|Lassiter v. Department of Social Services
[ Stewart ]
[ Burger ]
[ Blackmun ]
[ Stevens ]
Lassiter v. Department of Social Services
CERTIORARI TO THE COURT OF APPEALS OF NORTH CAROLINA
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
The Court today denies an indigent mother the representation of counsel in a judicial proceeding initiated by the State of North Carolina to terminate her parental rights with respect to her youngest child. The Court most appropriately recognizes that the mother's interest is a "commanding one," ante at 452 U.S. 27"]27, and it finds no countervailing state interest of even remotely comparable significance, see ante at 27-28, 31. Nonetheless, the Court avoids what seems to me the obvious conclusion that due process requires the presence of counsel for a parent threatened with judicial termination of parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in 27, and it finds no countervailing state interest of even remotely comparable significance, see ante at 27-28, 31. Nonetheless, the Court avoids what seems to me the obvious conclusion that due process requires the presence of counsel for a parent threatened with judicial termination of parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in Gideon v. Wainwright, 372 U.S. 335 (1963). Because I believe that the unique importance of a parent's interest in the care and custody of his or her child cannot constitutionally be extinguished through formal judicial proceedings without the benefit of counsel, I dissent.
This Court is not unfamiliar with the problem of determining under what circumstances legal representation is mandated by the Constitution. In Betts v Brady, 316 U.S. 455 (1942), it reviewed at length both the tradition behind the Sixth Amendment right to counsel in criminal trials and the historical practices of the States in that area. The decision in Betts -- that the Sixth Amendment right to counsel did not apply to the States and that the due process guarantee of the Fourteenth Amendment permitted a flexible, case-by-case determination of the defendant's need for counsel in state criminal trials -- was overruled in Gideon v. Wainwright, 372 U.S. at 345. The Court in Gideon rejected the Betts [p36] reasoning to the effect that counsel for indigent criminal defendants was "‘not a fundamental right, essential to a fair trial.'" 372 U.S. at 340 (quoting Betts v. Brady, 316 U.S. at 471). Finding the right well founded in its precedents, the Court further concluded that
reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.
372 U.S. at 344. Similarly, in Argersinger v. Hamlin, 407 U.S. 25 (1972), assistance of counsel was found to be a requisite under the Sixth Amendment, as incorporated into the Fourteenth, even for a misdemeanor offense punishable by imprisonment for less than six months. [n1]
Outside the criminal context, however, the Court has relied on the flexible nature of the due process guarantee whenever it has decided that counsel is not constitutionally required. The special purposes of probation revocation determinations, and the informal nature of those administrative proceedings, including the absence of counsel for the State, led the Court to conclude that due process does not require counsel for probationers. Gagnon v. Scarpelli, 411 U.S. 778, 785-789 (1973). In the case of school disciplinary proceedings, which are brief, informal, and intended in part to be educative, the Court also found no requirement for legal counsel. Goss v. Lopez, 419 U.S. 565, 583 (1975). Most recently, the Court declined to intrude the presence of counsel for a minor facing voluntary civil commitment by his parent, because of the parent's substantial role in that decision and because of the decision's essentially medical and informal nature. Parham v. J.R., 442 U.S. 584, 604-609 (1979).
In each of these instances, the Court has recognized that [p37] what process is due varies in relation to the interests at stake and the nature of the governmental proceedings. Where the individual's liberty interest is of diminished or less than fundamental stature, or where the prescribed procedure involves informal decisionmaking without the trappings of an adversarial trial-type proceeding, counsel has not been a requisite of due process. Implicit in this analysis is the fact that the contrary conclusion sometimes may be warranted. Where an individual's liberty interest assumes sufficiently weighty constitutional significance, and the State, by a formal and adversarial proceeding, seeks to curtail that interest, the right to counsel may be necessary to ensure fundamental fairness. See In re Gault, 387 U.S. 1 (1967). To say this is simply to acknowledge that due process allows for the adoption of different rules to address different situations or contexts.
It is not disputed that state intervention to terminate the relationship between petitioner and her child must be accomplished by procedures meeting the requisites of the Due Process Clause. Nor is there any doubt here about the kind of procedure North Carolina has prescribed. North Carolina law requires notice and a trial-type hearing before the State, on its own initiative, may sever the bonds of parenthood. The decisionmaker is a judge the rules of evidence are in force, and the State is represented by counsel. The question, then, is whether proceedings in this mold, that relate to a subject so vital, can comport with fundamental fairness when the defendant parent remains unrepresented by counsel. As the Court today properly acknowledges, our consideration of the process due in this context, as in others, must rely on a balancing of the competing private and public interests, an approach succinctly described in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). [n2] As does the majority, I [p38] evaluate the "three distinct factors" specified in Eldridge: the private interest affected; the risk of error under the procedure employed by the State; and the countervailing governmental interest in support of the challenged procedure.
