*1 v. DEPARTMENT OF OF SOCIAL SERVICES LASSITER COUNTY, NORTH CAROLINA DURHAM 1, 1981 February 23, Argued 1981 Decided June No. 79-6423. *2 J., opinion Court, in which C. J., delivered the Burger, Stewart, joined. Burger, J., JJ., C. filed and and Powell, Rehnquist, White, dissenting opinion, J., concurring opinion, post, p. filed a 34. Blackmun, p. J., JJ., joined, post, 35. Stevens, and Marshall, which Brennan dissenting opinion, post, p. 59. filed a for petitioner. hoc vice argued pro the cause Leowen Evans Robert L. Gregory C. Malhoit and him on briefs were With Walker. argued respondent. Russell Odom the cause
Thomas Lester W. him on the brief was Owen. With Shaber, General, ar Attorney Assistant Steven Mansfield amicus Carolina as State of North for the cause gued for the With him on brief affirmance. curiae urging L. curiae as amici al. were et North Carolina Rufus State Richard Edmisten, Attorney Carolina; of North General Regina Mullen Gebelein, Attorney General Delaware, Allain, Attorney Mis Bill General Small, Solicitor; State Bruce, Gen Jim R. Special Attorney Assistant sissippi, and H. Sidney Florida, Smith, Attorney General of Jim eral; Bryan, Richard R. McKenzie, Attorney General; Assistant Cormier, Deputy K. Nevada, and Claudia Attorney General of Clark, Attorney Ar Steve General Attorney General; Ross, Attorney General.* Robert R. kansas, Deputy opinion the Court. delivered Stewart Justice *3 hearing spring In after evidence that the late Abby her infant Lassiter, provided had not petitioner, Gail proper care, with the District Court son William medical child adjudicated neglected him a County, C., Durham N. County to the custody transferred him of the Durham and A respondent year Department Services, Social here. charged first-degree later, murder, Ms. Lassiter was with was second-degree murder, began convicted a sentence years imprisonment.1 Department to 40 1978 the Gans, *Briefs of amici curiae urging by Louise Gruner reversal were filed Phyllis Mitchell, Catherine P. Gelman for the Center on National Lundberg Family Inc., David B. Law, al.; by et Women for the Payne Legal Aid Robert S. Association; National and Defender for the North Carolina Civil Liberties Union. Smith, Jr., Reece
Wm. filed a brief for the American Bar Association amicus curiae. Appeals,
1The North Court of reviewing petitioner’s- Carolina conviction, during indicated that the murder occurred be an altercation Lassiter, mother, tween Ms. her and the deceased: They mother told began “Defendant’s to 'come on.’ to [the deceased] struggle and deceased fell or was knocked to the floor. Defendant’s to Ms. Lassiter’s the court terminate
petitioned any had “has not she rights because, Department alleged, “has 1975” and child since December of contact with the con- for more than two willfully child in foster care left the progress has years substantial showing secutive without re- led to the correcting the conditions which been made response to positive of the child, showing moval without of Social Services to diligent Department efforts of the fol- or to make and strengthen relationship child, through constructive the future low planning child.” notice petition
Ms. with the and with Lassiter was served Although her mother hearing that a on it be held. would counsel for her in connection with an effort had retained men- invalidate the murder Lassiter never Ms. conviction, to him for that forthcoming hearing (or, matter, tioned in the any prison). other she to “someone” person except, said, attorney, Department At the behest of the of Social Services’ held hearing, was brought prison she was from to the which hearing opened, apparently August 31, 1978. a discussion of whether Ms. Lassiter judge’s instance, with legal assistance. have more time in which find should beating was still mother was deceased with a broom. deceased While broom, being entered the on the floor and beaten with the defendant apartment. got knife. She went into the kitchen and a butcher She took began stabbing prostrate. still the knife and the deceased who was Lassiter, body No. of deceased had seven stab . .” State v. wounds . . (June 1, 1977). 7614SC1054 *4 appeal, sought to at-
After her conviction was affirmed on Ms. Lassiter Among arguments her collaterally. the assistance of was that tack “seek to elicit trial counsel had been ineffective because he had failed to jury before the the statement made Lassiter’s or introduce [Ms. ” had, mother,] it, hope I did she Lassiter’s mother like ‘And dies.’ Ms. however, first-degree charge; Lassiter, been indicted on a murder Ms. granted the elder motion for a the trial court Ms. Lassiter’s nonsuit. Division, Justice, Superior Court of Court denied North Carolina General 76-CR-31Q2 (Mar. 20, motion for collateral relief. Ms. Lassiter’s File No. 1979). ample opportu- court
Since the concluded that she “has had nity of this prior seek and obtain counsel to the hearing just her failure so is matter, cause,” to do without [that] did not postpone proceedings. the court Ms. Lassiter did appoint not court did not indigent, aver that she was and the for her. respondent Department A social worker from the was the Department first witness. She testified that in 1975 the “re- complaint ceived a from Duke had Pediatrics that William not been pediatric problems followed in the clinic for medical difficulty they that were having locating Ms. Las- . siter . . .” May She said that in 1975 a social worker had taken William to the hospital, where asked that he doctors stay “because of breathing difficulties malnutrition and [and] great scarring there was a deal of indicated that [because] he gone that had severe infection that had untreated.” further that, except witness testified “prear- one ranged” meeting visit and a chance on the Ms. street, Las- siter had not seen William after he had come into the State’s custody, and neither Ms. Lassiter nor her mother had any “made contact with Department of Social Services regarding that child.” When asked whether William should placed grandmother’s custody, his the social worker said he grandmother should since the “has indicated me not, on a number occasions that she was able to take re- sponsibility for the “I child” and since have checked with people in the community and from Ms. church Lassiter’s who also feel that responsibility this additional would be more than she can handle.” The social worker added that William not seen grandmother “has his since the chance meeting July of ’76 and that the only was time.”
After the direct examination of the social worker, judge said:
“I notice we made extensive findings in June ’75 you were served with papers and called the social *5 you and coming; them
services and told weren’t Ias have said And, serious lack of medical treatment. findings ’75, the Court day of the 16th of June my mother Lassiter, Lucille Ms. grandmother, finds that day 8th on the Abby complaint filed a Lassiter, Gail daughter left the often 1975, alleging May, for L. with her Felicia and William children, Candina, she was days money or food while providing without gone.” of the social
Ms. conducted cross-examination Lassiter testimony. The reiterated her earlier worker, firmly who clarity, judge explained varying degrees of times, several stage; only questions that Ms. Lassiter should ask they not of her because were many questions were disallowed really questions, arguments. but judge’s ques- then under testified,
Ms. Lassiter herself tioning, properly that she had cared for William. Under more she seen cross-examination, said that she had William he from her cus- than five six times after had been taken tody and if could not William be with she wanted her, that, him to be with her mother “He us. since, knows Children they . family. They they they know . know know people, . they family anywhere. got and that child us knows ... they boy four children. girls more other Three they know they little brother when see him.” Ms. Lassiter’s mother She was then called as a witness. under the denied, she had filed questioning judge, that the complaint against Ms. on Lassiter, and cross-examination she denied having both failed he to visit William when was custody having in the State’s could care said she for him. court found that Ms. Lassiter “has not contacted
Department of Social Services about her
Decem-
since
child
any
ber, 1975,
expressed
has not
concern for his
care
welfare, and has made no
plan
efforts to
Be-
his future.”
