Edward CROWELL, Appellee, v. STATE PUBLIC DEFENDER, Appellant. Iowa Department of Management, Plaintiff, v. Iowa District Court for Linn County, Defendant.
No. 12-2226.
Supreme Court of Iowa.
Feb. 12, 2014.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy Attorney General, and Meghan L. Gavin, Assistant Attorney General, for plaintiff.
Edward F. Crowell, Cedar Rapids, pro se.
APPEL, Justice.
A juvenile court ordered the State Public Defender to pay for court-appointed counsel for an indigent parent in a contested termination-of-parental-rights proceeding brought pursuant to
The State Public Defender and the Department filed an appeal challenging the juvenile court‘s appointment of counsel at public expense. We conclude the State Public Defender‘s appeal is moot and the Department‘s appeal should be treated as a petition for an original writ of certiorari, which we grant. On the merits, we conclude the juvenile court correctly determined the indigent parent was entitled to counsel at public expense. As a result, we annul the writ.
I. Factual and Procedural Background.
A child‘s father and stepmother filed a termination action pursuant to
In considering the application, the juvenile court first considered whether the mother had a statutory right to counsel under
The juvenile court found the first two elements satisfied, but concluded the third was not met. The juvenile court declined to determine whether the parent had a colorable defense, believing such a finding by the trial court could have a chilling effect on the parent‘s perception of fairness and interfere with the parent‘s presentation of relevant evidence during trial. The juvenile court noted, however, the grounds urged for termination, abandonment and nonpayment of support, are factual issues and do not involve complex legal theories. The juvenile court further noted the mother had attended school through eleventh grade, was working on obtaining a GED degree, and was not at any time a special education student or the subject of an individualized education plan. The juvenile court observed the mother was aware of the nature of the proceedings, appeared to understand her obligations with regard to the presentation of evidence at trial, and had made arrangements for witnesses to appear on her behalf. Finally, the juvenile court stated none of the witnesses appeared hostile to the mother‘s interests such as to render the presentation of their testimony challenging for the mother. As a result, the juvenile court concluded the mother was not entitled to appointment of counsel under
The juvenile court next considered whether the mother was entitled to appointed counsel as a matter of constitutional law. The juvenile court noted that in In re S.A.J.B., 679 N.W.2d 645, 650-51 (Iowa 2004), we held the general assembly could not constitutionally distinguish between the right to counsel at public expense in privately prosecuted termination proceedings under
The original juvenile court order appointing Crowell directed the petitioners—the father and stepmother—to pay the cost of the mother‘s legal defense. The juvenile court subsequently amended its order to require payment by the State Public Defender after determining the petitioners were indigent. The juvenile court further approved fee expenses in excess of the State Public Defender‘s fee guidelines, noting that while the legal issues in the case were not complex, the factual context in which those theories arose was “unusual so as to render a greater amount of time than contemplated by fee guidelines reasonably necessary for location and presentation of relevant evidence and legal theory.”
Crowell submitted a claim of $2040 to the State Public Defender for his legal services in representing the mother. Pursuant to
The court‘s May 4, 2012, appointment order specifically found that [S.H.] was not entitled to counsel under
Iowa Code section 600A.6A , rather that she was entitled to court appointed counsel under In re S.A.J.B.Iowa Code section 815.11 authorizes payment for court appointed attorney fees under600A.6B , but no other costs under 600A are payable from the indigent defense fund.Section 600A.6B only applies to counsel appointed under600A.6A .Section 815.11 does not authorize payment for counsel appointed under In re S.A.J.B.
Crowell filed a timely motion for judicial review of the State Public Defender‘s action.2 He requested a new appointment order satisfying the requirements of
likely would have been prejudiced in her ability to obtain and adequately present evidence relevant to her defense as well as arguing its significance. Her ability to effectively examine and cross-examine witnesses would have also likely been adversely impacted by the hostility between the parties and extended family.
Nonetheless, the juvenile court declined to amend its prior order to resolve the issue. The juvenile court then reconfirmed its conclusion that the mother was entitled to counsel at public expense under In re S.A.J.B.
Having concluded attorney‘s fees generated by constitutionally mandated counsel could not be paid under
The State Public Defender and the Department filed an appeal.
