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101 S.Ct. 2153
68 L.Ed.2d 640
(Cite as:
452 U.S. 18, 101 S.Ct. 2153)
0
Supreme Court of the United States
Abby Gail LASSITER, Petitioner,
v.
DEPARTMENT OF SOCIAL SERVICES OF DURHAM COUNTY, NORTH
CAROLINA.
No. 79‑6423.
Argued Feb. 23, 1981.
Decided June 1, 1981.
Rehearing Denied Aug. 28, 1981.
See 453 U.S. 927, 102 S.Ct. 889.
The District Court, Durham County, Samuel F.
Gantt, J., terminated a mother's parental rights and appeal was taken. The North Carolina Court of Appeals, Robert
M. Martin, J., 43 N.C.App. 525, 259 S.E.2d 336 affirmed, and
certiorari was granted. The Supreme
Court, Justice Stewart, held that failure to appoint counsel for indigent
parents in proceeding for termination of parental status did not deprive parent
of due process in light of circumstances which included that petition contained
no allegations upon which criminal charges could be based, no expert witnesses
testified, case presented no specially troublesome points of law, and presence
of counsel could not have made a determinative difference for petitioner; such decision does not imply that
appointment of counsel is other than enlightened and wise.
Affirmed.
Chief Justice Burger filed concurring
opinion.
Justice Blackmun filed a dissenting opinion
in which Justice Brennan and Justice Marshall joined.
Justice Stevens filed dissenting opinion.
West Headnotes
[1]
Constitutional Law 
0251
92k251 Most
Cited Cases
Due process
has never been, and perhaps can never be, precisely defined. U.S.C.A.Const. Amend. 14.
[2]
Constitutional Law 
0251
92k251 Most
Cited Cases
Due
process expresses requirement of fundamental fairness. U.S.C.A.Const. Amend. 14.
[3]
Constitutional Law 
0252.5
92k252.5 Most
Cited Cases
Applying
the due process clause is an uncertain enterprise which must discover what
fundamental fairness consists of in a particular situation by first considering
any relevant precedents and then by assessing the several interests that are at
stake. U.S.C.A.Const. Amend. 14.
[4] Trial 
021
388k21 Most
Cited Cases
The
preeminent generalization that emerges from United States Supreme Court's
precedents on an indigent's right to appointed counsel is that such a right has
been recognized to exist only where the litigant may lose his physical liberty
if he loses the litigation. U.S.C.A.Const.
Amend. 6, 14.
[5] Trial 
021
388k21 Most
Cited Cases
As a
litigant's interest in personal liberty diminishes, so does his right to
appointed counsel. U.S.C.A.Const.
Amend. 14.
[6]
Constitutional Law 
0317(2)
92k317(2) Most
Cited Cases
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 and the
other element of the due process decision, i. e., the private interest at
stake, the government's interest, and the risk that the procedures used will
lead to erroneous decision, must be balanced against each other and then
weighed against the presumption. U.S.C.A.Const.
Amends. 6, 14.
[7] Child
Custody 
022
76Dk22 Most
Cited Cases
(Formerly
285k2(1))
A
parent's desire for and right to the companionship, care, custody, and
management of his or her children is an important interest that undeniably
warrants deference and, absent a powerful countervailing interest,
protection. N.C.G.S. §§ 7A‑289.24,
7A‑289.25(6), 7A‑289.27, to 7A‑
289.30, 7A‑289.34, 7A‑587.
[8]
Infants 
0205
211k205 Most
Cited Cases
Parent's
interest in accuracy and justice of decision to terminate parental status is an
extremely important one. N.C.G.S.
§§ 7A‑289.24, 7A‑ 289.25(6), 7A‑289.27,
to 7A‑289.30, 7A‑289.34, 7A‑587.
[9]
Infants 
0194.1
211k194.1 Most
Cited Cases
(Formerly
211k194)
[9]
Infants 
0205
211k205 Most
Cited Cases
In a
proceeding to terminate parental status, the state shares with the parent an
interest in a correct decision, has a relatively weak pecuniary interest in
avoiding the expense of appointed counsel and cost of lengthened proceedings
his presence may cause, and, in some but not all cases, has a possibly stronger
interest in informal procedure. N.C.G.S.
§§ 7A‑289.24, 7A‑289.25(6), 7A‑289.27,
to 7A‑289.30, 7A‑289.34, 7A‑587; U.S.C.A.Const. Amends. 6, 14.
[10]
Infants 
0205
211k205 Most
Cited Cases
Complexity
of proceeding to terminate parental status and incapacity of uncounselled parent
could be, but would not always be, great enough to make risk of an erroneous
deprivation of parent's rights insupportably high. N.C.G.S. §§ 7A‑289.24,
7A‑289.25(6), 7A‑289.27, to 7A‑289.30,
7A‑289.34, 7A‑587; U.S.C.A.Const. Amends. 6, 14.
[11] Constitutional
Law 
0274(5)
92k274(5) Most
Cited Cases
If, in
a given proceeding for termination of parental status, 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 due process did
not require appointment of counsel. N.C.G.S.
§§ 7A‑289.24, 7A‑289.25(6), 7A‑289.27,
7A‑289.29, 7A‑289.30, 7A‑289.34,
7A‑ 587; U.S.C.A.Const.
Amend. 14.
[12]
Constitutional Law 
0274(5)
92k274(5) Most
Cited Cases
Constitution
does not require appointment of counsel in every parental termination
proceeding and decision whether due process calls for appointment of counsel
for indigent parent in such proceedings must be answered in first instance by
trial court subject to appellate review.
N.C.G.S. §§ 7A‑289.24 7A‑289.25(6),
7A‑289.27, 7A‑289.29, 7A‑289.30,
7A‑289.34, 7A‑ 587; U.S.C.A.Const. Amend. 14.
