In the Interest of Cooper
631 P.2d 632
Kan.
1981
Check Treatment

*1 51,276 No.

In the A Age Eighteen. Interest of Under Cooper, Juvenile Julie 632)

(631 P.2d Opinion July 17, filed 1981. Paul, Society Inc., cause, Legal Topeka, argued Larry Lowell Aid Rute, firm, appellant R. was with of the same him on brief for the mother. cause, Carpenter, attorney, argued Sue district assistant and Robert T. Stephan, litem, Topeka, attorney general, guardian Skidgel, and David ad were appellee. with her for the on the brief the court was delivered This matter to this court on a Petition for comes Fromme, J.: Review the at 5 Kan. decision Court found pro- It 2d 621 P.2d 437 stems from year, ceedings petition alleging Cooper, age on a one Julie of a child is found was a child. definition Supp. 38-802(g): in K.S.A. 1980 *2 (18) eighteen years age: ‘Deprived “(g) less than means child’ control, subsistence, as “(1) proper education care or Who is without physical,

required by for such mental care or child’s law other control or solely health, deprivation to the lack of financial and the is not or emotional custodian; guardian parents, other means of such or child’s mentally, emotionally “(3) physically, or or abused who abandoned has been custodian;” parent, guardian sexually neglected his abused or her other question. court Sufficiency evidence is not in The district of the child, attorney required the as K.S.A. appointing after an 38-817, hearing. Supp. proceeded with the mother, Marilyn Dickey, present was and was advised The proceeded hearing with the her retain counsel. She counsel, counsel, having and requesting without without without The as to whether she could counsel. determination made afford present attorney throughout the was the appointed for part he and mother hearing the child’s took and both Marilyn questioned the State’s proceedings and witnesses. Dickey length position. at the State’s At the against testified care, hearing legal custody conclusion of the and control child, Cooper, Department were continued Julie Social Rehabilitation Services until further order of and granted parents. district were The court. Visitation psychological psychiatric undergo were ordered to They testing carry parents. the duties to their abilities out Development program were attend the Child Center ordered to Topeka Hospital, with the child. along mother, appeal Appeals judgment On the Court of Marilyn points. point The Dickey, presented two second con- sufficiency findings cerned the of the court’s and conclu- district Appeals findings The examined the and conclu- sions. Court of sufficiency. point approved sions and their was not raised on that matter Petition for Review we consider settled. Appeals point The first raised the Court of concerned mother, attorney appoint failure an of the trial court every Marilyn Dickey. The Court of concluded only “deprived hearing are not child” entitled to present during indigency must be deter- but they expense are entitled to counsel at the mined if requirement is no county. The court held hearing, when the is taken “deprived child” different than it in severance temporarily, from severed. permanently when to the trial court with directions

The case was remanded Marilyn Dickey indigent at time whether was determine Marilyn Dickey If to be “deprived child” was found hearing, judgment was ordered reversed and indigent at the attorney at the the trial was directed to for her county’s expense, granted a new trial was her. to be attorney behalf of the State filed a Petition for

The district Review, question impression pointing was one of first out that far- in Kansas. The contends the decision has district question reaching juvenile proceedings effects in all and that the granted deserves a definitive treatment. We review. more statutory At the it is all references to the outset noted policy Supplement. code will be in the K.S.A. 1980 found *3 juvenile at the code is stated 38-801 as follows: liberally construed, coming the that within “This act shall be to end each child care, provisions custody, discipline, guidance, its shall receive such control home, preferably in the child’s own as will best serve the child’s welfare and the any order, judgment the In case shall best interests of state. no or decree of the court, act, any proceedings provisions district under the of this be deemed or child; orders, import part any proceedings, held to a criminal act on the of but all judgments taken and and decrees shall be deemed to been done parental power exercise of the the state.” of permanent deprivation parent?1 When there is a severance of statute, 38-820, law, Brehm, and the case In re both (1979), Kan. 2d 594 P.2d 269 that the natural parent represented by hearing. If the counsel at the counsel, employ parent financially to the court must is unable parent expense county. assign counsel to the question confronting now this court is whether right “deprived hearings to child” appropriate to extend this custody giving there loss of with a view to care, discipline such as will serve the child’s guidance and best parental power the State. welfare in the exercise of regard permanent rights, With to pertinent part statute in states: pursuant any proceedings court in which code in district “In child, permanent parent may such . . . parent. shall . . . Such summons shall issue to such summons requiring place and a statement . the time and state . . why appear