At stake here is "the interest of a parent in the companionship, care, custody, and management of his or her children." Stanley v. Illinois, 405 U.S. 645, 651 (1972). This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility. "[F]ar more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533 (1953), parental rights have been deemed to be among those "essential to the orderly pursuit of happiness by free men," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and to be more significant and priceless than "‘liberties which derive merely from shifting economic arrangements.'" Stanley v. Illinois, 405 U.S. at 651, quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring). Accordingly, although the Constitution is verbally silent on the specific subject of families, freedom of personal choice in matters of family life long has been viewed as a fundamental liberty interest worthy of protection under the Fourteenth Amendment. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977); Moore v. East Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. at 399. Within the general ambit of family integrity, the Court has accorded a high degree of constitutional respect to a natural parent's interest both in controlling the details of the child's upbringing, [p39] Wisconsin v. Yoder, 406 U.S. 205, 232-234 (1972); Pierce v. Society of Sisters, 268 U.S. at 534-535, and in retaining the custody and companionship of the child, Smith v. Organization of Foster Families, 431 U.S. at 842-847; Stanley v. Illinois, 405 U.S. at 651.
In this case, the State's aim is not simply to influence the parent-child relationship, but to extinguish it. A termination of parental rights is both total and irrevocable. [n3] Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child's religious, educational, emotional, or physical development. It is hardly surprising that this forced dissolution of the parent-child relationship has been recognized as a punitive sanction by courts, [n4] Congress, [n5] and commentators. [n6] [p40] The Court candidly notes, as it must, ante at 27, that termination of parental rights by the State is a "unique kind of deprivation "
The magnitude of this deprivation is of critical significance in the due process calculus, for the process to which an individual is entitled is in part determined "by the extent to which he may be ‘condemned to suffer grievous loss.'" Goldberg v. Kelly, 397 U.S. 254, 263 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). See Little v. Streater, ante at 12; Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Surely there can be few losses more grievous than the abrogation of parental rights. Yet the Court today asserts that this deprivation somehow is less serious than threatened losses deemed to require appointed counsel, because, in this instance, the parent's own "personal liberty" is not at stake.
I do not believe that our cases support the "presumption" asserted, ante at 227, that physical confinement is the only loss of liberty grievous enough to trigger a right to appointed counsel under the Due Process Clause. Indeed, incarceration has been found to be neither a necessary nor a sufficient condition for requiring counsel on behalf of an indigent defendant. The prospect of canceled parole or probation, with its consequent deprivation of personal liberty, has not led the Court to require counsel for a prisoner facing a revocation proceeding. Gagnon v. Scarpelli, 411 U.S. at 785-789; Morrissey v. Brewer, 408 U.S. at 489. On the other hand, the fact that no new incarceration was threatened by a transfer from prison to a mental hospital did not preclude the Court's recognition of adverse changes in the conditions of [p41] confinement and of the stigma that presumably is associated with being labeled mentally ill. Vitek v. Jones, 445 U.S. 480, 492, 494 (1980). For four Members of the Court, these "other deprivations of liberty," coupled with the possibly diminished mental capacity of the prisoner, compelled the provision of counsel for any indigent prisoner facing a transfer hearing. Id. at 496-497 (opinion of WHITE J., joined by BRENNAN, MARSHALL, and STEVENS, JJ.). [n7] See also In re Gault, 387 U.S. at 24-25.
Moreover, the Court's recourse to a "preeminent generalization," ante at 25, misrepresents the importance of our flexible approach to due process. That approach consistently has emphasized attentiveness to the particular context. Once an individual interest is deemed sufficiently substantial or fundamental, determining the constitutional necessity of a requested procedural protection requires that we examine the nature of the proceeding -- both the risk of error if the protection is not provided and the burdens created by its imposition. [n8] Compare Goldberg v. Kelly, 397 U.S. 254 (1970), [p42] with Mathews v. Eldridge, 424 U.S. 319 (1976), and Fuentes v. Shevin, 407 U.S. 67 (1972), with Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974).
Rather than opting for the insensitive presumption that incarceration is the only loss of liberty sufficiently onerous to justify a right to appointed counsel, I would abide by the Court's enduring commitment to examine the relationships among the interests on both sides, and the appropriateness of counsel in the specific type of proceeding. The fundamental significance of the liberty interests at stake in a parental termination proceeding is undeniable, and I would find this first portion of the due process balance weighing heavily in favor of refined procedural protections. The second Eldridge factor, namely, the risk of error in the procedure provided by the State, must then be reviewed with some care.
The method chosen by North Carolina to extinguish parental rights resembles in many respects a criminal prosecution. Unlike the probation revocation procedure reviewed in Gagnon v. Scarpelli, on which the Court so heavily relies, the termination procedure is distinctly formal and adversarial. The State initiates the proceeding by filing a petition in district court, N.C.Gen.Stat. §§ 7A-289.23 and 7A-289.25 (Supp.1979), [n9] and serving a summons on the parent, § 7A289.27(1). A state judge presides over the adjudicatory hearing that follows, and the hearing is conducted pursuant to the formal rules of evidence and procedure. N.C. Rule Civ.Proc. 1, N.C.Gen.Stat. § 1A-1 (Supp.1979). In general, [p43] hearsay is inadmissible, and records must be authenticated. See, e.g., § 1A-1, Rules 1, 43, 44, 46.