[13]
Constitutional Law 
0274(5)
92k274(5) Most
Cited Cases
Failure
to appoint counsel for indigent parents in proceeding for termination of
parental status didnot deprive parent of due process in light of circumstances which
included that petition contained no allegations upon which criminal charges
could be based, no expert witnesses testified, case presented no specially
troublesome points of law, and presence of counsel could not have made a
determinative difference for petitioner;
such decision does not imply that appointment of counsel is other than
enlightened and wise. N.C.G.S. §§
7A‑289.24, 7A‑289.25(6), 7A‑289.27,
7A‑289.29, 7A‑289.30, 7A‑
289.34, 7A‑587;
U.S.C.A.Const. Amend. 14.
[14]
Constitutional Law 
0305(1)
92k305(1) Most
Cited Cases
Fourteenth
Amendment imposes on state the standards necessary to ensure it that judicial
proceedings are fundamentally fair. U.S.C.A.Const.
Amend. 14.
[15]
Constitutional Law 
0251
92k251 Most
Cited Cases
A wise
public policy may require that higher standards be adopted than those minimally
tolerable under the Constitution. U.S.C.A.Const.
Amend. 14.
**2155 Syllabus [FN*]
FN* The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of Decisions for
the convenience of the reader. See United
States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287,
50 L.Ed. 499.
*18
In 1975, a North Carolina state court adjudicated petitioner's infant
son to be a neglected child and transferred him to the custody of respondent
Durham County Department of Social Services.
A year later, petitioner was convicted of second‑degree murder,
and she began a sentence of 25 to 40 years of imprisonment. In 1978, respondent petitioned the court to
terminate petitioner's parental rights.
Petitioner was brought from prison to the hearing on the petition, and
the court, after determining, sua sponte, that she had been given ample
opportunity to obtain counsel and that her failure to do so was without just
cause, did not postpone the proceedings.
Petitioner did not aver that she was indigent, and the court did not
appoint counsel for her. At the hearing, petitioner cross‑examined a
social worker from respondent, and both petitioner and her mother testified
under the court's questioning. The
court thereafter terminated petitioner's parental status, finding that she had
not contacted respondent about her child since December 1975, and that she had
"wilfully failed to maintain concern or responsibility for the welfare of
the minor." The North Carolina
Court of Appeals rejected petitioner's sole contention on appeal that because
she was indigent, the Due Process Clause of the Fourteenth Amendment required
the State to provide counsel for her.
The North Carolina Supreme Court summarily denied discretionary review.
Held :
1. The Constitution does not require the
appointment of counsel for indigent parents in every parental status
termination proceeding. The decision
whether due process calls for the appointment of counsel is to be answered in
the first instance by the trial court, subject to appellate review. Pp. 2158‑2162.
(a) With regard to what the "fundamental
fairness" requirement of the Due Process Clause means concerning the right
to appointed counsel, 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. The other elements
of the due process decision‑‑the private interest at stake, the
government's interest, and the risk that the procedures used will lead to
erroneous decisions, *19Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18‑‑must
be balanced against each other and then weighed against the presumption. Pp. 2158‑2160.
(b) The parent's interest in the accuracy and
justice of the decision to terminate parental status is an extremely important
one (and may be supplemented by the dangers of criminal liability inherent in
some termination proceedings); the
State shares with the parent an interest in a correct decision, has a
relatively weak pecuniary interest in avoiding the expense of appointed counsel
and the cost of the lengthened proceedings his presence may cause, and, in some
but not all cases, has a possibly **2156 stronger interest in informal
procedures; and the complexity of the
proceeding and the incapacity of the uncounseled parent could be, but would not
always be, great enough to make the risk of an erroneous deprivation of the
parent's rights insupportably high.
Thus 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, the Eldridge factors would overcome the presumption
against the right to appointed counsel, and due process would require
appointment of counsel. Pp. 2159‑2162.
2. In the circumstances of this case, the trial
judge did not deny petitioner due process of law when he did not appoint
counsel for her. The record shows, inter
alia, that the petition to terminate petitioner's parental rights contained
no allegations of neglect or abuse upon which criminal charges could be
based; no expert witnesses
testified; the case presented no
specially troublesome points of law;
the presence of counsel could not have made a determinative difference
for petitioner; she had expressly
declined to appear at the 1975 child custody hearing; and the trial court found that her failure to make an effort to
contest the termination proceeding was without cause. Pp. 2162‑2163.
43 N.C.App. 525, 259 S.E.2d 336,
affirmed.
Leowen Evans, Raleigh, N.C., for petitioner,
pro hac vice, by special leave of Court.
Thomas Russell Odom, Bolton, N.C., for
respondent.
*20 Steven Mansfield Shaber, Raleigh,
N.C., for state of North Carolina, as amicus curiae, by special leave of Court.
Justice STEWART delivered the opinion of the
Court.
I
In the late spring of 1975, after hearing
evidence that the petitioner, Abby Gail Lassiter, had not provided her infant
son William with proper medical care, the District Court of Durham County, N.
C., adjudicated him a neglected child and transferred him to the custody of the
Durham County Department of Social Services, the respondent here. A year later, Ms. Lassiter was charged with
first‑degree murder, was convicted of second‑degree murder, and
began a sentence of 25 to 40 years of imprisonment. [FN1] In 1978 the Department *21 petitioned
the court to terminate Ms. Lassiter's parental rights because, the 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 **2157 strengthen her relationship to the child, or to make
and follow through with constructive planning for the future of the
child."
FN1. The North Carolina Court of Appeals,
in reviewing the petitioner's conviction, indicated that the murder occurred
during an altercation between Ms. Lassiter, her mother, and the deceased:
"Defendant's mother told [the deceased] to 'come
on.' They began to struggle and
deceased fell or was knocked to the floor.
Defendant's mother was beating deceased with a broom. While deceased was still on the floor and
being beaten with the broom, defendant entered the apartment. She went into the
kitchen and got a butcher knife. She
took the knife and began stabbing the deceased who was still prostrate. The body of deceased had seven stab
wounds...." State v. Lassiter,
No. 7614SC1054 (June 1, 1977).
After her conviction was affirmed on appeal, Ms. Lassiter
sought to attack it collaterally.