*6
“wilfully
cause Ms. Lassiter thus had
failed to maintain con-
or responsibility
minor,”
cern
for the welfare of the
“in
minor,”
because it was
the
interests of the
court
best
parent.2
terminated
Lassiter’s
Ms.
status William’s
as
appeal,
argued only that,
On
Lassiter
because she was
Ms.
indigent,
the Due Process Clause of the Fourteenth Amend-
ment entitled
counsel,
to the assistance of
and that
trial
requiring
court had therefore erred in not
State
provide counsel for
The
Ap-
her.
North Carolina Court of
peals decided that
this State action
a
does invade
“[w]hile
protected area of
privacy,
individual
the invasion is
so
serious or
compel
unreasonable as
us to hold
appoint-
that
ment of
indigent parents
counsel for
constitutionally
man-
Lassiter,
dated.”
In re
App. 525,
43 N. C.
2d
527, 259
E.S.
336, 337.
Supreme
The
Court of
summarily
North Carolina
denied Ms.
application
discretionary
Lassiter’s
review,
120,
N. C.
262 S. E.
granted
2d
and we
certiorari to con-
petitioner’s
sider the
claim under the Due Process
Clause
the Fourteenth Amendment,
II For all its process” “due has never consequence, been, “ perhaps can be, never defined. nlike precisely legal some [U] rules,” this Court has said, due process “is not a technical conception with a fixed content time, place unrelated to circumstances.” McElroy, Workers Cafeteria 886, 895. Rather, phrase expresses the requirement of “fundamental fairness,” requirement meaning whose can be as opaque importance its is lofty. Applying Due Process Clause is an therefore enterprise uncertain which petition had also asked that rights putative father, Boykin, Boykin William be terminated. was not married to Ms. Lassiter, he had never contributed to William’s support, financial indeed he denied that he was William’s father. granted The court petition alleged parental to terminate his status. in a consists of fairness” “fundamental
must discover what prece- any relevant considering situation first particular interests that are by assessing the several then dents and stake.
A from emerges pre-eminent generalization coun- right appointed indigent’s on precedents an Court’s only where recognized to exist such has been right sel is that litiga- liberty if he loses physical the litigant lose his of Betts principle overruled Thus, tion. when Court need in criminal trials Brady, 316 U. S. given case *7 circumstances in a appointed only where the be sentenced in the case of a man it, Court did so demand S. years. Wainwright, 372 U. for v. prison to five Gideon estab- Hamlin, 407 Argersinger And U. S. 335. thus 25, may any indigent before provided lished that counsel must be petty crime even where the is prison, be to sentenced prison term brief. freedom, in personal the defendant’s interest That is Amend- Sixth Fourteenth simply special triggers the right cases, to counsel in criminal which ments by the Court’s right appointed counsel demonstrated to is Gault, “the Due 1, in In re 387 that announcement U. S. requires that Process Clause of Fourteenth Amendment which delinquency respect proceedings in to determine in which may result in commitment to an institution to curtailed,” right juvenile has a juvenile’s freedom may be proceedings those appointed though counsel even Id., (emphasis styled “civil” “criminal.” at and not added). four of the five Justices who reached Similarly, concluded that an Jones, 480, in Vitek v. 445 U. S. merits being counsel before appointed indigent prisoner entitled mental hos- involuntarily for treatment to a state transferred in only from the other four The fifth pital. Justice differed required assist- declining “possibility to exclude the by competent laymen be rendered in some cases.” anee Id., J.). opinion (separate at Powell, liberty
Significantly, litigant’s personal in as a Gag- In right appointed so does his diminishes, counsel. non the due Scarpelli, 778, gauged U. S. the Court rights pro- process previously probationer a sentenced a Brewer, hearing. Morrissey v. 408 U. S. bation-revocation analogous hearing to revoke 480, which involved an parole, deprives the Court had said: an individ- “Revocation liberty every not of ual, the absolute to which citizen is en- titled, only but liberty properly dependent the conditional Relying on on special parole observance restrictions.” discussion, the Court in declined to hold that Scarpelli indigent probationers per se, right to counsel rev- have, ocation left coun- hearings, and instead the decision whether appointed should case-by-case sel to be on basis. made Finally, the Court has right ap- refused to extend pointed crim- prosecutions though include which, inal, do not liberty. result of personal defendant’s loss The Court Scott v. Illinois, instance, interpreted premise Argersinger” the “central to be “that imprisonment actual penalty is a kind fines different from imprisonment,” the mere threat of and the Court endorsed *8 premise that “eminently [ing] adoption as and warrant sound imprisonment defining actual line the the constitutional right appointment Id., to of counsel.” 373. The Court thus held Sixth “that the Fourteenth Amendments to the only United States Constitution no require indigent that criminal defendant be imprisonment sentenced to a term of unless the State has afforded him right the to assistance of appointed counsel in Id., his defense.” at 373-374.
In sum, precedents the Court’s speak with one voice about what “fundamental fairness” has meant when the Court has right appointed considered the to counsel, we thus draw from them the presumption indigent litigant that an has a right appointed only when, may to if he he loses, counsel deprived physical liberty. against pre- of his It sumption process that all other de- elements in due cision must be measured.
