., 2016 UT 55, ¶ 39 n.12.

46 See In re K.A.S., 2016 UT 55, ¶¶ 22–38. As also noted in K.A.S., 

the issue of whether Lassiter requires that indigent parties be 

appointed counsel on appeal is not before us today. See id. ¶ 39 n.12. 

We accordingly do not reach it.