II. Subject Matter Jurisdiction.
A. Introduction.
Although no party challenges this court‘s jurisdiction in this case, an appellate court has responsibility sua sponte to police its own jurisdiction. See, e.g., State ex rel. Vega v. Medina, 549 N.W.2d 507, 508 (Iowa 1996) (noting this court may raise the issue of its subject matter jurisdiction sua sponte); see also Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 93-95 (1998); Baird v. Norton, 266 F.3d 408, 410 (6th Cir. 2001); GNB Battery Techs., Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995). In the exercise of this responsibility, we must first address questions related to our subject matter jurisdiction that spring from the record of this case.
The first jurisdictional question is whether this court may consider the State Public Defender‘s appeal when the challenged order did not impose an obligation upon the State Public Defender and no party seeks to impose such an obligation on appeal. The second jurisdictional question is whether this court may consider the Department‘s appeal when the Department did not participate as a party in the litigation below.
B. State Public Defender.
Following the hearing on Crowell‘s motion for judicial review of the State Public Defender‘s denial of his claim for payment, the juvenile court rendered a final judgment that was appealable by the State Public Defender. See
Here, the judgment of the juvenile court does not order the State Public Defender
C. Department of Management.
1. Introduction.
2. Iowa caselaw. We begin our discussion with a review of certiorari actions in Iowa. The
A writ of certiorari is limited to triggering review of the acts of an inferior tribunal on the basis the inferior tribunal exceeded its jurisdiction or otherwise acted illegally. Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 794 (Iowa 2004). Our power to review lower court actions by issuing writs of certiorari is discretionary. Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 490 (Iowa 2003). Once this court exercises its discretionary power to grant certiorari, we engage in review of the action of the inferior tribunal and either sustain or annul it. No other relief may be granted. Eden Twp. Sch. Dist. v. Carroll Cnty. Bd. of Educ., 181 N.W.2d 158, 165-66 (Iowa 1970).
We have long endorsed the general rule that only a party to the action below may seek a writ of certiorari challenging the action of an inferior tribunal. E.g., Hohl v. Bd. of Educ., 250 Iowa 502, 509, 94 N.W.2d 787, 791 (1959); Polk County v. Dist. Ct., 133 Iowa 710, 713, 110 N.W. 1054, 1055 (1907). On several occasions, however, we have held that plaintiffs who were not parties in the proceedings before the inferior tribunal had standing to seek a writ of certiorari.
A relatively recent case in which we embraced the exception to the general rule is State v. West, 320 N.W.2d 570 (Iowa 1982). In West, we considered whether individuals who were not parties to a criminal proceeding could bring a certiorari action challenging a district court order distributing a restitution fund established for victims of the underlying crimes. Id. at 571. We recognized that while generally only a party to an action below may obtain the writ, nonparties below could obtain the writ if they “prove that they have been injured in a special manner, different from that of the public generally.” Id. at 573. In West, the parties seeking certiorari alleged that they suffered pecuniary damage as a result of the defendant‘s criminal activities in the underlying action and that when the district court denied their claims to the restitution fund their only recourse was a writ of certiorari. Id. Accordingly, we held the parties seeking certiorari had standing to maintain the action. Id.
Similarly, in Hohl we considered whether individuals who questioned certain school reorganization proceedings had standing to bring a certiorari action. 250 Iowa at 503, 94 N.W.2d at 788. We noted certiorari proceedings were “available to all persons who may show a substantial interest in the matter challenged.” Id. at 509, 94 N.W.2d at 791. We noted that while generally only a person who is a party to the underlying action may secure a writ of certiorari, there was “a tendency to broaden the scope of the writ” by allowing certain other parties to seek the writ to avoid the denial of substantial injustice. Id. at 509, 94 N.W.2d at 791-92. We held that individuals affected by the reorganization could bring a certiorari action to challenge the reorganization proceedings. Id. at 510, 94 N.W.2d at 792.
Finally, in an earlier case, Hemmer v. Bonson, 139 Iowa 210, 214-15, 117 N.W. 257, 258-59 (1908), we considered whether a citizen who did not participate in a district court action brought by another citizen to enjoin operation of a liquor nuisance could bring a certiorari action challenging the narrowness of the district court ruling. A statute granted any citizen in the same county as the saloon standing to bring an injunction proceeding, and the citizen challenging the ruling lived in the same county. Id. at 215, 117 N.W. at 259. We held the citizen had standing because the citizen could have filed an action under the statute to enjoin the nuisance and because the citizen, due to the proximity of the tavern to her residence, had a special interest in the case. Id. at 215-17, 117 N.W. at 259. In particular, we noted cases from other jurisdictions holding certiorari is open to an individual “who suffers peculiar injury by reason of a judgment or order entered in excess of jurisdiction.” Id. at 215, 117 N.W. at 259.