person there cause he or she show named in the summons permanent of- should not be (name child).” Emphasis supplied. 38-818. provides: 38-820 depriving parent parental rights permanently of his or her “No order or decree repre- parent be made unless . . . such

in a child . . . shall present in the district court or has been served sented counsel and attorney any judge assign court shall such summons. The of the district may parent employ award a reasonable fee to said who is unable to counsel and county.” Emphasis supplied. paid general fund of the counsel to be from the statutory provisions perma- relating contrast above rights, governs we find 38-817 which nent severance of deprived. procedure petition when a is filed to declare that summons be issued to the child and statute directs place parent give the time and of such notice of advising . . shall include a statement such “Such notice and summons . choosing child and the ... to retain counsel their own upon notify but said court of the name and to retain counsel failure . will such address of such counsel . . the court counsel forthwith 38-817(o). parent.” child and the cost of be assessed to Emphasis supplied. appointing Nothing is said in the latter about statute, However, parents. legislature the fact the failed provide appointment “deprived of counsel for the child” a need for such an hearing does not foreclose process requirements under the due of the Constitutions. We will later, question return to the due but first we will consider expressed by some the district fears about Appeals opinion. Court of

The argues district first that the decision is so broad in all indigent juvenile temporary the child involving cases removal of from parent, adjudications delinquent, that the including child is mis- creant, wayward, parent voluntarily requests or and when the requirement argues State’s assistance. Petitioner further that the indigent parents usurps the State’s of parens patriae powers which are in the interests of the child. court-ap- decision argument extends the pointed juvenile proceedings in all counsel for custody potential temporary change merit involving of is without

61 First, contrary logic. and the Court of made no juvenile proceedings, reference to other and no reason there is assume that it intended to include them its determination. This court does not.

Second, dispositions the statutes treat the custody change separately custody cases from change child delinquent, miscreant, children adjudged wayward. Deprived or children Temporary custody are dealt with in 38-824. change is (b), treated permanent parental under subsection (c). is Change custody treated under subsection delinquent, miscreant, adjudged children wayward or is treated under 38-826.

Third, miscreant, delinquent, child who has been declared or wayward responsible precipitating for the misconduct (see change [c], Supp. 38-802[b], [d]) K.S.A. 1980 “deprived” (formerly depen but classification of a child as neglected) dent and connotes misconduct or breach of Bachelor, In re duty. 883, In re 879, (1973); 211 Kan. 508 P.2d 862 Vallimont, 334, 339, (1958). 182 Kan. 321 P.2d 190

Fourth, the interests affected differ under the various classifi- cases, possesses cations. In parens the State its patriae interest protecting providing its minor children and them with proper care. State ex rel. O’Sullivan v. Heart Minis- tries, Inc., 244, 253, (1980). 227 1102 Kan. 607 P.2d family interest is in integrity the maintenance of the of the unit (Beebe Chavez, 597, v. [1979]), 226 Kan. 602 P.2d 1279 (In Brehm, re preservation parent-child relationship of the 3 327-28). Kan. proceedings, 2d at In possibilities permanent subjected deprivation of the of the child and destruction family unit.

Conversely, delinquent, miscreant, wayward involving cases possibility children do not involve the of severance of cases, rights. protecting In the latter the State has its citizenry juvenile from misconduct addition to its interest State, ex providing proper guidance. the child care and rel., Owens, v. See also 212, 220, Kan. 416 P.2d 259 B., (Fla. Interest D. 1980), 385 So.2d proceed recognized dependency delinquency ings separate purposes of Florida. distinct and

62 preserve parental to counsel right danger is no

There proceed- parents in divorce custody will extended custody attorney. by In child district ings, suggested as is equal parents, each has claim divorcing contests between 597, Allison, 593, 795 Kan. P.2d v. 188 363 custody. Allison 495, (1951). 497, 233 P.2d 711 (1961); Moyer Moyer, v. 171 Kan. cases distinguishable from child Such are contests custody, contrary parents’ natural the State seeks 229, 231, custody. Kailer, 255 In re 123 Kan. presumptive right of are proceedings which (1927). child Pac. Unlike 41 State, private contests involve by the instituted action, is involved in divorce litigants. Since state action no requirements is not procedural compliance with 236, (Me. 1980). suspect. Meyer Meyer, 414 A.2d 238 v. that the extension of the argument Petitioner’s temporary depri- involving only custody usurps parens patriae State’s vation of protec- powers also merit. Petitioner contends that the without parents’ obligation the State’s tion contradicts parens exercise of its the child’s best interests consider patriae powers. recognized protecting long