Among her arguments was that the assistance of her trial counsel had
been ineffective because he had failed to "seek to elicit or introduce
before the jury the statement made by [Ms. Lassiter's mother,] 'And I did it, I
hope she dies.' " Ms. Lassiter's
mother had, like Ms. Lassiter, been indicted on a first‑degree murder
charge; however, the trial court
granted the elder Ms. Lassiter's motion for a nonsuit. The North Carolina General Court of
Justice, Superior Court Division, denied Ms. Lassiter's motion for collateral
relief. File No. 76‑CR‑3102
(Mar. 20, 1979.)
Ms. Lassiter was served with the petition and
with notice that a hearing on it would be held. Although her mother had retained counsel for her in connection
with an effort to invalidate the murder conviction, Ms. Lassiter never
mentioned the forthcoming hearing to him (or, for that matter, to any other
person except, she said, to "someone" in the prison). At the behest of the Department of Social
Services' attorney, she was brought from prison to the hearing, which was held
August 31, 1978. The hearing opened,
apparently at the judge's insistance, with a discussion of whether Ms. Lassiter
should have more time in which to find legal assistance. *22
Since the court concluded that she "has had ample opportunity to
seek and obtain counsel prior to the hearing of this matter, and [that] her
failure to do so is without just cause," the court did not postpone the
proceedings. Ms. Lassiter did not aver
that she was indigent, and the court did not appoint counsel for her.
A social worker from the respondent Department
was the first witness. She testified
that in 1975 the Department "received a complaint from Duke Pediatrics
that William had not been followed in the pediatric clinic for medical problems
and that they were having difficulty in locating Ms. Lassiter...." She said that in May 1975 a social worker
had taken William to the hospital, where doctors asked that he stay
"because of breathing difficulties [and] malnutrition and [because] there
was a great deal of scarring that indicated that he had a severe infection that
had gone untreated." The witness
further testified that, except for one "prearranged" visit and a
chance meeting on the street, Ms. Lassiter had not seen William after he had come
into the State's custody, and that neither Ms. Lassiter nor her mother had
"made any contact with the Department of Social Services regarding that
child." When asked whether
William should be placed in his grandmother's custody, the social worker said
he should not, since the grandmother "has indicated to me on a number of
occasions that she was not able to take responsibility for the child" and
since "I have checked with people in the community and from Ms. Lassiter's
church who also feel that this additional responsibility would be more than she
can handle." The social worker
added that William "has not seen his grandmother since the chance meeting
in July of '76 and that was the only time."
After the direct examination of the social
worker, the judge said:
"I notice we made extensive findings in June of '75
that you were served with papers and called the social *23 services and
told them you weren't coming; and the serious lack of medical treatment. And, as I have said in my findings of the
16th day of June '75, the Court finds that the grandmother, Ms. Lucille
Lassiter, mother of Abby Gail Lassiter, filed a complaint on the 8th day of
May, 1975, alleging that the daughter often left the children, Candina, Felicia
and William L. with her for days without providing money or food while she was
gone.''
Ms. Lassiter conducted a cross‑examination
of the social worker, who firmly reiterated her earlier testimony. The judge explained several times, with
varying degrees of clarity, that Ms. Lassiter should only ask questions at this
stage; many of her questions were
disallowed because they were not really questions, but arguments.
Ms. Lassiter herself then testified, under
the judge's questioning, that she had properly cared for William. Under cross‑examination, she said
that she had seen William more than five or six times after he had been taken
from her custody and that, if William could not be with her, she wanted him to
be with her mother since "He knows us.
Children know they family....
They know they people, they know they family and that child knows us
anywhere.... I got four more other
children. Three girls and a boy and
they know they little brother when they see him."
**2158 Ms. Lassiter's mother was then
called as a witness. She denied, under
the questioning of the judge, that she had filed the complaint against Ms.
Lassiter, and on cross‑examination she denied both having failed to visit
William when he was in the State's custody and having said that she could not
care for him.
The court found that Ms. Lassiter "has
not contacted the Department of Social Services about her child since December,
1975, has not expressed any concern for his care and welfare, and has made no
efforts to plan for his future." Because *24 Ms. Lassiter thus had
"wilfully failed to maintain concern or responsibility for the welfare of
the minor," and because it was "in the best interests of the
minor," the court terminated Ms. Lassiter's status as William's parent.
[FN2]
FN2. The petition had also asked that the
parental rights of the putative father, William Boykin, be terminated. Boykin was not married to Ms. Lassiter, he
had never contributed to William's financial support, and indeed he denied that
he was William's father. The court
granted the petition to terminate his alleged parental status.
On appeal, Ms. Lassiter argued only 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. The North Carolina Court of Appeals decided
that "[w]hile this State action does invade a protected area of individual
privacy, the invasion is not so serious or unreasonable as to compel us to hold
that appointment of counsel for indigent parents is constitutionally
mandated." In re Lassiter,
43 N.C.App. 525, 527, 259 S.E.2d 336, 337. The Supreme Court of North Carolina summarily denied Ms.
Lassiter's application for discretionary review, 299 N.C. 120, 262 S.E.2d
6, and we granted certiorari to consider the petitioner's claim under
the Due Process Clause of the Fourteenth Amendment, 449 U.S. 819, 101
S.Ct. 70, 66 L.Ed.2d 21.
II
[1][2][3] For all its
consequence, "due process" has never been, and perhaps can never be,
precisely defined. "[U]nlike some
legal rules," this Court has said, due process "is not a technical
conception with a fixed content unrelated to time, place and
circumstances." Cafeteria
Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6
L.Ed.2d 1230. Rather, the phrase
expresses the requirement of "fundamental fairness," a requirement
whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is
therefore an uncertain enterprise which *25 must discover what "fundamental fairness" consists of
in a particular situation by first considering any relevant precedents and then
by assessing the several interests that are at stake.