B 319, 335, pro- case Mathews v. U. S. Eldridge, pounds deciding three elements to be what due evaluated process private gov- interests requires, viz., stake, procedures ernment’s and the risk used will interest, that lead to erroneous decisions. must balance these elements We against weight each their net in the other, and then set scales against presumption right appointed that there is a only may indigent, unsuccessful, where the if he is personal lose his freedom. plain beyond
This decisions Court’s have now made multiple parent’s the need for desire for and citation that management right to “the companionship, care, custody, of his or her “undeni- important children” is an interest ably and, powerful warrants deference absent a countervail- ing protection.” Stanley Illinois, v. interest, U. S. 651. Here sought simply infringe upon the State has not but to If interest, end it. prevails, State will have Anderson, unique deprivation. May worked a kind of Cf. 533; Armstrong Manzo, 345 U. A 545. U. S. parent’s accuracy justice interest in the of the decision his or is, terminate status a com- therefore, manding one.3 urgent
Since the State has an interest in the welfare of child, it parent’s shares the interest in an accurate and just may decision. For this in- reason, the State share the digent parent’s coun- availability appointed interest parents protect. Some will have an additional Petitions parental rights uncommonly to terminate are alleged based on criminal activity. legal guide Parents so accused need counsel to them in understanding problems petitions may such create. *9 accurate and adversary system presupposes, our If,
sel. as equal through the likely be obtained just are most to results child’s in the the State’s opposed interests, contest hearing which by in be served a may perhaps best welfare rep- the child are acting State parent the and the both of interests the contest by without whom counsel, resented itself North Carolina unwholesomely unequal. become parent a acknowledges by providing much that where as the State petition, termination files a written answer to a lawyer the child. C. Stat. represent to Gen. supply must a N. 1979). (Supp. 7A-289.29 § clearly diverge from the interests, however,
The State’s decision as the wishes the termination parent’s insofar State thus wants economically possible as made as cost of counsel and the expense appointed both the avoid But may cause. lengthened presence the his proceedings hardly though the interest is pecuniary legitimate, State’s important enough private interests as significant to overcome concession in the particularly light those here, coun- respondent’s “potential appointed brief costs of admittedly de proceedings sel termination ... [sic] minimis in all criminal actions.” compared costs given to the risk a
Finally, consideration must be or her be- erroneously deprived child parent will be of his by North Caro- parent represented is not counsel. cause by estab- lina law now seeks assure accurate decisions A to terminate procedures: petition following lishing seeking rights may only by parent be filed a by county depart- parent’s rights, of the termination other with child-placing agency ment of or licensed services social custody person whom child has child, continuously years preceding petition. for the lived two A sufficient to petition 7A-289.24. must describe facts war- § finding grounds exists, rant a that one of the for termination parent (6), peti- § 7A-289.25 must be notified given days tion and to file which a written answer to it,
29
the
allegation,
7A-289.27.
If that answer denies a material
§
the
lawyer
been
a
as
child’s
must,
appoint
court
as has
noted,
ad litem and must conduct a
hearing to re-
guardian
special
7A-
by
the answer.
petition
§
solve the issues raised
and
issue
answer,
If the
no
“the court shall
parent
289.29.
files
;
. .
rights
and custodial
.
terminating
parental
an order
all
provided
hearing
petition
court
order
on the
and
shall
a
may
alleged
or
on the facts
petitioner
examine the
others
by
Findings
are made
petition.”
§
7A-289.28.
of fact
on
sitting
jury
clear,
court
without a
must “be based
and
cogent,
convincing
Any party
and
evidence.”
7A-289.30.
§
days
after
appeal
gives
appeal
who
notice of
within
may
hearing.
§ 7A-289.34.4
respondent
argues
subject
The
of a termina-
hearing
parent’s relationship
tion
with
child—far
—the
being
is one
to
abstruse,
technical,
unfamiliar,
from
or
which the
informed and
parent
uniquely
be
well
must
parent
given prolonged thought.
which the
must have
The
not
respondent
hearing
also contends that a termination
or
likely
produce
points
evidentiary
even
law,
difficult
peculiar
evidentiary problems
substantive
since the
law,
for
present
to criminal trials are
and since
standards
respondent
complicated.
termination are not
fact,
Departments
the North Carolina
of Social Serv-
reports,
termination
represented
are themselves
sometimes
ices
by lawyers.5
hearings
social workers instead
hearings
respondent
points
termination
also
out
custody
commonly
only
proceeding in
the child has
occur
after a
which
judicially
abused, neglected,
dependent,
to be
and that an
been found
right
represented by appointed counsel at
indigent parent has a
custody hearing.
7A-587.
§
hearing
provisions
Lassiter’s
occurred before some of these
were
Ms.
“clear,
not,
instance,
cogent,
did
enacted. She
have
benefit
evidentiary standard,
convincing”
nor did she have counsel at
custody.
hearing in which
was taken from her
William
respondent and the Columbia Journal of Law
Social
Both the
surveys
Problems,
(1968),
L. & Soc. Prob. 230
have conducted
Colum. J.
hearing
Yet the
which a termination
ultimate issues with
always
commonplace they
are not
however
simple,
deals
which few
Expert
psychiatric testimony,
be.
medical
confute,
parents
equipped
are
to understand
fewer still
people
to be
presented.
parents
likely
is sometimes
are
difficulty in
little
uncommon
education,
with
who have had
into
thrust
dealing
life,
are,
hearing,
and who
at the
these factors
distressing and
situation.
That
disorienting
parent
uncounseled
is evident
may combine to overwhelm an
*11
g., Davis
findings
See,
from the
courts have made.
e.
some
Jami
Page,
Supp.
(SD
1977);
442 F.
261
Fla.
State v.
258,
v.
Thus,
son, 251
17
114,
15,
(1968).
Ore.
444 P. 2d
117-118,
appoint
State must
coun
generally
courts have
held that the
State ex
indigent parents
sel for
at termination proceedings.
Miller,
(1980)
6,
;
rel. Heller v.
