*1 In Re: of R. I. Before C. J., 1973.
Arguеd September Jones, Man- Pomeroy, Nix and Roberts, O’Brien, Eagen, DERINO, JJ. Kants, Mm Levine and Kantz, with
S. Sanford appellants. Levine, him K. Sherman Fox, Jr.,
Kenneth E. with appellees. 1973: December 4, Mr. Justice O’Brien, February appellees,1 re- *2 filed a of On twо 24, 1972, adopt petition port for involun- a of intent to R. I. and par- rights tary the natural termination Orphans’ of the in the Court Division ents County. 9, On March Common Pleas petition after which was held, 1972, par- granted petition the natural but allowed сourt unrepresented by appeared time had ent who legal proposed decree.2 to counsel to contest secure proceeded parent to The natural obtained counsel listed The matter was attack the termination decree. February argument, the court below and on 8, 1973, appellant’s exceptions final de- and issued a dismissed per- terminating parental rights appellant’s cree appeal mitting appellees adopt fol- the child. This to lowed. allegations
Appellant Al- of error. raises several findings allegations though that the of fact her court’s support terminating her a decree were insufficient allegаtion parental rights that merit,3 1 County appellee is the Lawrence Child Welfare Ser The other custody by May placed of court in in its order vices. R. I. was placed I. in the home of Mr. and Mrs. C. as R. 1967. Child Welfare April 24, where he remained until Mr. and child foster Custody adopt of R. I. him. instituted these Mrs. C. proceeding. in this an issue is not 2 although proper father, he received notice The natural joined appear has not at proceedings, did appeal. 3 arguеs Appellant court could not base its decision on that prior parents the effective which occurred natural acts finding court’s that the con Act and date parents “probably” would not be natural created ditiоns language statute uses the “can- since insufficient remedied
31
was without
she
because
due
she was denied
representation
which
at
en-
that she was
not informed
terminated and she was
could
if she
to free counsel
titled
at
рay
matter.
a different
one,
afford to
is
long
an individual
It
has
established
may
any proceeding
lead
at
entitled to counsel
rights.”
deprivation
v.
Coleman
of “substantial
(1970),
1
Gault,
U.S.
1
Re:
387
Alabama, 399 U.S.
(1967),
(1967)
218
Wade, 388 U.S.
States v.
, United
(1966),
rel.
ex
436
Com.
Arizona,
Mirandа v.
384 U.S.
(1973).
A.
Rambeau
Collins,
236 A. 2d
Johnson,
Commonwealth v.
nature,
cases are criminal
While the above-cited
logic
equally applicable
in
to case
them
behind
volving
indigent parent
of her
an
faced
the loss
Avith
Appeals
of Nеw
child.
In the words of the Court
*3
in the Mat
which reached
conclusions
York,
the same
(1972)
par-
“A
B.,
ter
285 N.E.
:
of
liberty
for
rent’s
for the
of the
as well as
child,
concern
fundamental
in
his care and
immlves too
an
control,
relinquished
right [citing
the
cases]
terest and
be
opportunity for
State
a
as
Avithout
Avith
signed
parent
if
the means
retain
lacks
lawyer.
deny legal
To
under
a
assistance
such circum
jurisdictions
of other
stances would—as
courts
already
[citing
of
cases]—constitute
held
violation
process rights
light
express
his due
in
and,
statu
tory provision
legal representation
for
for those Avho
protection
equal
of
can
a denial of
afford
the kvws
it,
contention,
Creigh
or will
be remedied.” As fоr
first
see
not
not
(1957)
Pittsburgh,
as well. the Federal As District Court in the wrote similar Cleaver case very v. Wilcox, decided [Cleaver March 22, 1972 (40 ‘whether the U.S.L.W. 2658)], pro be or labelled “civil” funda ceeding “criminal,” mentally denial of due unfair, the state to seek removal the child from an indigеnt parent according to the parent assistance of court-appointed counsel. compensated . . . Since the state . . . there is a adversary gross inherent imbalance experience between expertise parties parents coun represented by The in sel. interest in parent’s liberty child, in his care and control, his has as long recognized a fundamental interest. . . . Such an interest may be curtailed the state without a meaningful oppor to be in these in tunity heard, circumstances ” cludes the assistance counsel.’ its By very nature, the instant proceedings are very different from those involved Watson Appeal, 450 301 A. 2d In Watson we held that a natural Apрeal, mother who institutes proceedings terminate her parental rights voluntarily later cannot complain she should have had coun- sel for her at the appointed which her rights voluntarily terminated. Watson there no Apрeal, adversary. The natural parent voluntarily child giving up and had been fully informed of the consequences that decision.