A
[4] The pre‑eminent
generalization that emerges from this Court's precedents on an indigent's right
to appointed counsel is that such a right has been recognized to exist only
where the litigant may lose his physical liberty if he loses the
litigation. Thus, when the Court
overruled the principle of Betts v. Brady, 316 U.S. 455, 62
S.Ct. 1252, 86 L.Ed. 1595, that counsel in criminal trials need be
appointed only where the circumstances in a given case demand it, the Court did
so in the case of a man sentenced to prison for five years. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799. And thus Argersinger v. Hamlin, 407
U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, established that counsel must
be provided before any indigent may be sentenced to prison, even where the
crime is petty and the prison term brief.
That it is the defendant's interest in
personal freedom, and not simply the special Sixth and Fourteenth Amendments
right to counsel in criminal cases, which triggers the right to appointed
counsel is demonstrated by the Court's announcement in In re Gault,
387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, that "the Due Process
Clause of the Fourteenth **2159 Amendment requires that in respect of
proceedings to determine delinquency which may result in commitment to an
institution in which the juvenile's freedom is curtailed," the
juvenile has a right to appointed counsel even though proceedings may be styled
"civil" and not "criminal." Id., at 41, 87 S.Ct., at 1451
(emphasis added). Similarly, four of
the five Justices who reached the merits in Vitek v. Jones,
445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552, concluded that an
indigent prisoner is entitled to appointed counsel before being involuntarily
transferred for treatment to a state mental hospital. The fifth Justice differed from the other four only in declining
to exclude the "possibility that the required assistance *26 may be
rendered by competent laymen in some cases." Id., at 500, 100 S.Ct., at 1267
(separate opinion of POWELL, J.).
[5] Significantly, as a
litigant's interest in personal liberty diminishes, so does his right to appointed
counsel. In Gagnon v.
Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the
Court gauged the due process rights of a previously sentenced probationer at a
probation‑revocation hearing. In
Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593,
2599, 33 L.Ed.2d 484, which involved an analogous hearing to revoke
parole, the Court had said: "Revocation deprives an individual, not of the
absolute liberty to which every citizen is entitled, but only of the
conditional liberty properly dependent on observance of special parole
restrictions." Relying on that
discussion, the Court in Scarpelli declined to hold that indigent
probationers have, per se, a right to counsel at revocation hearings,
and instead left the decision whether counsel should be appointed to be made on
a case‑by‑case basis.
Finally, the Court has refused to extend the
right to appointed counsel to include prosecutions which, though criminal, do
not result in the defendant's loss of personal liberty. The Court in Scott v. Illinois,
440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, for instance, interpreted
the "central premise of Argersinger" to be "that actual
imprisonment is a penalty different in kind from fines or the mere threat of
imprisonment," and the Court endorsed that premise as "eminently
sound and warrant[ing] adoption of actual imprisonment as the line defining the
constitutional right to appointment of counsel." Id., 440 U.S., at 373, 99 S.Ct., at 1162. The Court thus held "that the Sixth
and Fourteenth Amendments to the United States Constitution require only that
no indigent criminal defendant be sentenced to a term of imprisonment unless
the State has afforded him the right to assistance of appointed counsel in his
defense." Id.,
at 373‑374, 99 S.Ct., at 1162.
[6] In sum, the Court's
precedents speak with one voice about what
"fundamental fairness" has meant when the Court has considered
the right to appointed counsel, and we thus draw from them the presumption that
an indigent litigant has a *27 right to appointed counsel only when, if
he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in
the due process decision must be measured.
B
The case of Mathews v. Eldridge,
424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, propounds three
elements to be evaluated in deciding what due process requires, viz., the
private interests at stake, the government's interest, and the risk that the
procedures used will lead to erroneous decisions. We 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.
[7] This Court's decisions have
by now made plain beyond the need for multiple citation that a parent's desire
for and right to "the companionship, care, custody and management of his
or her children" is an important interest that "undeniably warrants
deference and, absent a powerful **2160 countervailing interest,
protection." Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.
551. Here the State has sought not
simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of
deprivation. Cf. May v.
Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221; Armstrong v. Manzo, 380
U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. A parent's interest in the accuracy and injustice of the
decision to terminate his or her parental status is, therefore a commanding
one. [FN3]
FN3. Some parents will have an additional
interest to protect. Petitions to terminate parental rights are not uncommonly
based on alleged criminal activity.
Parents so accused may need legal counsel to guide them in understanding
the problems such petitions may create.
Since the State has an urgent interest in the
welfare of the child, it shares the parent's interest in an accurate and just
decision. For this reason, the State
may share the indigent parent's interest in the availability of appointed
counsel. *28 If, as our
adversary system presupposes, accurate and just results are most likely to be
obtained through the equal contest of opposed interests, the State's interest
in the child's welfare may perhaps best be served by a hearing in which both
the parent and the State acting for the child are represented by counsel,
without whom the contest of interests may become unwholesomely unequal. North Carolina itself acknowledges as much
by providing that where a parent files a written answer to a termination
petition, the State must supply a lawyer to represent the child. N.C. Gen.Stat. § 7A‑ 289.29
(Supp.1979).
The State's interests, however, clearly diverge
from the parent's insofar as the State wishes the termination decision to be
made as economically as possible and thus wants to avoid both the expense of
appointed counsel and the cost of the lengthened proceedings his presence may
cause. But though the State's
pecuniary interest is legitimate, it is hardly significant enough to overcome
private interests as important as those here, particularly in light of the
concession in the respondent's brief that the "potential costs of
appointed counsel in termination proceedings ... is [sic] admittedly de
minimis compared to the costs in all criminal actions."
Finally, consideration must be given to the
risk that a parent will be erroneously deprived of his or her child because the
parent is not represented by counsel.