Our recent caselaw demonstrates the limits of the exception to the general rule that a plaintiff in a certiorari action must have been a party in the action below. In Alons v. Iowa District Court, 698 N.W.2d 858, 862 (Iowa 2005), state senators and representatives, a congressman, a pastor, and a church who were not parties to the proceedings in district court brought a certiorari action challenging the district court‘s order that, on its face, dissolved the marriage of a same-sex couple married in
We held the plaintiffs did not have standing to bring the certiorari action. Id. at 874. After citing West for the proposition that generally only a party to an action may obtain the writ, we recognized the exception applies where plaintiffs have a “‘specific personal or legal interest in the litigation‘” and show that “they have been injured in a special manner, different from the public generally.” Id. at 864-65 (quoting Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004) (first quote) and West, 320 N.W.2d at 573 (second quote)). Accordingly, we concluded none of the plaintiffs in the certiorari action had standing to seek the writ. Id. at 873-74; see also Williamson v. Kelley, 271 N.W.2d 727, 729-30 (1978) (finding attorneys lacked standing to bring certiorari action challenging district court order that trials no longer be held in a courthouse because of a fire hazard).
While the above cases demonstrate that a plaintiff in a certiorari action who did not participate below may successfully invoke this court‘s jurisdiction under the exception to the general rule, we have encouraged plaintiffs who are not parties to the underlying action to nonetheless participate in the inferior proceedings when possible. For example, in Iowa Department of Transportation v. Iowa District Court, 546 N.W.2d 620, 623 (Iowa 1996) (per curiam), we expressed a desire to “encourage” the filing of a motion to rescind before the inferior tribunal when a nonparty did not receive notice of the action until after entry of the order. The advantage of such an approach is that it gives the inferior tribunal the first opportunity to correct its mistakes. Id.
In a later case, State Public Defender v. Iowa District Court for Black Hawk County, 633 N.W.2d 280, 281 (Iowa 2001), the public defender filed a petition for a writ of certiorari in this court challenging a district court order requiring the public defender to turn over records of a juvenile for sealing. We granted the writ and the certiorari proceeding commenced in this court. Id. While the certiorari action was pending, the public defender filed a motion in the district court alleging it had not received notice of the hearing leading to the order of the district court. Id. After the county attorney resisted the motion on the basis the district court lacked jurisdiction to consider the public defender‘s motion because of the pending certiorari proceeding, we granted the public defender‘s motion for a limited remand to allow the district court to consider the issue. Id. On limited remand, the district court concluded that it erred in not giving the public defender notice, that the hearing on limited remand cured the error, and it affirmed its earlier order. Id. We then proceeded to consider the original action and held the district court erred in ordering the public defender to surrender its records. Id. at 282-83.
In sum, while our caselaw is sparse, there is authority supporting an exception to the general rule requiring a plaintiff in a certiorari action to have participated in the proceedings below. We have sought to encourage a nonparty to present issues to the inferior tribunal in a motion to rescind, see Arthur Ray Pointer v. Iowa Dep‘t of Transp., 546 N.W.2d 623 (1996), and have allowed a limited remand after granting a writ of certiorari to allow the inferior tribunal to reconsider its order, see Iowa Dist. Ct. for Black Hawk Cnty., 633 N.W.2d at 281.
3. Federal caselaw. Our approach to the standing of nonparties to the proceed
The lower federal courts have, in limited circumstances, allowed an entity or individual who did not participate in the proceedings below to be considered a party for purposes of appeal. For example, federal courts have held a party not named below may appeal an order or judgment involving a consent decree that purports to bind nonparties, see United States v. Int‘l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 931 F.2d 177, 183-84 (2d Cir. 1991), injunctions that purport to bind nonparties, see R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 955 (4th Cir. 1999); United States v. Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998) (restraining order); In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996); In re Piper Funds Inc., Institutional Gov‘t Income Portfolio Litig., 71 F.3d 298, 301 (8th Cir. 1995) (stay of litigation); cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 108-12 (1969) (holding it was improper to enter judgment and an injunction against the parent company of a party on the basis the parent company was not designated a party to the litigation, did not formally appear at trial, was not made a party by service of process, and had not agreed to be bound by a stipulation that it and its subsidiary should be considered one party for purposes of litigation), a turnover order that requires nonparties to divest themselves of assets, see Maiz v. Virani, 311 F.3d 334, 339 (5th Cir. 2002), a receivership order that directly affects the rights of parties not before the court, see Fid. Bank, Nat‘l Ass‘n v. M.M. Grp., Inc., 77 F.3d 880, 882 (6th Cir. 1996), and an order directing law firms to limit compensation to nonparties contrary to private agreements, see Dietrich Corp. v. King Res. Co., 596 F.2d 422, 424 (10th Cir. 1979).