This court State’s proper rel. assuring they its receive care. State ex children Inc., Ministries, 253; Murphy 227 v. v. Heart Kan. at O’Sullivan 118, 122, (1966). P.2d State’s Murphy, 196 Kan. 410 252 In the parens patriae powers, are exercise of its child’s best interests Nelson, 271, In always paramount consideration. re 216 Kan. Wheeler, 703, 276, (1975); 701, P.2d 48 3 Kan. 531 re 2d 15, (1979). parents’ rights 601 227 P.2d rev. denied Kan. 927 however, and the child’s interests disregarded, cannot be best conjunction In re rights. considered in 366, Armentrout, 370, (1971); 207 Kan. 485 P.2d 183 Lennon v. 691, State, 685, parents’ rights Kan. 396 P.2d 290 193 patriae parens powers subordinate State’s must yield v. when adverse to best interests of child. State State, Garber, (1966); 197 Kan. 419 P.2d 896 v. Lennon presumed 193 Kan. at 691. It is that the best interests the child are served the retention of the child’s in the natural Armentrout, parents. 366. recognition In re Kan. Judicial legal representation parent’s child-deprivation interests *6 not, therefore, proceeding usurp parens patriae does the State’s powers. point

The next raised in the Petition for Review that Appeals erroneously Court opinion assump- based its on the proceeding tion that a adjudge deprived “usually to a child prelude ato termination proceeding.” may This statement However, been Appeals notes, too broad. as the Court of 38-824, adjudication deprived that a child is is a prerequisite a proceeding parental to sever or terminate rights. parental This court has found that justify misconduct sufficient to a finding deprived may that a child is support also be sufficient to a finding parent is unfit in a severance re proceeding. Bachelor, Armentrout, In re 879; 211 Kan. 207 Kan. 366. Under scheme, statutory our there are no assurances that a determination that a child is will not later support be used to a decree permanently sever if rights, parents were afforded process due rights Indeed, at the initial hearing. present in the case, journal entry an respondent contains admonition to that such proceedings would be if initiated did im- mother not prove her conduct. The determination that the child is and the underlying that determination under certain may circumstances against not be admissible proceeding, severance if the were not afforded due process representation rights. parents’ a termi- proceeding satisfy process nation will not alone equal due protection requirements if the trial court relies on evidence in- troduced at a proceeding at which the had A proceeding not been afforded counsel. to determine concluded, deprived, whether a child is as the Court of stage” be a “critical in the ultimate determination parents’ rights proceeding. potential impact in a severance parents’ “deprived hearing” on the consid- should be assessing parents’ ered in the extent nature court process proceeding, interest and the extent the due requirements protect the interest. finally Appeals erred in argues

Petitioner that the Court of parents’ and uninter- concluding that interest continued require rupted custody great always the child is so purpose proceedings which have their assistance of counsel temporary Acknowledg- removal of the child from the home. child, control ing the deprivation temporary does that petitioner argues the indi- represent appointment court parent. gent requires previously pointed out 38-820