61
St. 2d
C dispositive addressed, which must now be question, Eldridge weighed against whether the three when factors, counsel in the presumption right appointed that there is no physical liberty, potential deprivation absence at least a to the presumption to rebut to lead suffice thus appoint- requires conclusion that the Due Process Clause indigent’s an ment of counsel when seeks terminate a State To the above discussion status. summarize extremely impor- Eldridge is an parent’s factors: crimi- dangers (and may supplemented one tant proceedings); liability inherent in some termination nal decision, in a correct parent with the an interest State shares not some but interest, relatively pecuniary and, weak has a proce- informal stronger interest possibly has a cases, all incapac- complexity proceeding dures; and always be, could but would ity parent of the uncounseled *12 deprivation risk of an erroneous enough to make the great be, high. parent’s rights insupportably their interests were at parent’s the given case, in a If, the at their interests were the State’s strongest, weakest, not be said the their it could that peak, of error were at risks against the presumption not overcome Eldridge did factors not did process that due appointed counsel, and right the to the But since appointment of counsel. require the therefore since distributed, be always so Eldridge factors will require significant that rigid is not so as process “due always flexibility economy must informality, in interests neither sacrificed,” Gagnon Scarpelli, S., v. U. be of appointment say requires the Constitution we that can We there- every proceeding. termination counsel in Gagnon in Scar- appropriate standard found adopt fore for the process due calls decision whether leave the pelli, parents in termination indigent counsel of appointment in the first instance the trial to be answered proceedings appellate g., Wood course, See, review. e. subject, court, 261. Georgia, 450
Ill prudent nor possible is neither Scarpelli, Here, as “[i]t precise guide- formulate and detailed set attempt determining providing when lines to followed applicable to meet re- necessary process due counsel here, case, as in facts and since that quirements,” “[t]he susceptible . . . are infinite varia- circumstances almost .” child- S., Nevertheless, . . . 411 U. at 790. because tion custody litigation rapidly must be as is consist- concluded fairness,7 today judge we decide trial ent with whether the process ap- due when did not denied Ms. Lassiter law he point for her. respondent represents petition that to terminate parental rights
Ms. no of ne allegations Lassiter’s contained glect or upon charges based, abuse which criminal could be and hence could she argued Ms. Lassiter not well have that that required Department counsel for reason. The of Social no represented hearing by Services was but counsel, expert testified, presented specially witnesses and the case no troublesome points law, procedural either substantive. admitted, While evidence was no hearsay doubt and while Lassiter left incomplete Ms. no doubt her defense Department had not adequately rekindling assisted her in her weight son, of the evidence had that she sparks few sufficiently of such an interest great was 7 According respondent’s brief, to the living William Lassiter “in now *13 committed pre-adoptive parents a home with foster to adoption formal to legal his parents.” legally become He cannot be adopted, nor can his finally clarified, litigation status otherwise be until ends. a
presence of counsel for Ms. could not have made Lassiter lawyer might done determinative difference. a have True, argument more with the that should live with William ex- argument quite Ms. Lassiter’s that was mother —but that plicity Lassiters, made both and the evidence elder Lassiter could not another Ms. had said she handle investigation that the had led to simi social worker’s child, grandmother conclusion, displayed lar and that had scant in the child once from her he had been removed daughter’s custody though sufficiently was, controverted, sub guidance point stantial the absence of on this counsel’s not Fi proceedings fundamentally did render the unfair.8 ap deciding process requires a court whether due nally, plain not demon pointment ignore a parent’s need hearing. in attending stration that she is not interested court Las- Here, previously the trial had found that Ms. the 1975 child cus expressly appear had declined to siter speak to tody Ms. Lassiter had even bothered hearing, lawyer being to her of the termination retained after notified Lassiter’s specifically and the court found that hearing, Ms. proceed the termination failure to make an effort contest circumstances, In view all these ing was without cause. failing appoint the trial court not err we hold that did counsel Ms. Lassiter.
IV imposes our Constitution Amendment, its Fourteenth judicial ensure that necessary on the standards States the A policy, fundamentally public fair. wise proceedings are adopted than higher however, require that standards Informed minimally tolerable under Constitution. those indigent parent an clearly come hold that opinion has given argument her should have been here that mother Ms. Lassiter’s hardly argument in the collateral custody consistent with William innocent because her she was on her murder conviction attack supra. guilty. n. mother was See *14 in only counsel not of appointed to the assistance entitled dependency in and but proceedings, parental termination for Juve- well. Standards proceedings as IJA-ARA neglect (b) (1980); 2.3 Uni- for Private Parties Justice, nile Counsel L. A. 35 Na- (1979); Act 26 9A U. (a), § form Juvenile Court Rules for Delinquency, and Model Council on Crime tional Dept, HEW, S. Chil- Courts, (1969); U. Juvenile Rule Legislative Family for dren’s Bureau, Drafting Guide HEW, (b) (1969); Dept, Court Acts §25 Juvenile for the Bureau, Legislative Children’s Guides Termination Responsibilities Adoption and the Rights Parental Pt. on Children, (1961); Council Crime and II, § National Most Delinquency, (1959). Act § Standard Juvenile Court significantly, provide 33 States and the District Columbia statutorily in for the of counsel termination appointment in opinion today way implies cases. The no Court’s increasingly urged public opinion standards informed by widely by than enlightened now followed the States are other and wise.
For the stated judgment reasons this opinion, affirmed.
It is so ordered. Burger, concurring. Chief Justice join opinion only I Court’s and add few words emphasize I believe is factor misconceived dissenters. purpose proceeding of the termination here was issue “punitive.” Post, contrary, purpose at 48. its On protective was child’s record of the best interests. Given the ease, rights which involves of a mother lengthy under inter- sentence murder who showed little might est in her been son, the writ well have a “candidate” granted. ante, for dismissal See 32-33. improvidently join However, holding am content the narrow Court, leaving appointment of counsel termination
proceedings to be determined by the state courts on a case- by-case basis.
Justice with whom Justice Blackmun, Brennan Justice Marshall join, dissenting. *15 today Court indigent denies an the represen- mother
tation of
judicial
counsel in
proceeding
by
initiated
State of North Carolina to
her parental
rights
terminate
respect
youngest
child. The
appro-
Court most
priately recognizes that
the mother’s interest
is a “command-
one,” ante, at
ing
27, and
no countervailing
finds
state
interest
remotely
of even
comparable
ante,
see
significance,
27-28,
at
31. Nonetheless,
the Court
what
avoids
seems
me the obvious conclusion that due process requires
pres-
ence of counsel for a parent
judicial
threatened with
termina-
tion of
rights, and, instead, revives an
hoc ap-
ad
proach thoroughly
nearly
years
discredited
ago in Gideon
Wainwright,
v.
This Court is not unfamiliar problem with the of determin- ing under what legal circumstances representation is man- dated Constitution. Betts Brady, 316 v. U. S. 455 (1942), it reviewed both length the tradition behind the Sixth Amendment right to counsel in criminal trials and the practices historical of the States in that area. The decision in Betts —that the Sixth Amendment right did counsel apply to the States and process guarantee due of the Fourteenth permitted Amendment a flexible, case-by- case determination of the defendant’s need for state criminal trials —was overruled in Gideon Wainwright, v. S.,
372 U.
at 345. The Court in
rejected
Gideon
the Betts
reasoning
indigent
to the effect that counsel for
criminal
“
defendants was
'not a fundamental
essential
right,
to a fair
”
Brady,
S.,
at 340
(quoting
trial.’
Betts
U. S.,
471). Finding
right
well founded in its
precedents,
require
Court further concluded that
''reason and reflection
recognize
system
in our adversary
jus-
us to
of criminal
any person haled into
too
tice,
court,
poor
who is
hire a
cannot be
lawyer,
pro-
assured a fair trial unless counsel is
Similarly,
Argersinger
vided
him.” 372 U.
at 344.
S.,
Hamlin,
(1972),
Outside criminal the Court has relied on the flexible nature process guarantee of the due whenever it has decided that counsel is not constitutionally required. special purposes of probation revocation determinations, *16 the informal nature of those proceedings, administrative including the absence of counsel for the led the State, Court to conclude that due process not require does counsel for probationers. Gagnon Scarpelli, S. 778, 785-789 U. (1973). In the case school disciplinary proceedings, which are brief, informal, and intended in part to be educative, the Court also found no requirement legal for counsel. Goss v. Lopez, 419 (1975). U. S. Most recently, the Court declined to intrude presence the for counsel facing minor voluntary by civil commitment his parent, because of the parent’s substantial role that decision and because of the essentially decision’s medical and informal nature. Parham R., 442 v. J. 604-609 (1979).