In addition, the proceeding has an obvious accusatory and punitive focus. In moving to terminate a parent's rights, the State has concluded that it no longer will try to preserve the family unit, but instead will marshal an array of public resources to establish that the parent-child separation must be made permanent. [n10] The State has legal representation through the county attorney. This lawyer has access to public records concerning the family, and to professional social workers who are empowered to investigate the family situation and to testify against the parent. The State's legal representative may also call upon experts in family relations, psychology, and medicine to bolster the State's case. And, of course, the State's counsel himself is an expert in the legal standards and techniques employed at the termination proceeding, including the methods of cross-examination. [p44]
In each of these respects, the procedure devised by the State vastly differs from the informal and rehabilitative probation revocation decision in Scarpelli, the brief; educative school disciplinary procedure in Goss, and the essentially medical decision in Parham. Indeed, the State here has prescribed virtually all the attributes of a formal trial as befits the severity of the loss at stake in the termination decision every attribute, that is, except counsel for the defendant parent. The provision of counsel for the parent would not alter the character of the proceeding, which is already adversarial, formal, and quintessentially legal. It, however, would diminish the prospect of an erroneous termination, a prospect that is inherently substantial, given the gross disparity in power and resources between the State and the uncounseled indigent parent. [n11]
The prospect of error is enhanced in light of the legal standard against which the defendant parent is judged. As demonstrated here, that standard commonly adds another dimension to the complexity of the termination proceeding. Rather than focusing on the facts of isolated acts or omissions, the State's charges typically address the nature and quality of complicated ongoing relationships among parent, child, other relatives, and even unrelated parties. In the case at bar, the State's petition accused petitioner of two of the several grounds authorizing termination of parental rights under North Carolina law:
That [petitioner] has without cause, failed to establish or maintain concern or responsibility as to the child's welfare.
* * * *
That [petitioner] has willfully left the child in foster care for more than two consecutive years without showing [p45] that substantial progress has been made in correcting the conditions which led to the removal of the child [for neglect] 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.
(Emphasis supplied.) Juvenile Petition ¶ 6, 7, App. 3. [n12]
The legal issues posed by the State's petition are neither simple nor easily defined. The standard is imprecise and open to the subjective values of the judge. [n13] A parent seeking to prevail against the State must be prepared to adduce evidence about his or her personal abilities and lack of fault, as well as proof of progress and foresight as a parent that the State would deem adequate and improved over the situation underlying a previous adverse judgment of child neglect. The parent cannot possibly succeed without being able to identify material issues, develop defenses, gather and present [p46] sufficient supporting nonhearsay evidence, and conduct cross-examination of adverse witnesses.
The Court, of course, acknowledges, ante at 452 U.S. 30"]30, that these tasks "may combine to overwhelm an uncounseled parent." I submit that that is a profound understatement. Faced with a formal accusatory adjudication, with an adversary -- the State -- that commands great investigative and prosecutorial resources, with standards that involve ill-defined notions of fault and adequate parenting, and with the inevitable tendency of a court to apply subjective values or to defer to the State's "expertise," the defendant parent plainly is outstripped if he or she is without the assistance of "‘the guiding hand of counsel.'" In re Gault, 387 U.S. at 36, quoting 30, that these tasks "may combine to overwhelm an uncounseled parent." I submit that that is a profound understatement. Faced with a formal accusatory adjudication, with an adversary -- the State -- that commands great investigative and prosecutorial resources, with standards that involve ill-defined notions of fault and adequate parenting, and with the inevitable tendency of a court to apply subjective values or to defer to the State's "expertise," the defendant parent plainly is outstripped if he or she is without the assistance of "‘the guiding hand of counsel.'" In re Gault, 387 U.S. at 36, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932). When the parent is indigent, lacking in education, and easily intimidated by figures of authority, [n14] the imbalance may well become insuperable.
The risk of error thus is several-fold. The parent who actually has achieved the improvement or quality of parenting the State would require may be unable to establish this fact. The parent who has failed in these regards may be unable to demonstrate cause, absence of willfulness, or lack of agency diligence as justification. And errors of fact or law in the State's case may go unchallenged and uncorrected. [n15] Given [p47] the weight of the interests at stake, this risk of error assumes extraordinary proportions. By intimidation, inarticulateness, or confusion, a parent can lose forever all contact and involvement with his or her offspring.
The final factor to be considered, the interests claimed for the State, do not tip the scale against providing appointed counsel in this context. The State hardly is in a position to assert here that it seeks the informality of a rehabilitative or educative proceeding into which counsel for the parent would inject an unwelcome adversarial edge. As the Assistant Attorney General of North Carolina declared before this Court, once the State moves for termination, it "has made a decision that the child cannot go home and should not go home. It no longer has an obligation to try and restore that family." Tr. of Oral Arg. 40.