As their an action for represented by counsel Brehm, process 2d Kan. 325. Due also rights. In re appeal in an from severance requires the assistance attorney; where the is unable afford proceeding appointed. cases must be such one requires universally held that It is constitutional The same proceedings. severance the assistance of counsel removal children from not true of juris- family care, Virtually all treatment and assistance. *7 parents’ including recognize Kansas the of dictions liberty by protected their children are interests and control of the v. Due Process Clause. Fourteenth Amendment Danforth (Me. 1973), & Department Welfare, 303 A.2d 794 Health of illustrates the rationale: by precise question squarely the . . never “While . has been decided States, by Supreme ample suggestion the United has been that Court of there right raise one’s children is of dimension. Court to constitutional McReynolds, century ago speaking Mr. “Over half a for the court in Justice 390, 625, Meyer Nebraska, (1922), v. U.S. 67 262 43 S.Ct. L.Ed. 1042 said: “ problem ‘The for our determination is whether statute as construed and applied unreasonably infringes liberty guaranteed plaintiff by in error any life, deprive person . the Fourteenth Amendment. “No State . . of shall process liberty, property without due of law.” “ attempted liberty ‘While has not this Court to define exactness the thus guaranteed, the term has received much consideration and some of included doubt, things definitely merely have been stated. Without denotes not freedom bodily contract, engage also the individual from restraint but to to any occupations life, acquire knowledge, marry, of of common to useful to up children, worship bring according and establish home to God to the dictates conscience, generally enjoy privileges long recognized his own and those to at orderly pursuit happiness common law as essential to the free men.’ 399, (Emphasis supplied) 262 U.S. at 43 S.Ct. 626. 510, Society Sisters, 571, “Later in v. U.S. 45 Pierce 268 S.Ct. 69 L.Ed. 1070 (1924), constitutionally protected right the Court restated its view that is a there bring up their children when it said: “ theory liberty upon governments ‘The fundamental which all in the Union repose any power general excludes of the state standardize its children 535, forcing accept public only.’ them to instruction from teachers 268 U.S. at 45 at 573.” S.Ct. 303 A.2d at 796. 65 The extent of the in the continued and unin- terrupted custody child, process requirements and the due protect interest, vary jurisdiction from juris- In Cager, re (1967), diction. 251 Md. 248 A.2d 384 example, process the court found no due denying violation from indigent mother counsel where the child was represented by litem, guardian given ad and mother was opportunity notice and the at the dependency heard neglect appears proceedings. This case to stand alone for we find no other similar holdings. jurisdictions required

Several process as minimum requirements of counsel for indigent every dependency neglect when proceeding temporarily parent removed from home. was faced with potential society possibility loss of child’s well as B., in Matter Ella charges criminal 30 N.Y.2d Noting “gross N.Y.S.2d expertise imbalance” of unrepresented parent, between state and the court held that denial an indigent violated both due equal protection. procedural defect was not cured in that case though represented subsequent even was at a proceeding, termination previous because evidence from the de- pendency neglect proceeding was considered and relied upon. recently held the

However, Supreme Court the United States appoint- the United States does Constitution every status ment of *8 Social Ser- Department v. Lassiter proceeding. termination of 640, vices, S.Ct. 2153 101 452 U.S. 68 L.Ed.2d Department v. State In Health Welfare, and 303 Danforth of A.2d the court held neglect proceedings to be akin to crimi- nal proceedings upon the impact parent, noting the that due process requires procedural greater protection as the action more nearly approximates prosecution. a criminal The Danforth was also concerned about the of expertise, imbalance and re- quired the indigent parents when the being temporarily was removed the from home. jurisdictions

Other a middle require appoint- follow road and ment indigent parents dependency of counsel for and neglect

66 parental possibility that there a reasonable where proceedings separation prolonged will be a there rights will be terminated Supp. 442 F. 258 Page, In v. child. Davis between rationale used 1977), used the same (S.D. the court Fla. quasi-criminal nature of the expressing for the Danforth, concern superiority investigative State’s proceeding, in 618 approved the rationale Fifth Circuit The trial abilities. Accord, Supp. 1980). Guy, v. 476 F. 771 (5th Brown Cir. F.2d 374 later 1979). However, of Florida (D. Supreme Court Nev. required in not be Davis, that counsel would and held modified temporary and taking of child was where the situations B.,D. 385 2d 83. The period In Interest So. separation. short case-by-case analysis discussed adopt Florida court chose 1974). Wilcox, (9th F.2d 940 Cir. v. Cleaver Cleaver, complexity neglect court noted the of some ability parents’ to un- proceedings, expressing concern potential interests in- weighed derstand. Cleaver court custody may volved, parent’s right outweigh and held that providing to all the State’s financial costs may Though proceedings in such faced with parents. rights possibility and with the possible severance of prosecution, unnecessary the court felt criminal requirement. appointed-counsel application of the blanket applied case-by-case on a guidelines court set out some M.D.Y.R., 521, 582 also 177 Mont. P.2d basis. See In Matter of (1978), no in which that court found violation opposed tempo- facts mother had revealed the rary custody. change of primarily by