All of these cases, of course, involve tangible interests of the nonparties that are directly affected by the lower court judgment or order. The federal courts consistently hold that a judgment cannot be appealed merely because the order appealed from contains language or reasoning that a party deems is adverse to its interest. See, e.g., Boston Tow Boat Co. v. United States, 321 U.S. 632, 633 (1944).
The federal courts have also considered whether a nonparty with concrete interests directly affected by a court order or judgment must run the gauntlet of contempt in order to challenge the validity of the order or judgment. A number of federal courts directly addressing this issue have concluded that the better course is to allow a direct appeal by the nonparty. See Kirschenbaum, 156 F.3d at 794; In re Estate of Ferdinand Marcos, 94 F.3d at 544; In re Piper Funds, 71 F.3d at 301.
Based on the caselaw, the leading treatise on federal practice and procedure notes that “nonparties can achieve standing to appeal by a variety of methods in a
4. Caselaw from other state appellate courts. We also look to case developments in other states to evaluate our established approach to the standing issue. As with the federal courts, many state courts allow nonparties below to launch appeals in certain limited circumstances. For example, state courts have held nonparties may appeal orders or judgments approving settlements when pecuniary interests are directly affected, see Dowling v. Stapley, 221 Ariz. 251, 211 P.3d 1235, 1258 (App. 2009); In re Clergy Cases I, 188 Cal. App. 4th 1224, 116 Cal. Rptr. 3d 360, 366-67 (Ct. App. 2011), an order requiring a third party to release assets, see People v. Hernandez, 172 Cal. App. 4th 715, 91 Cal. Rptr. 3d 604, 606 (Ct. App. 2009), an order requiring a nonparty state agency to provide services to a juvenile, see In re C.A.G., 903 P.2d 1229, 1233 (Colo. App. 1995), an order requiring a nonparty attorney to pay for interpreting services provided to a defendant, see Swindle v. Benton Cnty. Circuit Ct., 363 Ark. 118, 211 S.W.3d 522, 524 (2005), an order distributing the assets of an estate in a fashion affecting interests of nonparty beneficiaries, see In re Estate of Strong, 194 Ill. App. 3d 219, 550 N.E.2d 1201, 1206 (1990), orders subjecting nonparties to the terms of an injunction, see Barham v. City of Atlanta, 292 Ga. 375, 738 S.E.2d 52, 55 (2013); Ex parte State Pers. Bd., 45 So. 3d 751, 754 (Ala. 2010), orders appointing experts at the expense of a nonparty county, see In re Payment of Witness Fees in State, 179 Wis. 2d 312, 507 N.W.2d 576, 578 (Ct. App. 1993), and an order imposing sanctions on an attorney, see Wieman v. Roysden, 166 Ariz. 281, 802 P.2d 432, 435 (Ct. App. 1990). The exception to the general rule that one must be a party below to bring an appeal, however, does not allow an appeal merely because a party does not like the precedent or may suffer an indirect impact from it. See Colo. Permanente Med. Grp., P.C. v. Evans, 926 P.2d 1218, 1224 (Colo. 1996); Corsello v. Verizon N.Y., Inc., 77 A.D.3d 344, 908 N.Y.S.2d 57, 77 (2010); Castaldi v. 39 Winfield Assocs., LLC, 22 A.D.3d 780, 803 N.Y.S.2d 716, 716 (2005). These cases tend to support our approach to the ability of nonparties below to bring a certiorari action in our court in limited circumstances.