In each of these instances, the Court has recognized that Illinois, 1Tn Scott v. (1979), U. S. 367 analysis the Court’s of Sixth jurisprudence Amendment led to the right conclusion that to counsel constitutionally is not imprisonment mandated when actually is not imposed. process what due relation to the interests at stake is varies and the governmental proceedings. nature of the Where the liberty individual’s is of diminished or less than fundamental in- stature, prescribed procedure where the an decisionmaking trappings volves informal without adversarial trial-type req- counsel has not been a proceeding, process. uisite of due Implicit analysis this is the fact contrary may conclusion be warranted. sometimes sufficiently an liberty Where individual’s interest assumes weighty significance, by constitutional and the State a formal proceeding adversarial seeks to interest, curtail that may right necessary to ensure fundamental Gault, fairness. See re 1 (1967). say U. S. To simply to acknowledge due process allows adoption of different rules to address situations or different contexts.
It is disputed that state intervention to terminate relationship petitioner between child be accom must plished by procedures meeting requisites of the Due Proc ess Clause. Nor is any there doubt here kind of about procedure prescribed. North Carolina has North Carolina requires law notice trial-type and a before the State hearing on its own initiative sever of parenthood. the bonds The decisionmaker is a judge, rules evidence are in force, State represented The ques counsel. tion, then, proceedings is whether in this mold, that relate to a subject vital, so comport can with fundamental fairness when the parent defendant unrepresented by remains coun today sel. As the properly Court our consid acknowledges, *17 eration of process due in context, as in must others, rely on’ a of balancing competing private public and in approach an terests, succinctly Eld described in Mathews v. ridge, 424 319, (1976).2 U. S. 335 As the majority, does
2 Streater, ante, See 5-6, 13-16; Organization also Little v. Smith v. Families, 816, Foster (1977); Morrissey Brewer, 431 U. S. 848-849 v. of 38 Eldridge: specified the “three factors”
evaluate distinct under the procedure the risk of error private affected; interest countervailing governmental by employed State; support procedure. the challenged interest of
A companion- stake here is of a in the parent At “the interest care, management his or her children.” ship, custody, of Stanley Illinois, 645, (1972). v. S. This 405 U. 651 interest culture, given in our occupies unique place legal the cen- trality family meaning focus for personal life as responsibility. precious more . than property . . “[F]ar Anderson, rights,” May 528, (1953), parental v. 345 U. S. 533 have been deemed to be those rights “essential among orderly pursuit happiness men,” v. Meyer free Nebraska, 262 399 to be 390, (1923), signifi- U. S. more “ priceless cant and merely than ‘liberties which derive from ” Illinois, shifting arrangements.’ Stanley economic v. 405 S., 651, Kovacs v. Cooper, 77, U. 336 U. S. quoting 95 J., (1949) (Frankfurter, concurring). although Accordingly, verbally specific subject Constitution is silent on the families, personal freedom of family choice matters of life has been long liberty viewed a fundamental interest worthy protection under the Fourteenth Amendment. Organization Smith v. Families, Foster 816, 431 S.U. 845 494, (1977); Cleveland, Moore v. East 431 S. (1977) U. 499 (plurality Massachusetts, opinion); Prince v. 158, 321 U. S. (1944); Society Sisters, 166 Pierce v. 510, 268 S.U. 534- Nebraska, (1925); Meyer v. S., at 399. U. Within general family ambit of integrity, the Court has accorded high degree of constitutional respect to a parent’s natural both in controlling the details of the child’s upbring- 471, (1972); Goldberg S. 408 U. Kelly, 262-263 (1970); McElroy, Workers (1961). 367 U. S. Cafeteria
39 (1972) ; 232-234 Yoder, 205, 406 U. S. ing, Wisconsin v. Sisters, S., 534-535, at and Society v. 268 U. Pierce of Smith child, custody companionship retaining Families, 842-847; 431 Organization S., v. Foster Stanley Illinois, at 651. S., v. 405 U. simply to influence
In this aim not case, State’s A termina- extinguish it. parent-child relationship but Un- rights is both total and irrevocable.3 tion no parent it custody proceedings, other leaves like child, participate or with the right visit communicate any affect- about, important or to know decision in, even physical or ing educational, emotional, religious, child’s forced dis- development. hardly It that surprising parent-child relationship recognized has been solution of punitive by courts,4 commenta- Congress,5 as a sanction 3 abused, law, adjudged Under Carolina when a child is to be North neglected, dependent, dispositional couched alternatives are not 7A-647, 7A-651 permanence. in terms C. Stat. See N. Gen. §§ 1979). specifically (Supp. contrast, the State’s termination statute “completely per provides terminating parental rights that an order child, manently obligations” parent and rights terminates all between except time as right the child’s of inheritance continues until such adopted. termi the child 7A-289.33. Such absolute and total § (1974); See, g., Ann. nation is e. Ariz. Stat. 8-539 not unusual. Rev. § (a) (West Supp. 1981); Civ. Code 31-6-5-6 Cal. Code Ann. 232.6 Ind. § § 1980); (2) Stat. (Supp. 1980); Ky. (Supp. 199.613 Mo. Rev. Rev. Stat. § 1980). (Supp. §211.482 4 (CA5 1981) (en banc); Brown Page, 599, 640 g., F. 2d 604 E. Davis v. (Nev. 1979); ex Lemaster v. Guy, 771, State Supp. rel. 476 F. 140, (1974); Oakley, 590, 598, Va. 203 S. E. 2d 157 W. Danforth 794, (Me. 1973); In Dept. Welfare, 799-800 Health & 303 A. 2d State 1980). (La. App. Howard, 2d 194, re 382 So. 95-1386, (1978) (“removal child from Rep. p. 22 of a No. See H. R. pen greater, if than criminal penalty great, parents is a as Report accompanied Indian Child Act alty .”). Welfare . . This provided Congress there for court- 95-608, 92 3069. L. Stat. Pub. parents facing pro- indigent Indian termination appointed counsel ante, tors.6 candidly The Court notes, must, parental rights termination of by the State is a kind “unique *19 deprivation.” of
The magnitude deprivation of this of significance is critical in the process calculus, process due for the to which an in- dividual is part “by entitled is in determined the extent ” which may he grievous 'condemned to suffer loss.’ Gold- berg Kelly, v. 397 S. 254, 263 (1970), Joint Anti- quoting Refugee Fascist McGrath, Committee v. 341 U. S. 168 123, (1951) (Frankfurter, Streater, See J., concurring). Little v. ante, 12; Brewer, at Morrissey v. 408 471, (1972). U. S. 481 Surely there can be few grievous losses more than abroga- tion of rights. Yet today the Court asserts that this deprivation somehow is less serious than threatened losses deemed to require appointed counsel, because in this instance the parent’s “personal liberty” own not at stake. do believe that our cases support “presumption” ante,