Courts which travel this middle road troubled (1) upon adjudication possibility which the perma eventually support the child as will be used to custody; (2) potential rights nent problem liability areas resulting criminal therefrom. These same law. exist under Kansas Once found to be Supp. 38-802(g)(1), in K.S.A. 1980 the State institute defined Supp. to terminate under K.S.A. 1980 38-824(c). possibility prosecu There also criminal exists determination, resulting tion or evidence from adduced See, Supp. (nonsupport proceeding. e.g., K.S.A. 1980 21-3605 *9 child); (abandonment child); K.S.A. 21-3604 of K.S.A. 21-3608 child); (abuse child). a (endangering and K.S.A. 21-3609 interpreting process Constitution, In the due clause of the Supreme United States Court established that certain inter- ests meeting procedural cannot be foreclosed without certain safeguards. A the safeguards necessary determination of to afford process due must light constitutional be evaluated in the interests affected. Mathews v. proceeding nature of the 319, 334-35, Eldridge, 424 U.S. 47 L.Ed.2d 96 S.Ct. 893 (1976). procedural

The extent to which must be afforded person person influenced the extent to which the affected may grievous depends upon be “condemned to suffer loss” and person’s whether in avoiding outweighs interest that loss Goldberg v. governmental summary adjudication. Kelly, 254, 262-63,25 397 U.S. L.Ed.2d 90 S.Ct. 1011 2,206 deprived Kansas,

In 1980 there were hearings child many purpose of which had their change for provide special for care and treatment child and training parent parents develop proper or skills to enable the to care the child in the In for home. these cases process requirement we see no due necessitating the expense for county. required by for the child. In appointed Counsel statute to be may some cases the interests of and the child protected by appointed child.

At every proceeding the outset of child the court opening should the State make an outlining statement expects support the evidence which the State to introduce in petition, making suggestions as to recommended solu- problems tions for which those the State believes any in the best interests the child. In case where the conditions prior appear hearing outlined to be serious and have appointed remained so for a considerable time counsel should be parents. attorney the indigent parent In such cases if no parents any evidence introduced at the de- prived well be inadmissible later sever- represent parents, ance Without process rights evidence would be taken in violation of the due parents. hearings some involved *10 after appointed counsel rights to voluntarily waive their waiver should be entered rights. Such fully of their being advised case, and, violation of in such of the on record successfully when the be raised later process rights could due support hearing is used to deprived child at the rights. parental petition to sever determining be considered factors to

Some additional represent attorney appointed should be not an whether or include: hearing might well child indigent parents in face, (2) the separation parents may (1) anticipated length of assistance, (3) the parental consent to presence or absence of facts, (4) ability disputed presence or absence of question the wit- and to State’s cope with relevant documents at the nesses attorney, request an a record any case when bearing financial on in- their circumstances

should be made of it request refuse the for counsel digency, judge and if the should in the record important grounds for the refusal be stated so judicial review of the refusal can be had. meaningful upon Marilyn present grievous loss was visited In the case no whether she was Dickey. Although the court did not ascertain appointed her at State indigent desired to that she had a to counsel and she expense, she was advised attorney appointed child and declined counsel. An was for the questioned and the mother the witnesses. both anticipated length separation long faced was not to be depended part cooperation large psychiatric attending parent training receiving courses and expressed jour- psychological testing. As examination entry goal nal was to reunite the child with her mother and stepfather. appears It consented the course of hearing treatment and education outlined the court. At however, dispute; appeared facts were somewhat the mother ability cope have the to understand and with relevant documents quite logical questioning and coherent the wit- she was nesses, permanent testifying. and in No severance of attempted and the rights has been been parents. restored to the requires process due the State to coun-

Constitutional sel for an Supp. parent,

K.S.A. 38-817 present whenever unable his properly, or her case faces a possibility substantial of loss of permanent rights pro- or of Wilcox, separation from the child. Cleaver v. longed 499 F.2d 940.

In deprived child hearings district court safeguard should of an indigent and have counsel expense county when the circumstances appear and, request refused, should a for counsel be grounds for such refusal shall be stated in the so record that a judicial meaningful can review be had.