The State may, and does, properly assert a legitimate interest in promoting the physical and emotional wellbeing of its minor children. But this interest is not served by terminating the rights of any concerned, responsible parent. Indeed, because North Carolina is committed to "protect[ing] all children from the unnecessary severance of a relationship with biological or legal parents," § 7A-289.22 (2), "the State spites its own articulated goals when it needlessly [p48] separates" the parent from the child. Stanley v. Illinois, 405 U.S. at 653. [n16]
The State also has an interest in avoiding the cost and administrative inconvenience that might accompany a right to appointed counsel. But, as the Court acknowledges, the State's fiscal interest "is hardly significant enough to overcome private interests as important as those here." Ante at 28. The State's financial concern indeed is a limited one, for the right to appointed counsel may well be restricted to those termination proceedings that are instituted by the State. Moreover, no difficult line-drawing problem would arise with respect to other types of civil proceedings. The instant due process analysis takes full account of the fundamental nature of the parental interest, the permanency of the threatened deprivation, the gross imbalance between the resources employed by the prosecuting State and those available to the indigent parent, and the relatively insubstantial cost of furnishing counsel. An absence of any one of these factors might yield a different result. [n17] But where, as here, the threatened loss of liberty is severe and absolute, the State's role is so clearly adversarial and punitive, and the cost involved is relatively slight, there is no sound basis for refusing to recognize the right to counsel as a requisite of due process in a proceeding initiated by the State to terminate parental rights.
The Court's analysis is markedly similar to mine; it, too, analyzes the three factors listed in Mathews v. Eldridge, and it, too, finds the private interest weighty, the procedure devised by the State fraught with risks of error, and the countervailing [p49] governmental interest insubstantial. Yet, rather than follow this balancing process to its logical conclusion, the Court abruptly pulls back and announces that a defendant parent must await a case-by-case determination of his or her need for counsel. Because the three factors "will not always be so distributed," reasons the Court, the Constitution should not be read to "requir[e] the appointment of counsel in every parental termination proceeding." Ante at 31 (emphasis added). This conclusion is not only illogical, but it also marks a sharp departure from the due process analysis consistently applied heretofore. The flexibility of due process, the Court has held, requires case-by-case consideration of different decisionmaking contexts, not of different litigants within a given context. In analyzing the nature of the private and governmental interests at stake, along with the risk of error, the Court in the past has not limited itself to the particular case at hand. Instead, after addressing the three factors as generic elements in the context raised by the particular case, the Court then has formulated a rule that has general application to similarly situated cases.
The Court's own precedents make this clear. In Goldberg v. Kelly, the Court found that the desperate economic conditions experienced by welfare recipients as a class distinguished them from other recipients of governmental benefits. 397 U.S. at 264. In Mathews v. Eldridge, the Court concluded that the needs of Social Security disability recipients were not of comparable urgency, and, moreover, that existing pretermination procedures, based largely on written medical assessments, were likely to be more objective and evenhanded than typical welfare entitlement decisions. 424 U.S. at 339-345. These cases established rules translating due process in the welfare context as requiring a pretermination hearing but dispensing with that requirement in the disability benefit context. A showing that a particular welfare recipient had access to additional income, or that a disability recipient's eligibility turned on testimony, rather than [p50] written medical reports, would not result in an exception from the required procedural norms. The Court reasoned in Eldridge:
To be sure, credibility and veracity may be a factor in the ultimate disability assessment in some cases. But procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.
Id. at 344.
There are sound reasons for this. Procedural norms are devised to ensure that justice may be done in every case, and to protect litigants against unpredictable and unchecked adverse governmental action. Through experience with decisions in varied situations over time, lessons emerge that reflect a general understanding as to what is minimally necessary to assure fair play. Such lessons are best expressed to have general application which guarantees the predictability and uniformity that underlie our society's commitment to the rule of law. By endorsing, instead, a retrospective review of the trial record of each particular defendant parent, the Court today undermines the very rationale on which this concept of general fairness is based. [n18]
Moreover, the case-by-case approach advanced by the Court itself entails serious dangers for the interests at stake and the general administration of justice. The Court assumes that a review of the record will establish whether a defendant, proceeding without counsel, has suffered an unfair [p51] disadvantage. But in the ordinary case, this simply is not so. The pleadings and transcript of an uncounseled termination proceeding at most will show the obvious blunders and omissions of the defendant parent. Determining the difference legal representation would have made becomes possible only through imagination, investigation, and legal research focused on the particular case. Even if the reviewing court can embark on such an enterprise in each case, it might be hard-pressed to discern the significance of failures to challenge the State's evidence or to develop a satisfactory defense. Such failures, however, often cut to the essence of the fairness of the trial, and a court's inability to compensate for them effectively eviscerates the presumption of innocence. Because a parent acting pro se is even more likely to be unaware of controlling legal standards and practices, and unskilled in garnering relevant facts, it is difficult, if not impossible, to conclude that the typical case has been adequately presented. Cf. Betts v. Brady, 316 U.S. at 476 (dissenting opinion). [n19]
Assuming that this ad hoc review were adequate to ensure fairness, it is likely to be both cumbersome and costly. And because such review involves constitutional rights implicated by state adjudications, it necessarily will result in increased federal interference in state proceedings. The Court's implication to the contrary, see ante at 33, is belied by the Court's experience in the aftermath of Betts v. Brady. The Court was confronted with innumerable post-verdict challenges to the fairness of particular trials, and expended much [p52] energy in effect evaluating the performance of state judges. [n20] This level of intervention in the criminal processes of the States prompted Justice Frankfurter, speaking for himself and two others, to complain that the Court was performing as a "super legal aid bureau." Uveges v. Pennsylvania, 335 U.S. 437, 450 (1948) (dissenting opinion). I fear that the decision today may transform the Court into a "super family court."