In the instant on the other case, hand, appellees are to terminate attempting appellant’s parental against opposition. Consequently appellant’s *4 adversaries have the burden of proving they to entitled terminate those rights. such a it would be unfair proceeding, grossly to force appellant the to defend against appellees’ case without the assist- trained in someone, ance who law, could test the and the tech- the rules evidence case appellees’ of cross-examination. niques hаd counsel. How-
Appellees argue appellant was not provided record indicates that she ever, when the conclusion counsel until with her terminating entered a decree the court had already her did the сourt tell Not until then parental rights. contact she should since she did have that, counsel, Association’s Commit- the Law attorney charge to the and the indigent, tee on services legal providing to attack the decree dаys court would her give twenty The crucial proceed- terminating rights. presented was the at which evidence was ing which led the court to terminate appellant’s parental rights.4 reached that someone in
Once the conclusion is
ap-
has the
counsel
to
pellant’s
right
assigned
position
appellees’ petition,
at
represent
is entitled to be advised
follows that she
necessarily
York
ex-
of that
As the New
right.
Appeals
Matter
at 290: “If
B., suрra,
plained
before
the rule
the court
otherwise,
party
of his
there
assigned
apprised
be no
either
that he
he
could
assurance
knew
had
he
such a
or that
had waived it.”
in the case of Com. ex rel.
As we said
Mullins v. Ma-
fendant Ms of, of counsel at the time of or assistance trial plea alia, argues, Appellant inter that most of the evidence at this hearsay should not admitted. While record leads us to the conclusion that our examination by appellant adopted was, therefore, properly ad evidence missible, would have conceivаble come out it is present. appellant differently had counsel had *5 such, expressly upon declines the burden is assistance, any subsequent him in attack on the conviction to es- preponderance tablish of the evidence that his acquiescence sufficiently understanding was not in- telligent [Citing to constitute an effective waiver. apply, For cases.] this rule the record must however, indigent show the case of an defendant that he is fully informed of or understands that the court will provide charge him with counsel if he so de- appears sires. Unless this the burden is record, upon the Commonwealth to establish the defendant fully alleged aware his at the time the waiver occurrеd.”
Applying reasoning the same to the case at since bar, clearly appellant the record does not in- show that formed of her to free counsel before the appellees position ap- and if the wish to take the pellant’s appearance parental without counsel at the hearing termination constituted waiver appellees prove the burden counsel, will be appellant fully that the aware of her to free hearing. appellees counsel at the If the cannot meet appellant then burden, entitled to a new hearing petition parental rights to terminate her legal representa- at which she will be аfforded tion.
Decree vacated and case remanded to the Court Orphans’ Common Pleas, Division, County, for further consistent with this opinion. Concurring Pomeroy Mr. Justice : I concur in t.binlr
While
the decision of the
I
Court,
appropriate
emphasize
that this is the first time
indigent parent
we have held that an
respond-
who
ais
in a proceeding
ent
involuntary
of his
termination
en-
in a
constitutionally
child is
or her he
counsel.1
throughout by
titled to
represented
that the lаw we now announce was
Notwithstanding
and that
below,
not the
at the time
no
the trial
did ad-
judge
there was
request
here)
vise the respondent
(appellant
*6
if
to enable her to ob-
continued,
would be
she wished,
tain counsel. The
stаted that
reason of
respondent
by
at a
she could not
employment
appear
subsequent
time
the case were continued. After the
and a decree nisi
the re-
concluded, however,
entered,
did follow the
of the court and
spondent
suggestion
ob-
tained counsel
Aid Committee of the
through
Legal
Bar Association.
County
Counsel then filed
numerous
to the decree nisi which
exceptions2
were dis-
of in the court’s
posed
thorough opinion accompanying
I
the final decree.
agree
While
unless
that,
knowingly
to counsel
embrace
waived,
must
the crucial
of a
hearing stage
the trial
proceeding,
appears
court did
and
light
law then pre-
evidence
fairness to the
vailing
scrupulous
respondent.
I
point out,
finally,
counsel claim
was not
to the court below.
presented
It is
raised
1
warranted,
think,
only by analogy
I
This decision is
to counsel
accorded to a criminal de
by
B.,
thе rationale of Matter
fendant
and
30 N.Y. 2d
(1972)
by
Court,
by
352,
288
on
285 N.E. 2d
relied
but also
such
Connecticut,
(1971)
Boddie v.
401 U.S.
28 L. Ed.
cases as
2d 113
initiating
(filing
required
proceeding prevented
fee
divorce
courts,
process),
Stanley
violation of due
accеss to
and
v.
(1972)
(because
Illinois,
645,
86
coun
new
(appellate)
on this appeal
first
time
on the ground
justified only
This is
sel for appellant.
See
was involved.
fundamental
that a basic
A.
Pa.
274
18, 25,
Jennings,
v.
Commonwealth
Mr. Justice Manderino opinion. *7 ex rel. Wright, Appellant, wealth
Common Hendrick.