Under present facts and circumstances case the present properly, was able her case had the assistance of an attorney appointed child, for the and there was no substantial possibility permanent prolonged severance separation parent. child from the The due Marilyn Dickey adequately protected. were The decision of the Court of Appeals is and the judgment reversed of the district court is affirmed. J., dissenting: The Court of

McFarland, decision in (5 584) this case Kan. 2d unequivocally states: proceedings brought adjudication deprived, “Where are for an that a is child process requires parents, indigent, if must have counsel appointed represent deprived Syl. hearing.” them at a child 4.¶ majority opinion court, ostensibly this reversing said opinion, holds: process requires appoint “Constitutional due counsel for an in- digent parent Supp. child K.S.A. 1980 38-817 parent, present properly, whenever the unable to his or her case faces a substantial permanent

possibility parental rights of loss of or of separation prolonged Syl. from the 4. child.” ¶ syllabus appears This pro- to dilute or condition absolute court, appellate nouncement of the intermediate but knowledge proceedings reading and careful practical reveals judges both decisions have the same result — presiding proceedings compelled over will feel parents Deprived proceedings. all such proceedings Occasionally, are shot” seldom “one actions. involving badly injured case there is a such as factual situation intentionally they parents testify saw the witnesses to child and Generally, exception. severance injure this is the child —but deprived child cases. with nonseverance are cumulative cases (1) following: is the An SRS social A more common scenario mentally; advancing physically or not a child who is worker sees child, how to care for (2) social worker counsels (3) the improve; social and the child does passes time but placed in the child is matter over to court and worker turns the ultimately (4) investigates; the court while the court foster care up set program and a is finds the child treatment, etc., parents to for the counseling, psychiatric order child; (5) improves now the child in foster care —is again have the trained; (6) is returned to and toilet the child walking, speaking, progress (7) notices the child’s parents; the social worker is has set in —after a while the child stopped disintegration trained; (8) put speaking, walking, or the child is longer no toilet dramatically improves, it care where back foster counseled; (9) again are the child returned (10) put in foster care where it disintegrates; the child back rapidly improves; (11) severance commenced parents; trial, (12) and an past necessity, virtually all the consists of the child; (13) granted and their effect on the severance is failures previously prog- future on the established facts and the realistic *12 nosis. majority opinion herein states:

The scheme, statutory our there no assurances that a determination that a “Under support permanently deprived not used to a sever child is will later be decree to process rights rights, the if the were afforded due at initial Indeed, case, present journal entry the an admonition in contains to respondent proceedings if not that such would be initiated the mother did improve deprived her conduct. The determination that child is and the underlying that determination certain circumstances not be proceeding, against admissible in severance if the were not rights. representation by process parents’ at a afforded due The counsel termina- satisfy process equal protection require- proceeding not tion will alone due deprived proceeding if trial relies on evidence introduced at a ments court proceeding A not counsel. to which had been afforded concluded, may deprived, determine whether a child is as the Court of stage’ parents’ rights a ‘critical in the ultimate determination of severance potential ‘deprived proceeding. impact hearing’ parents’ rights The by assessing and nature of the should be considered court extent

71 requirements proceeding, process and the extent of the due protect the interest.” majority message send What does Appoint deprived all judges? counsel child cases in order to be your will later failure sure children not suffer from to do so. requires Supp. appointment K.S.A. 1980 of counsel 38-820 statutory if deprived sought. child cases severance is No requirement appointment exists for the of counsel sought. child cases where severance Unless some constitu- provision requires appointment tional of counsel such cases, any change policy is a matter of determined to be majority statutory legislature. The based its modifications of the Constitution, process law on the due clause of the United States Appeals. as did the Court of interpretation placed