North Carolina law now seeks to assure accurate decisions by
establishing the following procedures:
A petition to terminate parental rights may be filed only by a parent
seeking the termination of the other parent's rights, by a county department of
social services or licensed child‑placing agency with custody of the
child, or by a person with whom the child has lived continuously for the two
years preceding the petition. §
7A‑289.24. A petition
must describe facts sufficient to warrant a finding that one of the grounds for
termination exists, § 7A‑289.25(6), and the parent must be
notified of the petition and given 30 days in which to file a written answer to
it, *29 § 7A‑289.27. If that answer denies a material allegation, the court must, as
has been noted, appoint a lawyer as the child's guardian ad litem and
must conduct a special hearing to resolve the issues raised by the petition and
the answer. § 7A‑289.29. If the parent files no answer, "the
court shall issue an order terminating all parental and custodial rights ...;
provided the court shall order a hearing on the petition and may examine the
petitioner or others on the facts alleged in the petition." §
7A‑289.28. Findings of fact are made by a court sitting without a
jury and must "be based on clear, cogent, and convincing
evidence." § 7A‑289.30. Any party may appeal who gives notice of
appeal within 10 days after the hearing.
§ 7A‑ 289.34. [FN4]
FN4. The respondent also points out that
parental termination hearings commonly occur only after a custody proceeding in
which the child has judicially been found to be abused, neglected, or
dependent, and that an indigent parent has a right to be represented by
appointed counsel at the custody hearing.
§ 7A‑587.
Ms. Lassiter's hearing occurred before some of these
provisions were enacted. She did not,
for instance, have the benefit of the "clear, cogent, and convincing"
evidentiary standard, nor did she have counsel at the hearing in which William
was taken from her custody.
**2161 The respondent argues that the
subject of a termination hearing‑‑the parent's relationship with
her child‑‑far from being abstruse, technical, or unfamiliar, is
one as to which the parent must be uniquely well informed and to which the
parent must have given prolonged thought.
The respondent also contends that a termination hearing is not likely to
produce difficult points of evidentiary law, or even of substantive law, since
the evidentiary problems peculiar to criminal trials are not present and since
the standards for termination are not complicated. In fact, the respondent reports, the North Carolina Departments
of Social Services are themselves sometimes represented at termination hearings
by social workers instead of by lawyers. [FN5]
FN5. Both the respondent and the Columbia
Journal of Law and Social Problems, 4 Colum.J.L. & Soc.Prob. 230 (1968),
have conducted surveys purporting to reveal whether the presence of counsel reduces
the number of erroneous determinations in parental termination proceedings.
Unfortunately, neither survey goes beyond presenting statistics which, standing
alone, are unilluminating. The Journal
note does, however, report that it questioned the New York Family Court judges
who preside over parental termination hearings and found that 72.2% of them
agreed that when a parent is unrepresented, it becomes more difficult to
conduct a fair hearing (11.1% of the judges disagreed); 66.7% thought it became difficult to develop
the facts (22.2% disagreed).
*30
Yet the ultimate issues with which a termination hearing deals are not
always simple, however commonplace they may be. Expert medical and psychiatric testimony, which few parents are
equipped to understand and fewer still to confute, is sometimes presented. The parents are likely to be people with
little education, who have had uncommon difficulty in dealing with life, and
who are, at the hearing, thrust into a distressing and disorienting situation. That these factors may combine to overwhelm
an uncounseled parent is evident from the findings some courts have made. See, e. g. Davis v. Page,
442 F.Supp. 258, 261 (SD Fla.1977);
State v. Jamison, 251 Or. 114, 117‑118,
444 P.2d 15, 17 (1968). Thus,
courts have generally held that the State must appoint counsel for indigent
parents at termination proceedings. State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399
N.E.2d 66 (1980); Department of Public Welfare v. J. K. B.,
379 Mass. 1, 393 N.E.2d 406 (1979);
In re Chad S., 580 P.2d 983 (Okl.1978); In re Myricks, 85
Wash.2d 252, 533 P.2d 841 (1975);
Crist v. Division of Youth and Family Services, 128
N.J.Super. 402, 320 A.2d 203 (1974);
Danforth v. Maine Dept. of Health and Welfare, 303
A.2d 794 (Me.1973); In
re Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973). [FN6] The respondent is able to point to no
presently authoritative case, except for the North Carolina *31 judgment now before us, holding
that an indigent parent has no due process right to appointed counsel in
termination proceedings.
FN6. A number of courts have held that
indigent parents have a right to appointed counsel in child dependency or
neglect hearings as well. E. g., Davis v. Page,
640 F.2d 599 (CA5 1981) (en banc);
Cleaver v. Wilcox, 499 F.2d 940 (CA9 1974)
(right to be decided case by case); Smith v. Edmiston, 431
F.Supp. 941 (WD Tenn.1977).
C
[8][9][10] The dispositive
question, which must now be addressed, is whether the three Eldridge
factors, when weighed against the presumption that there is no right to
appointed counsel in the absence of at least a potential deprivation of
physical liberty, suffice to rebut that presumption and thus to lead to the
conclusion that the Due Process Clause requires the appointment of counsel when
a State seeks to terminate an indigent's parental status. To summarize the above discussion of the Eldridge
factors: the parent's interest is an
extremely important one (and may be supplemented by the dangers of criminal
liability inherent in some termination proceedings); the State shares with the parent an **2162 interest in a
correct decision, has a relatively weak pecuniary interest, and, in some but
not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the
incapacity of the uncounseled parent could be, but would not always be, great
enough to make the risk of an erroneous deprivation of the parent's rights
insupportably high.
[11][12] 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 since the Eldridge
factors will not always be so distributed, and since "due process is not
so rigid as to require that the significant interests in informality,
flexibility and economy must always be sacrificed," Gagnon v.
Scarpelli, 411 U.S., at 788, 93 S.Ct., at 1762, neither can
we say that the Constitution requires the appointment of counsel in every
parental termination proceeding. We therefore adopt the standard found appropriate
in Gagnon v. Scarpelli, *32 and leave the decision whether due
process calls for the appointment of counsel for indigent parents in
termination proceedings to be answered in the first instance by the trial
court, subject, of course, to appellate review. See, e. g., Wood v. Georgia, 450 U.S. 261,
101 S.Ct. 1097, 67 L.Ed.2d 220.
III
Here, as in Scarpelli, "[i]t is
neither possible nor prudent to attempt to formulate a precise and detailed set
of guidelines to be followed in determining when the providing of counsel is
necessary to meet the applicable due process requirements," since here, as
in that case, "[t]he facts and circumstances ... are susceptible of almost
infinite variation...." 411
U.S., at 790, 93 S.Ct., at 1764.