asserted, at 26-27, physical only confinement is the liberty loss of grievous enough trigger right to appointed counsel under the Due Process Clause. Indeed, incarcera tion has been found to be neither necessary nor a sufficient condition for requiring counsel on behalf of an indigent de fendant. prospect parole canceled with probation, its consequent deprivation personal liberty, has not led the Court to require counsel prisoner for a facing a revoca tion proceeding. Gagnon Scarpelli, 411 S.,U. at ; 785 — 789 Brewer, Morrissey v. 408 S.,U. at 489. On the hand, other the fact that no new incarceration was threatened a trans fer from prison to a hospital mental not preclude did Court’s recognition adverse changes in the conditions of eeeding. (b), 102 3071, 92 Stat. (b) (1976 § 25 U. S. C. 1911 ed., Supp. § III). 6 See, g., Levine, e. Caveat Demystification Parens: A of the Child System, Protection 1, 35 U. (1973); Pitt. L. Rev. 52 Note, Neglect: Child Due Process Parent, for the 70 465, Colum. L. Rev. (1970); Repre in Child-Neglect sentation Cases: Are Neglected?, Parents 4 Colum. J. (1968) (Parent L. & Soc. Prob. Representation Study). stigma presumably of the is associated
confinement Jones, mentally ill. Vitek S.U. labeled being Court, For four Members of the these (1980). 492, coupled possibly with the liberty,” deprivations "other capacity compelled prisoner, mental diminished any indigent prisoner facing counsel for a trans- provision Id,., joined by (opinion J., 496-497 hearing. fer White, JJ.).7 In re See also Stevens, Marshall, Brennan, Gault, S., at 387 U. 24-25. generali- “pre-eminent recourse to a
Moreover, the Court's ante, importance of our flexi- zation,” 25, misrepresents consistently has process. approach to due That approach ble context. an particular attentiveness Once emphasized sufficiently deemed substantial or fun- individual *20 necessity determining the constitutional of a re- damental, we procedural protection requires that examine quested pro- the risk of error if the proceeding nature of the —both provided by and the burdens created its im- tection is Goldberg Kelly, 397 S. 254 position.8 Compare (1970), U. v. 7 represen agreed plurality independent with the that Powell Justice facing involuntary provided to an inmate transfer to a tation must representative hospital, but concluded that this need not be state mental attorney hearing was informal and the central an because transfer S.,U. issue was a medical one. 445 at 498-500. 8 physical liberty By emphasizing the of of all value exclusion interests, today grafts unnecessary the Court an other fundamental layer analysis balancing new onto its traditional three-factor burdensome conflating prior cases, Apart improperly two lines test. from distinct 35-38, supra, presumption” the Court’s reliance on a “rebuttable see objective dangerous precedent judicial undermine a review sets procedural protections. juvenile regarding Even in the area of other delinquency arguably proceedings, where the threat of incarceration court process, analogy to the criminal the Court has supports an automatic requested bright-line approach. Instead, it evaluated each eschewed a has consequences protection light play in its procedural for fair and truth generally Pennsylvania, McKeiver U. S. 528 See v. 403 determination. Winship, (1970); Gault, (1971); In re U. In re 1 397 S. 358 387 U. S. (1967). Eldridge, (1976), and Fuentes Mathews v. U. T. v. W. Grant with Mitchell Shevin, (1972), S. 67 U.
Co., (1974). S. 600 presumption insensitive opting
Rather than sufficiently only liberty onerous to is the loss incarceration by I appointed counsel, would abide justify right a relationships examine enduring commitment Court’s among sides, appropriateness on both and the the interests The funda- specific type proceeding. of counsel in the significance liberty pa- interests at stake a mental find proceeding rental termination and would undeniable, portion process heavily this first balance weighing of the due Eld- The second procedural protections. in favor refined ridge namely, procedure pro- the risk of error in the factor, with, by State, vided must then be reviewed some care. B extinguish paren method chosen North Carolina to rights many respects prosecution. resembles in a criminal tal probation Gag revocation procedure Unlike reviewed Scarpelli, heavily non on which the Court so relies, procedure distinctly termination formal and adversarial. proceeding by The State initiates the filing petition dis court, trict N. Gen. Stat. §§ C. 7A-289.23 and 7A-289.25 (Supp. 1979),9 serving on 7A- parent, § summons (1). judge 289.27 A state presides adjudicatory over the *21 hearing follows, and the is conducted hearing pursuant to the formal rules of evidence and procedure. N. C. Rule Civ. Proc. N. C. 1979). § Gen. Stat. 1A-1 In (Supp. gen- petition A may by termination private party, also be filed a such judicially appointed as a guardian, parent, a foster or the other natural parent. N. C. (Supp. 1979). Gen. Stat. Because the State §7A-289.24 may in those circumstances performing not be the same adversarial and accusatory role, Eldridge application an might yield of the three factors different respect right a result with to the to counsel. authenti- records be and must hearsay is inadmissible
eral, 44, 46. g., 1A-1, 1, 43, e. Rules See, § cated. accusatory an obvious has addition, proceeding
In the rights, parent’s a In to terminate punitive focus. moving try preserve to longer will it no the State has concluded that array public will marshal an family but instead unit, must separation parent-child to establish that resources representation legal The State has permanent.10 be made lawyer pub to This has access county attorney. through the family professional to social lic concerning records family situa investigate empowered workers who are legal rep testify against parent. tion State’s may experts family relations, upon call resentative also And, case. medicine to bolster State’s psychology, and course, legal in the expert himself is an the State’s counsel employed pro at the termination techniques standards including ceeding, the methods of cross-examination. mentioned at Significantly, parent’s rights and interests are not purpose for the North Carolina termination all under the statement 1979). contrast, in (Supp. statute. See N. C. Gen. Stat. §7A-289.22 statutory abuse, dependency proceedings a neglect, and the State has family Thus, obligation keep together possible. 7A-542. whenever § provide parents, 7A-587, in circum the State has chosen to counsel for § family integrity part where it at least in their interest stances shares opponent. At regards parent as an The Assistant but not where ap torney explained the decision to furnish of North Carolina General by neglect stage pointing to the State’s pointed counsel at the abuse and situation, given possibly conflicting respon an its need to avoid awkward parent Arg. 39-40. sibilities to and child. Tr. of Oral While policy, provide public it cannot excuse the failure sound as a matter indigent parent stage, termination where the State and the starkly adversaries, inequality power and the and resources is are evident. providing the child at the termination possibility of counsel for requires parties. prospect been raised