The on the and laws of the Constitution Supreme United States the decisions of the Court of the upon must controlling United States is state courts and be fol- State, Murray v. 26, 1, Syl. 226 Kan. 596 P.2d 805 lowed. ¶ Supreme recently spoken Court has on the United States Services, Department us in Lassiter v. Social issue before (1981). In Lassiter 2153 101 S. Ct. L.Ed.2d U.S. (comparable to were terminated the mother’s by counsel. represented was not while she proceeding), severence appointment requires by statute that Kansas Bear in mind we are concerned and that in termination counsel in a nonseverance this case proceeding. the Lassiter court was as follows: rationale of sum, precedents speak with what ‘fundamental “In the Court’s one voice about counsel, appointed right has fairness’ has meant when the Court considered right presumption indigent litigant that an and we thus draw from them the when, loses, may physical appointed only if he he of his liberty. against presumption that all the elements in the due It is this other decision must be measured. 319, 335, propounds Eldridge, three elements “The Mathews v. 424 U.S. case of viz., private process requires, deciding interests at evaluated in what to be stake, interest, procedures government’s will lead used risk other, against and then We these elements each erroneous decisions. must balance against presumption that there is a weight in set their net the scales unsuccessful, may only indigent, lose his if he is where the *13 26-27.) (pp. personal freedom.” elements in consider- went on to discuss the various The court has proceedings the State termination detail, noting that in able (parental interest upon simply infringe sought not opinion lengthy The Lassiter child), end it. but to as follows: summarized establish an absolute not process clause does (1) The due representation indigent for appointment of proceedings; termination parties are who psy- expert medical or complex (2) particular case In a are se- testimony is introduced chiatric same, ability comprehend handicapped in their verely counsel; and appointment process might circumstances, ap- unique (3) such a combination Absent a matter termination cases is pointment constitutionally mandated. policy and legislative in its conclusion: The Lassiter court noted Amendment, imposes on the States our Constitution “In its Fourteenth fundamentally judicial proceedings fair. A that to ensure standards however, higher adopted may require than public policy, standards be wise clearly opinion minimally the Constitution. Informed tolerable under those appointed indigent parent is entitled to assistance hold that an come to proceedings, dependency only but in termination counsel not significantly, omitted.] 33 States and neglect [Citations well. Most statutorily provide for the of counsel the District of Columbia today way implies opinion that the standards The Court’s no termination cases. by increasingly public widely urged informed and now followed 33-34) enlightened (pp. States are other than and wise.” strongest weight” case the “net It that even in the follows indigent affecting appointment considerations “tip proceedings would not nonseverance appointed counsel. against presumption scales” should be The issue of whether counsel unquestionably cases is parents in child nonseverance legislature a con- policy determined matter of to be —not by judicial upon law requirement engrafted our stitutional to be fiat. potential majority’s has enormous incorrect decision future, which are cases to be tried

harm. It affects severance Perhaps facts. even deprived child based on old nonseverance invalidity many importantly, long shadows of more casts adoptions. resulting their closed severance cases and Appeals and hold there is no I would reverse the Court of *14 appointment constitutional for in nonseverance deprived child cases. closing, appointment it is guardian noted that of a ad litem juvenile mandatory

for the in by court independent prose- statute Kansas. Such an of the charged protecting cutor and is the child’s interest in the provides proceedings. This an safeguard against additional error. Schroeder, Miller, J., join foregoing dissenting C.J. opinion.

Schroeder, C.J., dissenting: fully join I dissenting opinion by McFarland, duty written but feel bound call Justice problems interpretation attention to difficult implementa- opinion tion of the court’s and the havoc this will cause past child cases from the where severance of by sought not been the State. by sole issue determined the court in this case is whether in “deprived hearings child” where State in the exercise of its parental power care, give guidance, discipline seeks to such as will best serve the child’s welfare and where there be a temporary custody loss parents, parent parents

natural represented or court-appointed be expense county counsel at parent parents of the when the or financially employ unable to counsel. process requirement There is no due under the Constitution of interpreted by United States as Supreme the United States Court, Constitution, the Kansas nor under the Kansas Code that counsel parent for the indigent Juvenile parents or under these circumstances. By reversing the Court majority opinion at- tempts to straddle ways yes, appoint the fence and have it both — cases, no, in some but do not other majority opinion cases. The states: 2,206 Kansas, hearings many “In 1980 there were of which purpose temporary change provide special

had for their care training and treatment of the develop child and proper skills to enable the to care the home. In these cases process requirement necessitating we see no due of counsel for indigent parents expense county.” at the Many “deprived of these were hearings child” State, judges of by the the trial sought but custody was

