                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
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 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.” UTAH CODE § 78A-6-1111(2)
(2015).

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                           Opinion of the Court

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).
   3Mother 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.

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                                 IN RE E.K.S.
                             Opinion of the Court
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

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).

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                              IN RE E.K.S.
                         Opinion of the Court
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

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).

                                       7
                               IN RE E.K.S.
                          Opinion of the Court
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

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 non-
termination 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).
   34See 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)).

                                     9
                               IN RE E.K.S.
                          Opinion of the Court
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

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   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

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
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   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. . . .”).

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                              IN RE E.K.S.
                         Opinion of the Court
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

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.
   46See 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.

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