The problem of inadequate representation is painfully apparent in the present case. Petitioner, Abby Gail Lassiter, is the mother of five children. The State moved to remove the fifth child, William, from petitioner's care on the grounds of parental neglect. Although petitioner received notice of the removal proceeding, she did not appear at the hearing and was not represented. In May, 1975, the State's District Court adjudicated William to be neglected under North Carolina law and placed him in the custody of the Durham County Department of Social Services. At some point, petitioner evidently arranged for the other four children to reside with and be cared for by her mother, Mrs. Lucille Lassiter. They remain under their grandmother's care at the present time.
As the Court notes, ante at 22, petitioner did not visit William after July, 1976. She was unable to do so, for she was imprisoned as a result of her conviction for second-degree murder. In December ,1977, she was visited in prison by a Durham County social worker who advised her that the Department planned to terminate her parental rights with respect to William. Petitioner immediately expressed strong [p53] opposition to that plan and indicated a desire to place the child with his grandmother. Hearing Tr. 15. After receiving a summons, a copy of the State's termination petition, and notice that a termination hearing would be held in August, 1978, petitioner informed her prison guards about the legal proceeding. They took no steps to assist her in obtaining legal representation, id. at 4; App. 1 to Reply to Brief in Opposition 4, nor was she informed that she had a right to counsel. [n21] Under these circumstances, it scarcely would be appropriate, or fair, to find that petitioner had knowingly and intelligently waived a right to counsel.
At the termination hearing, the State's sole witness was the county worker who had met petitioner on the one occasion at the prison. This worker had been assigned to William's case in August, 1977, yet much of her testimony concerned events prior to that date; she represented these events as contained in the agency record. Hearing Tr. 113. Petitioner failed to uncover this weakness in the worker's testimony. That is hardly surprising, for there is no indication that an agency record was introduced into evidence or was present in court, or that petitioner or the grandmother ever had an opportunity to review any such record. The social worker also testified about her conversations with members of the community. In this hearsay testimony, the witness reported the opinion of others that the grandmother could not handle the additional responsibility of caring for the fifth child. Id. at 14-15. There is no indication that these community members were unavailable to testify, and the County Attorney did not justify the admission of the hearsay. Petitioner made no objection to its admission. [p54]
The court gave petitioner an opportunity to cross-examine the social worker, id. at 19, but she apparently did not understand that cross-examination required questioning, rather than declarative statements. At this point, the judge became noticeably impatient with petitioner. [n22] Petitioner then [p55] took the stand, and testified that she wanted William to live with his grandmother and his siblings. The judge questioned her for a brief period, and expressed open disbelief at one of her answers. [n23] The final witness was the grandmother. Both the judge and the County Attorney questioned her. She denied having expressed unwillingness to take William into her home, and vehemently contradicted the social worker's statement that she had complained to the Department about her daughter's neglect of the child. [n24] Petitioner was not told that she could question her mother, and did not do so. [n25] The County Attorney made a closing argument, id. at 560, [p56]
It is perhaps understandable that the District Court Judge experienced difficulty and exasperation in conducting this hearing. But both the difficulty and the exasperation are attributable in large measure, if not entirely, to the lack of counsel. An experienced attorney might have translated petitioner's reaction and emotion into several substantive legal arguments. The State charged petitioner with failing to arrange a "constructive plan" for her child's future or to demonstrate a "positive response" to the Department's intervention. A defense would have been that petitioner had arranged for the child to be cared for properly by his grandmother, and evidence might have been adduced to demonstrate the adequacy of the grandmother's care of the other children. See, e.g. In re Valdez, 29 Utah 2d 63, 504 P.2d 1372 (1973); Welfare Commissioner v. Anonymous, 33 Conn.Supp. 100, 364 A.2d 250 (1976); Diernfeld v. People, 137 Colo. 238, 323 P.2d 628 (1958). See generally Moore v. East Cleveland, 431 U.S. at 504 (plurality opinion); id. at 508-510 (opinion of BRENNAN, J.). The Department's own "diligence" in promoting the family's integrity was never put in issue during the hearing, yet it is surely significant in light of petitioner's incarceration and lack of access to her child. See e.g., Weaver v. Roanoke Dept. of Human Resources, 220 Va. 921, 929, 265 S.E.2d 692, 697 (1980); In re Christopher H., 577 P.2d 1292, 1294 (Okla.1978); In re Kimberly I., 72 App.Div.2d 831, 833, 421 N.Y.S.2d 649, 651 (1979). Finally, the asserted willfulness of petitioner's lack of concern could obviously have been attacked, since she was physically unable to regain custody or perhaps even to receive meaningful visits during 21 of the 24 months preceding the action. Cf. In re Dinsmore, 36 N.C.App. 720, 245 S.E.2d 386 (1978). [p57]
Petitioner plainly has not led the life of the exemplary citizen or model parent. It may well be that, if she were accorded competent legal representation, the ultimate result in this particular case would be the same. But the issue before the Court is not petitioner's character; it is whether she was given a meaningful opportunity to be heard when the State moved to terminate absolutely her parental rights. [n26] In light of the unpursued avenues of defense, and of the experience petitioner underwent at the hearing, I find virtually incredible the Court's conclusion today that her termination proceeding was fundamentally fair. To reach that conclusion, the Court simply ignores the defendant's obvious inability to speak effectively for herself, a factor the Court has found to be highly significant in past cases. See Gagnon v. Scarpelli, 411 U.S. at 791; Uveges v. Pennsylvania, 335 U.S. at 441-442; Bute v. Illinois, 333 U.S. 640, 677 (1948). See also Vitek v. Jones, 445 U.S. at 496-497 (plurality opinion); id. at 498 (opinion of POWELL, J.). I am unable to ignore that factor; instead, I believe that the record, and the norms of [p58] fairness acknowledged by the majority, compel a holding according counsel to petitioner and persons similarly situated.