Nevertheless, because child‑custody litigation must be concluded
as rapidly as is consistent with fairness, [FN7] we decide today whether the trial judge denied Ms.
Lassiter due process of law when he did not appoint counsel for her.
FN7. According to the respondent's brief,
William Lassiter is now living "in a pre‑adoptive home with foster
parents committed to formal adoption to become his legal parents." He cannot be legally adopted, nor can his
status otherwise be finally clarified, until this litigation ends.
[13] The respondent represents
that the petition to terminate Ms. Lassiter's parental rights contained no
allegations of neglect or abuse upon which criminal charges could be based, and
hence Ms. Lassiter could not well have argued that she required counsel for
that reason. The Department of Social
Services was represented at the hearing by counsel, but no expert witnesses
testified and the case presented no specially troublesome points of law, either
procedural or substantive. While
hearsay evidence was no doubt admitted, and while Ms. Lassiter no doubt left
incomplete her defense that the Department had not adequately assisted her in
rekindling her interest in her son, the weight of the evidence that she had few
sparks of such interest was sufficiently great that the *33 presence of counsel for Ms. Lassiter could
not have made a determinative difference.
True, a lawyer might have done more with the argument that William
should live with Ms. Lassiter's mother‑‑but that argument was quite
explicitly made by both Lassiters, and the evidence that the elder Ms. Lassiter
had said she could not handle another child, that the social worker's
investigation had led to a similar conclusion, and that the grandmother had
displayed scant interest in the child once he had been removed from her
daughter's custody was, though controverted, sufficiently substantial that the
absence of counsel's guidance on this point did not render the proceedings
fundamentally unfair. [FN8]
Finally, **2163 a court deciding whether due process requires the
appointment of counsel need not ignore a parent's plain demonstration that she
is not interested in attending a hearing.
Here, the trial court had previously found that Ms. Lassiter had expressly
declined to appear at the 1975 child custody hearing, Ms. Lassiter had not even
bothered to speak to her retained lawyer after being notified of the
termination hearing, and the court specifically found that Ms. Lassiter's
failure to make an effort to contest the termination proceeding was without
cause. In view of all these
circumstances, we hold that the trial court did not err in failing to appoint
counsel for Ms. Lassiter.
FN8. Ms. Lassiter's argument here that her
mother should have been given custody of William is hardly consistent with her
argument in the collateral attack on her murder conviction that she was
innocent because her mother was guilty.
See n.1, supra.
IV
[14][15] In its Fourteenth
Amendment, our Constitution imposes on the States the standards necessary to ensure
that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards
be adopted than those minimally tolerable under the Constitution. Informed
opinion has clearly come to hold that an indigent parent is *34 entitled
to the assistance of appointed counsel not only in parental termination
proceedings, but also in dependency and neglect proceedings as well. IJA‑ABA Standards for Juvenile
Justice, Counsel for Private Parties 2.3(b) (1980); Uniform Juvenile Court Act § 26(a), 9A U.L.A. 35 (1979); National
Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 39
(1969); U.S. Dept. of HEW, Children's
Bureau, Legislative Guide for Drafting Family and Juvenile Court Acts § 25(b)
(1969); U.S. Dept. of HEW, Children's
Bureau, Legislative Guides for the Termination of Parental Rights and
Responsibilities and the Adoption of Children, Pt. II, § 8 (1961); National
Council on Crime and Delinquency, Standard Juvenile Court Act § 19 (1959). Most significantly, 33 States and the
District of Columbia provide statutorily for the appointment of counsel in
termination cases. The Court's opinion
today in no way implies that the standards increasingly urged by informed
public opinion and now widely followed by the States are other than enlightened
and wise.
For the reasons stated in this opinion, the
judgment is affirmed.
It is so ordered.
Chief Justice BURGER, concurring.
I join the Court's opinion and add only a few
words to emphasize a factor I believe is misconceived by the dissenters. The purpose of the termination proceeding
at issue here was not "punitive."
Post, at 2170. On the
contrary, its purpose was protective of the child's best interests. Given the record in this case, which
involves the parental rights of a mother under lengthy sentence for murder who
showed little interest in her son, the writ might well have been a
"candidate" for dismissal as improvidently granted. See ante,
at 2162‑2163. However, I am
content to join the narrow holding of the Court, leaving the appointment of
counsel in termination *35 proceedings to be determined by the state
courts on a case‑by‑case basis.
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 2160, and it finds no
countervailing state interest of even remotely comparable significance, see ante,
at 2159‑2160, 2161‑2162. 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 **2164Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (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.
I
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, 62 S.Ct. 1252, 86 L.Ed. 1595 (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, 83
S.Ct., at 797. The Court in Gideon
rejected the Betts *36 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, 83 S.Ct., at 794 (quoting Betts v. Brady,
316 U.S., at 471), 62 S.Ct., at 1261.
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, 83 S.Ct., at 796. Similarly, in Argersinger v. Hamlin,
407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (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. [FN1]
FN1. In Scott v. Illinois,
440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (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.
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, 93 S.Ct. 1756, 1761‑1763, 36 L.Ed.2d 656 (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, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (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, 99 S.Ct. 2493, 2505, 61 L.Ed.2d 101 (1979).
In each of these instances, the Court has
recognized that *37 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, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). **2165 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, 96 S.Ct. 893, 903, 47, L.Ed.2d 18
(1976). [FN2] As
does the majority, I *38 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.
FN2. See also Little v. Streater,
452 U.S., at 5‑6, 13‑16, 101 S.Ct., at 2205, 2209‑2210; Smith v. Organization of Foster
Families, 431 U.S. 816, 848‑849, 97 S.Ct. 2094, 53 L.Ed.2d 14
(1977); Morrissey v.
Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484
(1972); Goldberg v. Kelly, 397 U.S. 254, 262‑263,
90 S.Ct. 1011, 1017‑1018, 25 L.Ed.2d 287 (1970); Cafeteria Workers v. McElroy,
367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
A
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, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551
(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, 73 S.Ct. 840, 843, 97 L.Ed. 1221
(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, 43 S.Ct. 625, 626, 67 L.Ed. 1042
(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, 92 S.Ct., at 1212, quoting Kovacs v. Cooper,
336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (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, 97 S. Ct. 2094, 2110, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland,
431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977)
(plurality opinion); Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645
(1944); Pierce v. Society
of Sisters, 268 U.S. 510, 534‑535, 45 S.Ct. 571, 573, 69 L.Ed.
1070 (1925); Meyer v.
Nebraska, 262 U.S., at 399, 43 S.Ct., at 626. 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, *39 Wisconsin v. Yoder, 406 U.S. 205, 232‑234,
92 S.Ct. 1526, 1541‑1542, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters,
268 U.S., at 534‑535, 45 S.Ct., at 573, and in retaining the
custody and companionship of the child, Smith v. Organization of
Foster Families, 431 U.S., at 842‑847, 97 S.Ct., at 2108‑2111; Stanley v. Illinois, 405
U.S., at 651, 92 S.Ct., at 1212.
In this case, the State's aim is not simply
to influence the parent‑child relationship but to extinguish
it. A termination of parental **2166
rights is both total and irrevocable. [FN3] 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, [FN4] Congress, [FN5] and commentators. [FN6] *40 The Court candidly notes, as it
must, ante, at 2160, that termination of parental rights by the State is
a "unique kind of deprivation."
FN3. 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).
FN4. 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).
FN5. 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).
FN6. 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).
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, 90
S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970), quoting Joint Anti‑Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646,
95 L.Ed. 817 (1951) (Frankfurter, J., concurring). See Little v. Streater,
452 U.S. 1, 12, 101 S.Ct. 2202, 2208‑ 2209, 68 L.Ed.2d 627 (1981); Morrissey v. Brewer, 408
U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (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 2159, 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, 93 S.Ct., at 1761‑1763; Morrissey v. Brewer, 408
U.S., at 489, 92 S.Ct., at 2604.
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*41 confinement and of the stigma that
presumably is associated with being labeled mentally ill. Vitek v. Jones, 445 U.S. 480, 492,
494, 100 S.Ct. 1254, 1263, 1264, 63 L.Ed.2d 552 (1980). For four Members of the Court, these
"other **2167 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,
100 S.Ct., at 1265 (opinion of WHITE, J., joined by BRENNAN, MARSHALL,
and STEVENS, JJ.). [FN7] See also In re Gault,
387 U.S., at 24‑25, 87 S.Ct., at 1442.
FN7. 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, 100 S.Ct., at 1266‑1267.
Moreover, the Court's recourse to a "pre‑eminent
generalization," ante, at 2158, 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. [FN8]
Compare Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct.
1011, 25 L.Ed.2d 287 (1970), *42 with Mathews v.
Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 1
(1976), and Fuentes v. Shevin, 407 U.S. 67, 92
S.Ct. 1983, 32 L.Ed.2d 556 (1972), with Mitchell v. W. T.
Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
FN8. By emphasizing the value of physical
liberty to the exclusion of all other fundamental interests, the Court today
grants 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 2164‑2165, 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
anautomatic 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, 91 S.Ct. 1976, 29
L.Ed.2d 647 (1971); In
re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1,
87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
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
interest at stake in a parental termination proceeding is undeniable, and I
would find this first portion of the due proces 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.
B
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), [FN9] and serving
a summons on the parent, § 7A‑289.27(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, *43
hearsay is inadmissible **2168 and records must be authenticated. See, e. g. § 1A‑1, Rules
1, 43, 44, 46.
FN9. 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.
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. [FN10] 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.
FN10. 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, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Smith v. Organization of Foster
Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).
*44 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. [FN11]
FN11. Cf. Parham v. J.R.,
442 U.S., at 606‑607, 99 S.Ct., at 2506‑ 2507; Goldberg v. Kelly, 397
U.S., at 266, 90 S.Ct., at 1019.
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 *45
that substantial progress has been made in **2169 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, orto make
and follow through with constructive planning for the future of the
child." (Emphasis supplied.) Juvenile Petition ¶¶ 6, 7, App. 3.
[FN12]
FN12. 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.
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. [FN13] 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 *46 sufficient supporting nonhearsay evidence, and
conduct cross‑examination of adverse witnesses.
FN13. 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, 97 S. Ct., at 2105, n. 36;
Bellotti v. Baird, 443 U.S. 622, 655, 99 S.Ct. 3035, 3054,
61 L.Ed.2d 797 (1979) (STEVENS, J., concurring in judgment). See also Quilloin v. Walcott,
434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (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 Cty., 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).
The Court, of course, acknowledges, ante,
at 2161, 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, 87 S.Ct., at 1448, quoting Powell v. Alabama,
287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). When the parent is indigent, lacking in
education, and easily intimidated by figures of authority, [FN14]
the imbalance may well become insuperable.
FN14. 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).
The risk of error thus is severalfold. 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. [FN15] Given *47 **2170 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.
FN15. 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 2161, 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 2161, n. 5, the judges who preside over termination hearings perceive them
as less fair when the parent is without counsel.
C
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 well‑being 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 *48 separates" the parent from the
child. Stanley v. Illinois,
405 U.S., at 653, [FN16] 92 S.Ct., at 1213.
FN16. The Court apparently shares this view. See ante, at 2159‑ 2160.
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 2160. 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. [FN17] But where,
as here, the threatened loss of liberty is severe and absolute, the State's
role is so clearly adversarial and punitive, and thecost 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.
FN17. 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.