proceeding has not That here, and, again presented different from those of interests consideration respect right to the yield different result with to counsel. See might Organization R., (1979); 442 U. Smith generally Parham v. J. (1977). Families, 431 U. S. Foster *22 procedure devised respects, these In each of pro- vastly the informal and rehabilitative from differs State in educative Scarpelli, the brief, decision revocation bation essentially Goss, procedure disciplinary school here has Indeed, the State in Parham. decision medical of a formal trial as virtually the attributes all prescribed de- in the termination severity of loss at stake befits except counsel for the de- is, every attribute, cision— parent of counsel for the parent. provision fendant of the which is proceeding, the character alter would quintessentially legal. It, already adversarial, formal, ter- of an erroneous prospect diminish however, would inherently given the that is mination, prospect substantial, power and resources between State gross disparity indigent parent.11 the uncounseled legal light of error is of the prospect enhanced parent against which the As judged. defendant standard commonly here, adds demonstrated that standard another termination complexity proceeding. dimension to focusing than on the of isolated acts or omis- Bather facts typically charges State’s address the nature and sions, among quality complicated ongoing relationships parent, other child, parties. and even unrelated relatives, bar, petition petitioner case at accused of two of the State’s parental rights termination of grounds authorizing the several under North Carolina law: cause,
“That [petitioner] has without failed establish or responsibility maintain concern as to the child’s welfare. [petitioner]
“That willfully has left the in foster child care more years than two consecutive without show- R., Goldberg S., Parham 606-607; Kelly, Cf. v. J. 442 U. S.,U. at 266. *23 been
ing progress that substantial has made in correct- ing the conditions which led to the removal of child neglect], or without positive response a to showing [for diligent Department Social Services efforts strengthen to her relationship to the or to make child, through and planning with constructive for the follow future of the (Emphasis supplied.) child.” Juvenile 7, Petition 6, App. 3.12 ¶¶ legal posed
The issues petition neither State’s are simple easily nor The imprecise defined. standard is and subjective open to the values of A judge.13 parent seek- ing against to prevail prepared the State must be to adduce evidence about or personal his fault, abilities and lack of proof as well as of progress foresight parent and as a that the State would deem adequate improved and over situa- tion underlying previous adverse judgment neglect. of child parent possibly being cannot succeed without able identify issues, develop material gather present defenses,
12See N.
(1),
(3)
1977).
C. Gen.
(Supp.
Stat.
7A-289.32
7A-289.32
§§
(1)
Subdivision
repealed by
7A-289.32
Laws,
was
N.
§
1979
C. Sess.
ch.
669, §2.
13Under
law,
North Carolina
stage
there is
further
to the termination
inquiry. Should the trial court determine that
one more of the condi
authorizing
tions
established,
termination has been
it then
consider
must
whether
require
the best interests of the child
parent-
maintenance
relationship.
child
(a)
1979).
(Supp.
N. C. Gen. Stat.
7A-289.31
§
This Court more than once has adverted to the fact that
in-
“best
terests of the child”
guidance
standard
judges,
offers little
effectively encourage
rely
them
personal
on their
See,
own
values.
g.,
Organization
e.
Smith v.
Families,
Foster
S.,
36;
431
835,
n.
Baird,
Bellotti
622,
(1979)
443 U. S.
(Stevens,
J.,
655
concurring in
Quilloin
judgment).
Walcott,
See also
246,
(1978).
434 U. S.
courts, perceiving
Several
risks,
gone
similar
have
so far as to invalidate
termination
vagueness grounds.
Alsager
statutes on
See,
g.,
e.
Cty.,
v. District Court
Polk
(SD
Supp. 10,
1975),
F.
18-19
Iowa
grounds,
(CA8
aff’d
1976);
Smith,
on other
tasks an uncounseled combine overwhelm I submit profound is a understatement. Faced accusatory adversary— a formal adjudication, with an great investigative the State —that prosecu- commands torial resources, with standards that involve ill-defined no- adequate tions of fault and and with the parenting, inevitable tendency subjective of a court to apply values or to defer *24 to “expertise,” the State’s parent plainly defendant is “ outstripped if he or she without 'the is the assistance ” guiding Gault, hand of counsel.’ In re 387 U. S., quoting Alabama, Powell v. 287 S. 45, (1932). 69 When the parent lacking indigent, easily in- education, and by figures timidated of authority,14 may the imbalance well become insuperable.
The risk of error thus is
parent
severalfold. The
who ac-
tually has achieved the improvement
quality
or
of parenting
the State
would require
be unable
establish this
to
fact.
parent
who has failed in
regards may
these
be unable
to
cause,
demonstrate
absence of
or lack
willfulness,
of agency
diligence
justification.
And errors of fact or
law
may go
State’s case
unchallenged and uncorrected.15 Given
Schetky,
14See
Angell, Morrison,
Sack,
Study
&
A
Parents Who Fail:
of 51 Cases of
Rights,
Termination of Parental
18 J. Am. Acad. Child
Psych. 366,
(1979) (citing
backgrounds).
minimal educational
See
Page,
also
1977)
Davis v.
Supp.
(SD
(uncounseled
F.
Fla.
parent,
ignorant
governing
law,
substantive
“was little more than a
spectator
adjudicatory [dependency] proceeding,”
silently
in the
and “sat
through
hearing
most of the
antagonizing
workers”),
.
fearful of
..
the social
part,
(CA5
(en banc).
aff’d in
1981)
c the interests claimed considered, final factor to providing tip against appointed not the scale State, do position in a hardly in this context. The State informality it of a rehabilitative here that seeks assert parent for the would into which counsel proceeding educative At- edge. the Assistant unwelcome adversarial As inject an Court, of North declared before this torney General Carolina made a deci- termination, moves for “has once the State should home. go the child cannot home and go sion that family.” obligation try restore that longer It has an no Tr. of 40. Arg. Oral legitimate assert a in- may, properly
The State does, physical well-being and emotional promoting terest in children. But is not ter- minor served its any responsible rights concerned, parent. minating “protect- North is committed to Indeed, because Carolina *25 ing] unnecessary children from the severance of a rela- all tionship biological legal parents,” (2), 7A-289.22 § goals needlessly spites State its own articulated when “the (study of termination actions in 73 North Carolina coun- state-initiated ties; prevailed proceedings by counsel, parent represented in where 5.5% proceedings unrepresented). and in where 0.15% hardly dispositive, these statistics are the Court's While do not share ante, view, 29-30, 5, they evi- “unilluminating.” at n. are Since no study parent dence in either indicates that the defendant who can retain culpable appears unrepre- is less or is offered counsel than the one who sented, against it seems reasonable to infer that a sizable number of cases parents solely end in unrepresented termination because of absence of the ante, addition, acknowledges, as the Court counsel. at the n. perceive judges preside hearings over termination who them as less fair parent is without counsel. when the Illinois, Stanley the parent the from child.