Finally, I deem it not a little ironic that the Court, on this very day, grants, on due process grounds, an indigent putative father's claim for state-paid blood grouping tests in the interest of according him a meaningful opportunity to disprove his paternity, Little v. Streater, ante, p. 1, but in the present case rejects, on due process grounds, an indigent mother's claim for state-paid legal assistance when the State seeks to take her own child away from her in a termination proceeding. In Little v. Streater, the Court stresses and relies upon the need for "procedural fairness," the "compelling interest in the accuracy of [the] determination," the "not inconsiderable" risk of error, the indigent's "fac[ing] the State as an adversary," and "fundamental fairness," ante at 13, 14, and 16.
There is some measure of inconsistency and tension here, it seems to me. I can attribute the distinction the Court draws only to a presumed difference between what it views as the "civil" and the "quasi-criminal," Little v. Streater, ante at 10. Given the factual context of the two cases decided today, the significance of that presumed difference eludes me.
Ours, supposedly, is "a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion), and our notion of due process is, "perhaps, the least frozen concept of our law." Griffin v. Illinois, 351 U.S. 12, 20 (1956) (opinion concurring in judgment). If the Court in Boddie v. Connecticut, 401 U.S. 371 (1971), was able to perceive as constitutionally necessary the access to judicial resources required to dissolve a marriage at the behest of private parties, surely it should perceive as similarly necessary the requested access to legal resources when the State itself seeks to dissolve the intimate and personal family bonds between parent and child. It will not open the "floodgates" that, I suspect, the Court [p59] fears. On the contrary, we cannot constitutionally afford the closure that the result in this sad case imposes upon us all.
I respectfully dissent.
1. In Scott v. Illinois, 440 U.S. 367 (1979), the Court's analysis of Sixth Amendment jurisprudence led to the conclusion that the right to counsel is not constitutionally mandated when imprisonment is not actually imposed.
2. See also Little v. Streater, ante at 5-6, 13-16; Smith v. Organization of Foster Families, 431 U.S. 816, 848-849 (1977); Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
3. Under North Carolina law, when a child is adjudged to be abused, neglected, or dependent, the dispositional alternatives are not couched in terms of permanence. See N.C.Gen.Stat. §§ 7A-647, 7A-651 (Supp.1979). In contrast, the State's termination statute specifically provides that an order terminating parental rights "completely and permanently terminates all rights and obligations" between parent and child, except that the child's right of inheritance continues until such time as the child may be adopted. § 7A-289.33. Such absolute and total termination is not unusual. See, e.g., Ariz.Rev.Stat.Ann. § 8-539 (1974); Cal.Civ.Code Ann. § 232.6 (West Supp.1981); Ind.Code § 31-6-5-6(a) (Supp.1980); Ky.Rev.Stat. § 199.613(2) (Supp.1980); Mo.Rev.Stat. § 211.482 (Supp.1980).
4. E.g., Davis v. Page, 640 F.2d 599, 604 (CA5 1981) (en banc); Brown v. Guy, 476 F.Supp. 771, 773 (Nev.1979); State ex rel. Lemaster v. Oakley, 157 W.Va. 590, 598, 203 S.E.2d 140, 144 (1974); Danforth v. State Dept. of Health & Welfare, 303 A.2d 794, 799-800 (Me.1973); In re Howard, 382 So.2d 194, 199 (La.App.1980).
5. See H.R.Rep. No. 95-1386, p. 22 (1978) ("removal of a child from the parents is a penalty as great, if not greater, than a criminal penalty. . . ."). This Report accompanied the Indian Child Welfare Act of 1978, Pub.L. 95-608, 92 Stat. 3069. Congress there provided for court-appointed counsel to indigent Indian parents facing a termination proceeding § 102 (b), 92 Stat. 3071, 25 U.S.C. § 1911 (b) (1976 ed., Supp. III) .
6. See, e.g., Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U.Pitt.L.Rev. 1, 52 (1973); Note, Child Neglect: Due Process for the Parent, 70 Colum.L.Rev. 465, 478 (1970); Representation in Child-Neglect Cases: Are Parents Neglected?, 4 Colum.J.L. & Soc.Prob. 230, 250 (1968) (Parent Representation Study).
7. JUSTICE POWELL agreed with the plurality that independent representation must be provided to an inmate facing involuntary transfer to a state mental hospital, but concluded that this representative need not be an attorney, because the transfer hearing was informal, and the central issue was a medical one. 445 U.S. at 498-500.