change of prior determine are now admonished appointed for the whether counsel should such cases parents. The states: attorney, request made of any a record should be case when the “In judge indigency, refuse bearing and if the should their financial circumstances important grounds request the refusal be stated it is for counsel judicial can be had.” meaningful review of the refusal record so the trial court’s determina- appellate on review of Our courts *15 case, hearing any in the tion, prior evidence which was made to trial. In transcript of the evidence taken at the review the will words, hindsight will determine appellate use to other the court Obviously, trial judge the should the crucial constitutional issue. deciding the position in this crucial issue on put not be in which yet light be heard and of standards basis of evidence to trial give The net result will be that the guidance. no definitive determination, making will side in judge, to be on the safe parent parents expense appoint indigent or counsel for taxpayer nearly every temporary custody is of the in case where by “deprived sought in child” trial in appointing Related to the dilemma of the court deprived hearings opinion in is the effect of this future child past hearings. By raising to decisions not to process constitutional the due clause of dimensions requirement appointment United States Constitution the parents deprived represent indigent parent of counsel or only temporary custody, child cases where the State seeks Kansas, final, validity many adoptions in long considered to placed jeopardy. is A collateral attack can now be made adoption an final on ground overturn heretofore considered jurisdiction parental rights trial court had no sever process place parent’s the first of violation of that because rights by today. issue in the enunciated the court collateral indigency original attack will be deprived only temporary sought child hearing where was by appellate perceives the State. If an error in failure to court appoint counsel, presented that error will render evidence prior proceedings. in future proceeding inadmissible my upon is an errone- the court’s decision founded “[A]ny premise by ous which is stated as follows: court hearing child well be at the evidence introduced hearing.” in a later severance inadmissible rights sought is in a It is submitted where admissible, all relevant hearing hearing take previously been whether there has by the State or not. The of the children parents at the sever- attorney represent indigent Supp. K.S.A. 1980 required our statute hearings, ance as requirement 38-820, process ad- the due constitutional satisfies by the in this case. dressed court requirement imposing process a due

Any this decision of hearing and exclusion of evidence alleged violation of due proceedings because of in later severance abuse their children with- permit unfit would protect the children. out recourse the State to proceeding goes in a later proposed of evidence This exclusion If, permanent sever- necessary. than farther and no sought, ance of 38-820, required by represent them as appointed to judgment? It is reversing enter in what would the court order precisely of the Court order submitted order would Cooper, In re 5 Kan. 2d in this case of is worded 584, 592, (1980). It P.2d 437 reads: *16 judgment the trial court determine with directions that “The is remanded ‘deprived indigent If it is appellant of the child’

whether was at the time time, judg- appellant that then the trial court’s was at determined appoint an and the trial court is directed to ment herein is reversed Cooper appellant is a grant determine whether her a new trial to and to Julie deprived child.” with statement of the law Finally, the court’s I cannot reconcile to me that court this case. It is inconceivable disposition its requirement arbitrarily there was no can find affirm the triaf appellant, in this case and Marilyn Dickey, the opinion and in the court’s the law as stated on the basis of where severance of ever a case existed in this case. If the facts the case. offing, this is rights loomed in 1979, the child abuse police assigned to January Prior the second making calls at workers assisted social division concerning Roy Dickey Marilyn Dickey and apartment floor children, Joseph Dickey, age four two well-being of their months, following re- months, Cooper, age eighteen and Julie being apartment left in the alone the children were ports that symptomatic proved of a reports well-founded night. Those professionals family unit. The discovered two disintegrating unsanitary living generally condi- children undernourished Joseph infant At the later January died. tions. On Julie, deputy hearing regarding girl body performed autopsy Joseph’s testified who coroner severely multiple and was under- Joseph suffered bruises nourished, being the causes prolonged malnutrition one of death. workers, testimony police, dep- social hearing

After coroner, Marilyn Dickey, uty judge the trial terminated the Note, enough saying he had heard evidence. State was child, temporary custody remaining merely seeking to take Cooper. The the trial court order of reads: Julie Dickey cooperate professional urge Mr. and Mrs. with the “The Court would step-father. Court, persons goal reuniting with her mother and Julie however, Dickey that if Mr. and Mrs. should to continue their does caution choose months, lifestyle, cooperate the next several and fail with the chaotic over SRS, Department presented illegal drug and should the Court Dickey home, the Court would file a involvement in recommend permanently petition requesting the Court to sever in Julie Cooper.” respectfully require ap- the court It is submitted should not pointment represent only deprivation sought by the State in a hearing, judgment and the of the trial court should be affirmed. JJ., join foregoing dissenting McFarland,

Miller opinion.