5. Discussion. The Department has shown a direct injury resulting from the district court‘s order which orders it, by name, to pay the attorney‘s fees in this case. The injury is not speculative, and it directly follows from the district court‘s order that explicitly requires the Department to pay the attorney‘s fees incurred in the representation of the mother. The injury is plainly special to the Department and not one held by the public generally. See West, 320 N.W.2d at 573. The circumstances of this case are materially similar to other cases where the nonparty has been permitted to seek a writ of certiorari or file an appeal. See id.; Hohl, 250 Iowa at 510, 94 N.W.2d at 792; see also Swindle, 211 S.W.3d at 524; In re C.A.G., 903 P.2d at 1233; In re Payment of Witness Fees, 507 N.W.2d at 578. We conclude the Department has met the requirements for the exception to the general rule that a plaintiff in a certiorari action must be a party to the proceedings below.
We also believe that when an order or judgment purports to bind a third party, intervention below is not required. See Barham, 738 S.E.2d at 55 (noting it was incumbent on the party seeking enforcement of an order against another to join the other party in the litigation and rejecting argument that it was incumbent upon the nonparty to intervene); Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai‘i 251, 151 P.3d 732, 756-57 (2007) (permitting a nonparty to the litigation to appeal an award of attorneys’ fees against it even though the nonparty appellant did not intervene in the litigation below); see also Martin v. Wilks, 490 U.S. 755, 763 (1989) (“[A] party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined.“), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 120-166, 105 Stat. 1074, as stated in Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994).
It may well be better practice, where possible, to give the lower tribunal the first opportunity to correct its error, either through a motion to rescind or a limited remand after the certiorari petition has been granted, see Iowa Dep‘t of Transp., 546 N.W.2d at 623; Iowa Dist. Ct. for Black Hawk Cnty., 633 N.W.2d at 281, but we do not think such an approach is a jurisdictional prerequisite to the exercise of our jurisdiction here. Unlike in Iowa Department of Transportation and Iowa District Court for Black Hawk County, the district court in this case decided the very issues the Department seeks to raise in this certiorari action. Further, while the Department was not a party to the underlying action, the State Public Defender participated in the proceedings below and had precisely the same interest as the Department with respect to the issues raised in this appeal. In this respect, the case is similar to Hemmer, where although the parties seeking certiorari did not participate in the proceedings before the inferior tribunal, other citizens with identical interests did participate. 139 Iowa at 215, 117 N.W. at 259. The juvenile court has already had the first opportunity to consider the issues raised in this certiorari action, and a motion to rescind or a limited remand would be a fruitless exercise.
For the above reasons, we conclude the Department has shown a concrete pecuniary injury directly flowing from the juvenile court order. The Department, therefore, has standing to maintain a certiorari proceeding under the exception to the general requirement that parties participate in the proceedings before the inferior tribunal as a precondition to seeking a writ of certiorari. Accordingly, we grant the writ.
III. Discussion of Merits of the Department‘s Writ of Certiorari.
A. Standard of Review.
Under a writ of certiorari, our review is for errors at law. Pfister, 688 N.W.2d at 793. To the extent constitutional issues are involved, however, our review is de novo. Id. at 794.
B. Positions of the Parties.
The Department asserts the juvenile court correctly determined the mother was not entitled to appointment of counsel at public expense under
The Department then attacks the juvenile court‘s ruling that the provision of counsel was constitutionally required. According to the Department, the juvenile court improperly relied on In re S.A.J.B. to require the appointment of counsel in this case. The Department notes
To the extent the rationale in In re S.A.J.B. is applicable, the Department contends it was wrongly decided and invites us to reverse course. The Department argues In re S.A.J.B. fails to recognize the distinction between a chapter 232 termination proceeding and a chapter 600A termination proceeding. The Department further maintains In re S.A.J.B. fails to properly weigh the state‘s interest in preserving scarce resources as a compelling interest sufficient to support the distinction between state-prosecuted terminations and privately prosecuted terminations.
Crowell responds by arguing the juvenile court misconstrued
In the alternative, Crowell argues if
In summarizing the arguments presented by the parties, we emphasize two issues that have not been raised and are thus not
Similarly, Crowell does not contend the juvenile court erred in declining to make an appointment pursuant to
C. Statutory Argument.
Ordinarily, we look to statutory issues first in order to avoid unnecessary constitutional questions. E.g., Simmons v. State Pub. Defender, 791 N.W.2d 69, 73-74 (Iowa 2010); State v. Fuhrmann, 261 N.W.2d 475, 477 n. 1 (Iowa 1978). If fairly possible, we interpret a statute to avoid doubt as to its constitutionality. E.g., Simmons, 791 N.W.2d at 73; Thompson v. Joint Drainage Dist. No. 3-11, 259 Iowa 462, 468, 143 N.W.2d 326, 330 (1966); Jacobs v. Miller, 253 Iowa 213, 218, 111 N.W.2d 673, 676 (1961). If the statute can bear no reasonable construction that avoids constitutional doubt, however, we proceed to the constitutional issue presented. Simmons, 791 N.W.2d at 73; Thompson, 259 Iowa at 468, 143 N.W.2d at 330; Jacobs, 253 Iowa at 218, 111 N.W.2d at 676.