8. By emphasizing the value of physical liberty to the exclusion of all other fundamental interests, the Court today grafts an unnecessary and burdensome new layer of analysis onto its traditional three-factor balancing test. Apart from improperly conflating two distinct lines of prior cases, see supra at 35-38, the Court's reliance on a "rebuttable presumption" sets a dangerous precedent that may undermine objective judicial review regarding other procedural protections. Even in the area of juvenile court delinquency proceedings, where the threat of incarceration arguably supports an automatic analogy to the criminal process, the Court has eschewed a bright-line approach. Instead, it has evaluated each requested procedural protection in light of its consequences for fair play and truth determination. See generally McKeiver v. Pennsylvania, 403 U.S. 528 (1971); In re Winship, 397 U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967).
9. A petition for termination may also be filed by a private party, such as a judicially appointed guardian, a foster parent, or the other natural parent. N.C.Gen.Stat. § 7A-289.24 (Supp.1979). Because the State in those circumstances may not be performing the same adversarial and accusatory role, an application of the three Eldridge factors might yield a different result with respect to the right to counsel.
10. Significantly, the parent's rights and interests are not mentioned at all under the statement of purpose for the North Carolina termination statute. See N.C.Gen.Stat. § 7A-289.22 (Supp.1979). In contrast, in abuse, neglect, and dependency proceedings, the State has a statutory obligation to keep a family together whenever possible. § 7A-542. Thus, the State has chosen to provide counsel for parents, § 7A-587, in circumstances where it shares at least in part their interest in family integrity but not where it regards the parent as an opponent. The Assistant Attorney General of North Carolina explained the decision to furnish appointed counsel at the abuse and neglect stage by pointing to the State's need to avoid an awkward situation, given its possibly conflicting responsibilities to parent and child. Tr. of Oral Arg. 39-40. While this may be sound as a matter of public policy, it cannot excuse the failure to provide counsel at the termination stage, where the State and the indigent parent are adversaries, and the inequality of power and resources is starkly evident.
The possibility of providing counsel for the child at the termination proceeding has not been raised by the parties. That prospect requires consideration of interests different from those presented here, and again might yield a different result with respect to the right to counsel. See generally Parham v. J. R., 442 U.S. 584 (1979); Smith v. Organization of Foster Families, 431 U.S. 816 (1977).
11. Cf. Parham v. J.R., 442 U.S. at 606-607; Goldberg v. Kelly, 397 U.S. at 266.
12. See N.C.Gen.Stat. §§ 7A-289.32(1), 7A-289.32(3) (Supp.1977). Subdivision § 7A.289.32(1) was repealed by 1979 N.C.Sess.Laws, ch. 669, § 2.
13. Under North Carolina law, there is a further stage to the termination inquiry. Should the trial court determine that one or more of the conditions authorizing termination has been established, it then must consider whether the best interests of the child require maintenance of the parent-child relationship. N.C.Gen.Stat. § 7A-289.31 (a) (Supp.1979).
This Court more than once has adverted to the fact that the "best interests of the child" standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values. See, e.g., Smith v. Organization of Foster Families, 431 U.S. at 835, n. 36; Bellotti v. Baird, 443 U.S. 622, 655 (1979) (STEVENS, .J., concurring in judgment). See also Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Several courts, perceiving similar risks, have gone so far as to invalidate parental termination statutes on vagueness grounds. See, e.g., Alsager v. District Court of Polk County, 406 F.Supp. 10, 18-19 (SD Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976); Davis v. Smith, 266 Ark. 112, 121-123, 583 S.W.2d 37, 42-43 (1979).
14. See Schetky, Angell, Morrison, & Sack, Parents Who Fail: A Study of 51 Cases of Termination of Parental Rights, 18 J.Am.Acad.Child Psych. 366, 375 (1979) (citing minimal educational backgrounds). See also Davis v. Page, 442 F.Supp. 258, 260 (SD Fla.1977) (uncounseled parent, ignorant of governing substantive law, "was little more than a spectator in the adjudicatory [dependency] proceeding," and "sat silently through most of the hearing . . . fearful of antagonizing the social workers"), aff'd in part, 640 F.2d 599 (CA5 1981) (en banc).
15. See Parent Representation Study at 241 (parents appearing in Kings County, N.Y. Family Court, charged with neglect and represented by counsel, had higher rate of dismissed petitions, 25% to 7.9%, and lower rate of neglect adjudications, 62.5% to 79.5%, than similarly charged parents appearing without counsel); Brief for Respondent 38-39, 25a-31a (study of state-initiated termination actions in 73 North Carolina counties; parent prevailed in 5.5% of proceedings where represented by counsel, and in 0.15% of proceedings where unrepresented).
While these statistics hardly are dispositive, I do not share the Court's view, ante at 29-30, n. 5, that they are "unilluminating." Since no evidence in either study indicates that the defendant parent who can retain or is offered counsel is less culpable than the one who appears unrepresented, it seems reasonable to infer that a sizable number of cases against unrepresented parents end in termination solely because of the absence of counsel. In addition, as the Court acknowledges, ante at 30, n. 5, the judges who preside over termination hearings perceive them as less fair when the parent is without counsel.
16. The Court apparently shares this view. See ante at 27-28.
17. Thus, for example, the State's involvement in adjudicating the competing claims for child custody between parents in a divorce proceeding need not obligate it to provide counsel for indigent parents.