II
A
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 **2171 devised by the State fraught with
risks of error, and the countervailing *49 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 2162 (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, 90 S.Ct., at 1018. 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 even‑handed than
typical welfare entitlement decisions. 424 U.S., at 339‑345, 96
S.Ct., at 904‑907. 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 *50
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 truth‑finding process as applied to the generality of
cases, not the rare exceptions." Id.,
at 344, 96 S.Ct., at 907.
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. [FN18]
FN18. The Court's decision in Gagnon
v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (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, 93 S.Ct., at 1761‑1763. None of these elements is present
here. See also Wolff v.
McDonnell, 418 U.S. 539, 569‑570, 94 S.Ct. 2963, 2981, 41
L.Ed.2d 935 (1974).
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 **2172 Court assumes that a review of the record will
establish whether a defendant, proceeding without counsel, has suffered an fair
*51 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, 62 S.Ct., at 1263 (dissenting opinion). [FN19]
FN19. 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.
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 2162‑2163, 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*52 energy in effect evaluating the performance
of state judges. [FN20]
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, 69 S.Ct. 184, 190, 93 L.Ed. 127
(1948) (dissenting opinion). I
fear that the decision today may transform the Court into a "super family
court."
FN20. See, e. g., Quicksall v.
Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188 (1950); Uveges v. Pennsylvania,
335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948); Bute v. Illinois, 333
U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948); Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240,
92 L.Ed. 170 (1947); Hawk
v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Tomkins v. Missouri, 323
U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407 (1945). See generally W. Beaney, The Right to Counsel in American Courts
160‑198 (1955).
B
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 proceedings, 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 2157,
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, **2173 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 *53
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. I to Reply to Brief in
Opposition 4, nor was she informed that she had a right to counsel. [FN21] Under these circumstances, it scarcely would be appropriate, or
fair, to find that petitioner had knowingly and intelligently waived a right to
counsel.
FN21. 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. 10‑11, 16.
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. 10‑13.
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.
*54 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. [FN22] Petitioner then *55 took the stand, and
testified that she wanted William to live with his grandmother **2174
and his siblings. The judge questioned
her for a brief period, and expressed open disbelief at one of her answers. [FN23] 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. [FN24]
Petitioner was not told that she could question her mother, and did not
do so. [FN25] The County
Attorney made a closing argument, id., at 58‑60, *56 and
the judge then asked petitioner if she had any final remarks. She responded: "Yes. I don't think
it's right." Id., at 61.
FN22. 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.
"[PETITIONER]:
Okay.
"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?
"[PETITIONER]:
Yes.
"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?
"[PETITIONER]:
Yes.
"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."
FN23. 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.
FN24. 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."
FN25. 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]: ...."
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, 97 S.Ct., at 1938 (plurality
opinion); id., at
508‑510, 97 S.Ct., at 1940‑1941 (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).
*57 III
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 **2175 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. [FN26] 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, 93 S.Ct., at 1764; Uveges v. Pennsylvania,
335 U.S., at 441‑442, 69 S.Ct., at 185‑186; Bute v. Illinois, 333
U.S. 640, 677, 68 S.Ct. 763, 782, 92 L.Ed. 986 (1948). See also Vitek v. Jones,
445 U.S., at 496‑497, 100 S.Ct., at 1265 (plurality opinion); id.,
at 498, 100 S.Ct., at 1266 (opinion of POWELL, J.). I am unable to ignore that factor; instead, I believe that the record, and the
norms of *58 fairness
acknowledged by the majority, compel a holding according counsel to petitioner
and persons similarly situated.
FN26. Unfortunately, the Court does not confine
itself to the issue at hand. By going
outside the official record of this case, ante, at 2156, 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.
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, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627, 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," 452
U.S., at 13, 14, and 16, 101 S.Ct., at 2209 and 2210.
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, 452 U.S., at 10, 101 S.Ct., at 2207. 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, 78 S.Ct.
590, 598, 2 L.Ed.2d 596 (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, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956) (opinion concurring in
judgment). If the Court in Boddie
v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (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 *59
fears. On the contrary, we cannot **2176
constitutionally afford the closure that the result in this sad case imposes
upon us all.
I respectfully dissent.
Justice STEVENS, dissenting.
A woman's misconduct may cause the State to
take formal steps to deprive her of her liberty. The State may incarcerate her for a fixed term and also may
permanently deprive her of her freedom to associate with her child. The former is a pure deprivation of
liberty; the latter is a deprivation of
both liberty and property, because statutory rights of inheritance as well as
the natural relationship may be destroyed.
Although both deprivations are serious, often the deprivation of parental
rights will be the more grievous of the two.
The plain language of the Fourteenth Amendment commands that both
deprivations must be accompanied by due process of law. [FN*]
FN* The Fourteenth Amendment provides in
part:
"No State shall ... deprive any person of life,
liberty, or property, without due process of law ...."
Without so stating explicitly, the Court
appears to treat this case as though it merely involved the deprivation of an
interest in property that is less worthy of protection than a person's liberty. The analysis employed in Mathews
v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, in
which the Court balanced the costs and benefits of different procedural
mechanisms for allocating a finite quantity of material resources among
competing claimants, is an appropriate method of determining what process is
due in property cases. Meeting the
Court on its own terms, Justice BLACKMUN demonstrates that the Mathews v.
Eldridge analysis requires the appointment of counsel in this type of
case. I agree with his conclusion, but
I would take one further step.
In my opinion the reasons supporting the
conclusion that the Due Process Clause of the Fourteenth Amendment entitles *60
the defendant in a criminal case to representation by counsel apply with equal
force to a case of this kind. The
issue is one of fundamental fairness, not of weighing the pecuniary costs
against the societal benefits.
Accordingly, even if the costs to the State were not relatively
insignificant but rather were just as great as the costs of providing
prosecutors, judges, and defense counsel to ensure the fairness of criminal
proceedings, I would reach the same result in this category of cases. For the value of protecting our liberty
from deprivation by the State without due process of law is priceless.
END OF
DOCUMENT
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