While Crowell invites us to avoid the constitutional issue in this case through statutory construction, we cannot do so. In order to support his construction, Crowell urges us to sever
The Department invites us to revisit our holding in In re S.A.J.B. There, we considered whether the state could extend to indigent parents the right to counsel at public expense in a state-prosecuted proceeding to terminate parental rights under
Recognizing the question remained open under the United States Constitution, we proceeded to decide the case based upon the equal protection clause of the Iowa Constitution, article I, section 6. Id. at 648. We noted parental rights are considered fundamental rights under the Iowa Constitution. Id.; see also Santi v. Santi, 633 N.W.2d 312, 318 (Iowa 2001) (recognizing that “the parenting right is a fundamental liberty interest that is protected against unwarranted state intrusion” and subjecting a statute authorizing a court to override a parental decision about grandparent visitation to strict scrutiny (italics omitted) (quoting In re Bruce, 522 N.W.2d 67, 71 (Iowa 1994))); Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) (finding a putative father wishing to challenge the presumed paternity of a child born into a marriage had a fundamental liberty interest in challenging paternity). We then proceeded to consider whether the classification was narrowly tailored to serve a compelling state interest. In re S.A.J.B., 679 N.W.2d at 649-51. In doing so, we explicitly rejected the notion that a state‘s pecuniary interest in not providing counsel, standing alone, was a compelling interest. Id. at 650. While we recognized that indigents facing termination under
As a result of our analysis, we concluded the legislative framework was unconstitutionally underinclusive to the extent it did not afford the privilege of counsel at public expense to parents facing termination of their parental rights under
We reject the argument of the Department that this case is not controlled by In re S.A.J.B. It is true, of course, that in In re S.A.J.B. there was no provision for appointment of counsel for indigent parents under
In the alternative, the Department essentially reprises the arguments made in In re S.A.J.B. in suggesting we modify or overturn our holding in that case. We decline to do so. We note that our holding in In re S.A.J.B. does not appear to be an outlier. Indeed, a number of state courts have reached a similar conclusion. See In re Adoption of Meaghan, 461 Mass. 1006, 961 N.E.2d 110, 112-13 (2012) (holding indigent parents are constitutionally entitled to appointment of counsel at public expense in privately initiated termination-of-parental-rights proceedings because “the same fundamental, constitutionally protected interests are at stake” as in a state-initiated termination proceeding); In re Adoption of K.A.S., 499 N.W.2d 558, 563 (N.D. 1993) (rejecting distinction between private and public termination and holding that termination, through an adoption proceeding, of the parental rights of an indigent parent denied appointment of counsel violates the equal protection provision of the state constitution); Zockert v. Fanning, 310 Or. 514, 800 P.2d 773, 777-78 (1990) (finding no distinction between privately initiated and state-initiated termination proceedings under the equal protection provision of the state constitution); see also In re Adoption of K.L.P., 198 Ill. 2d 448, 763 N.E.2d 741, 753 (2002) (holding that where “significant state action has resulted in the custody or guardianship of the minor child being placed with a person other than the parent, equal protection requires that the parent be provided with the assistance of counsel, if she is indigent, in a subsequent action to terminate her parental rights“). We find no basis to disturb our prior ruling.
As a result, the juvenile court correctly determined the parent in this contested6 termination proceeding under
IV. Conclusion.
We conclude that though the State Public Defender is statutorily entitled to appeal the juvenile court‘s final judgment, the mootness doctrine precludes our consideration of the issues raised by the State Public Defender on appeal. Further, treating the Department‘s appeal as petition for a writ of certiorari and granting the writ, we conclude the juvenile court correctly appointed counsel at public expense to represent the mother in the con
DISTRICT COURT JUDGMENT AFFIRMED; WRIT ANNULLED.