18. The Court's decision in Gagnon v. Scarpelli, 411 U.S. 778 (1973), is not to the contrary. In Scarpelli, the Court determined that due process requires an individualized approach to requests for counsel by probationers facing revocation. The rule established there was based on respect for the rehabilitative focus of the probation system, the informality of probation proceedings, and the diminished liberty interest of an already-convicted probationer. Id. at 785-789. None of these elements is present here. See also Wolff v. McDonnell, 418 U.S. 539, 569-570 (1974).
19. Of course, the case-by-case approach announced by the Court today places an even heavier burden on the trial court, which will be required to determine in advance what difference legal representation might make. A trial judge will be obligated to examine the State's documentary and testimonial evidence well before the hearing, so as to reach an informed decision about the need for counsel in time to allow adequate preparation of the parent's case.
20. See, e.g., Quicksall v. Michigan, 339 U.S. 660 (1950); Uveges v. Pennsylvania, 335 U.S. 437 (1948); Bute v. Illinois, 333 U.S. 640 (1948); Marino v. Ragell, 332 U.S. 561 (1947); Hawk v. Olson, 326 U.S. 271 (1945); Tomkins v. Missouri, 323 U.S. 485 (1945). See generally W. Beaney, The Right to Counsel in American Courts 160-198 (1955).
21. During her imprisonment, petitioner had spoken with an attorney concerning her criminal conviction. She did not discuss the termination proceeding with this lawyer, and he has stated under oath that, in view of her indigency, he would not have been interested in representing her at that proceeding even had she asked him to do so. App. 111, 16.
22. Hearing Tr.19-20:
THE COURT: All right. Do you want to ask her any questions?
[PETITIONER]: About what? About what she --
THE COURT: About this child.
[PETITIONER]: Oh, yes.
THE COURT: All right. Go ahead.
[PETITIONER]: The only thing I know is that, when you say --
THE COURT: I don't want you to testify.
THE COURT: I want to know whether you want to cross-examine her or ask any questions.
[PETITIONER]: Yes, I want to. Well, you know, the only thing I know about is my part that I know about it. I know --
THE COURT: I am not talking about what you know. I want to know if you want to ask her any questions or not.
[PETITIONER]: About that?
THE COURT: Yes. Do you understand the nature of this proceeding?
THE COURT: And that is to terminate any rights you have to the child and place it for adoption, if necessary.
[PETITIONER]: Yes, I know.
THE COURT: Are there any questions you want to ask her about what she has testified to?
THE COURT: All right. Go ahead.
[PETITIONER]: I want to know why you think you are going to turn my child over to a foster home? He knows my mother and he knows all of us. He knows her and he knows all of us.
THE COURT: Who is he?
[PETITIONER]: My son, William.
[SOCIAL WORKER]: Ms. Lassiter, your son has been in foster care since May of 1975, and since that time --
[PETITIONER]: Yeah, yeah and I didn't know anything about it either.
23. Id. at 30:
[THE COURT]: Did you know that your mother filed a complaint on the 8th day of May, 1975? . . .
A: No, 'cause she said she didn't file no complaint.
[THE COURT]: That was some ghost who came up here and filed it I suppose.
The judge concluded his questioning by saying to the County Attorney: "All right, Mr. Odom, see what you can do." Id. at 36.
24. This latter denial produced the following reaction from the court, id. at 55:
Q [from respondent]: Did you tell Ms. Mangum on the 8th day of May, 1975, that, when your daughter was in the hospital having William, that she left the children in the cold house with no heat?
A: No, sir, no, sir, unh unh, no, sir.
[PETITIONER]: That's a lie.
A: No, sir, no, sir. God knows, I'll raise my right hand to God and die saying that. Somebody else told that.
THE COURT: I wish you wouldn't talk like that it scares me to be in the same room with you.
25. The judge had initiated the examination of Mrs. Lassiter; subsequently he expressed exasperation with the rambling quality of her answers, id. at 52:
THE COURT: I tell you what, let's just stop all this. You question her, please. Just answer his questions. We'll be here all day at this rate. I mean, we are just wasting time, we're skipping from one subject to another --
CROSS-EXAMINATION BY [RESPONDENT]; . . .
26. Unfortunately, the Court does not confine itself to the issue at hand. By going outside the official record of this case, ante at 20-21, n. 1, to unearth and recite details of petitioner's second-degree murder conviction set forth in an unpublished state appellate opinion, see State v. Lassiter, 33 N.C.App. 405, 235 S.E.2d 289 (1977); Rule 30(e)(3), N.C. Rules of Appellate Procedure, N.C.Gen.Stat. (Supp.1979 to vol. 4A), the Court apparently believes it has contributed evidence relevant to petitioner's fitness as a parent, and perhaps to the fitness of petitioner's mother as well. But while some States retain statutes permitting parental rights to be terminated upon a parent's criminal conviction, North Carolina is not among them. See N.C.Gen.Stat. § 7A-289.32 (Supp.1979). See Note, On Prisoners and Parenting: Preserving the Tie that Binds, 87 Yale L.J. 1408, 1409-1410 (1978). Reliance on such evidence is likely to encourage the kind of subjective value judgments that an adversarial judicial proceeding is meant to avoid.