separates” S., at 653.16 cost avoiding the State also has an interest right a might accompany administrative inconvenience acknowledges, the But, the appointed to counsel. as Court hardly to over- significant enough interest fiscal “is State’s Ante, important as those here.” private come interests as for one, The State’s concern indeed is a limited 28. financial may well to those right appointed be restricted the by the State. proceedings that are instituted termination problem no arise with Moreover, line-drawing would difficult due types proceedings. to other of civil The instant respect analysis nature process takes full account fundamental parental permanency of the threatened interest, gross em- imbalance between the resources deprivation, ployed by prosecuting State and those available of fur- relatively insubstantial cost indigent parent, any An nishing counsel. absence of one of these factors -here, might yield where, different result.17 But liberty loss of is and absolute, threatened severe the State’s clearly the cost in- role is so adversarial and punitive, relatively no slight, refusing there is sound for volved basis recognize right requisite process to counsel as a of due the State proceeding initiated to terminate rights.
II A analysis too, markedly mine; it, The Court’s similar Eldridge, Mathews analyzes the three listed in factors de- too, private procedure finds the it, weighty, by the State coun- fraught error, with risks and the vised ante, The Court this view. apparently See 27-28. shares example, Thus, adjudicating involvement the com State’s *26 custody parents peting proceeding claims for child between in a divorce obligate provide indigent parents. need not it to counsel for tervailing governmental Yet, insubstantial. rather than follow this balancing process logical conclusion, to its abruptly the pulls Court back announces a that defend- parent case-by-case ant must await a determination of his or her need for counsel. Because the three factors “will not always be distributed,” so reasons the the Court, Constitu- tion should not be “requir[e] appointment read in every parental Ante, proceeding.” termination 31 (emphasis added). conclusion only illogical, This is not it also marks sharp departure process but from the due analysis consistently applied flexibility heretofore. case-by-case due process, requires has con- held, Court contexts, sideration of different decisionmaking differ- litigants ent analyzing within a context. In the nature given private governmental stake, along interests at with the risk of not limited error, past Court has itself to the particular addressing case at hand. after Instead, generic the three factors context raised elements particular rule that case, the Court then has formulated a application similarly has general situated cases. Goldberg precedents own make this clear. Court’s Kelly, desperate that economic con- Court found experienced by recipients
ditions as a class distin- welfare from benefits. recipients governmental them other guished con- S., Eldridge, at 264. In Mathews v. the Court 397 U. disability recipients the needs of Social Security cluded that existing comparable moreover, urgency, and, were not medical pretermination procedures, based on written largely more and even- assessments, likely objective were to be entitlement typical than welfare decisions. handed translating S.,U. at 339-345. These cases established rules process requiring pretermina- welfare context as due in the dispensing requirement tion but hearing showing particular context. A wel- disability benefit that a dis- recipient fare had to additional or that a income, access ability recipient’s eligibility testimony turned on rather than *27 not in an reports, exception would result medical written reasoned in norms. Court required procedural from the Eldridge: may be a factor veracity sure, credibility
“To be and But cases. disability assessment in some the ultimate by risk procedural shaped rules are the process due applied truth-finding process inherent error the Id., at exceptions.” rare generality the not the cases, 344. norms are
There sound reasons Procedural are for this. every case, to ensure be done in justice devised unchecked protect litigants against unpredictable and to and governmental experience with deci- Through adverse action. that re- time, emerge sions situations over lessons varied minimally flect general understanding a as what is neces- sary expressed to assure fair Such are best play. lessons general application predictability have which guarantees uniformity society’s our that underlie commitment to the By rule of law. endorsing, retrospective review instead, trial record of particular parent, each defendant today very Court undermines the rationale on which this concept general fairness is based.18 case-by-case
Moreover, approach advanced Court dangers itself entails serious for the at stake interests general justice. administration of The Court as sumes that a review record will establish whether defendant, proceeding counsel, without has suffered an un Gagnon Scarpelli,
18The Court’s
(1973),
decision in
Assuming that hoc ad review were ensure adequate to it is to be fairness, likely costly. both And cumbersome and because such rights implicated review involves constitutional by necessarily state adjudications, will result in increased federal interference in proceedings. state im- The Court’s ante, plication to the by see is belied the contrary, 33, Brady. in the aftermath of Betts experience Court’s Court postverdict was confronted with innumerable chal- to the lenges particular expended fairness of much trials, course, case-by-case today Of approach announced Court places required court, an even burden on the heavier trial which will be legal representation might to determine advance what difference make. judge obligated documentary A trial will be to examine the State’s hearing testimonial evidence well before the informed so to reach an adequate decision about the need in time preparation for counsel to allow parent’s of the case. judges.20 of state evaluating performance
energy in effect processes in the criminal This of intervention level himself Frankfurter, speaking prompted Justice States performing was complain others, two Court Uveges Pennsylvania, bureau.” “super-legal-aid as a I fear that (dissenting opinion). (1948) “super family into a may transform the Court today decision court.”
B ap- painfully problem inadequate representation Lassiter, Abby parent present Petitioner, in the case. Gail remove mother of children. The State moved to five grounds fifth care on the child, William, petitioner’s from Although received notice of parental neglect. petitioner proceeding, appear hearing the removal did not she May District represented. and was not the State’s adjudicated neglected Court under North Caro- William to custody lina him in Durham placed law and County Department peti- Services. some point, Social At *29 evidently arranged tioner for the other four children to re- by side with and be cared for Mrs. Las- mother, her Lucille They under grandmother’s siter. remain their care at present time. notes, ante, 22, petitioner
As the Court
at
not
did
visit
July
William after
1976. She was unable to do
for she
so,
imprisoned
second-degree
was
as a result of her conviction for
In December
she
in prison
murder.
was visited
a
County
Durham
social worker
advised her
the De-
who
that
partment planned
rights
to
her
with re-
terminate
immediately
spect
expressed
to William. Petitioner
strong
20
Quicksall
g.,
Michigan,
Uveges
e.
See,
(1950);
v.
v.
“THE All Do want COURT: she— About About what “[PETITIONER]: what?
“THE this COURT: About child. Oh, yes.
“[PETITIONER]: right. “THE COURT: All Go ahead. you say— only thing I know is that when “[PETITIONER]: testify. you “THE I COURT: don’t want Okay. “[PETITIONER]: you to cross-examine whether want “THE COURT: want know any questions. or ask only thing I Well, you know, the Yes, I want to. “[PETITIONER]: my part I know— that I know about it. know about I want to you know. talking “THE COURT: I am not about what you any questions if want to ask her or not. know About that? “[PETITIONER]: pro- you the nature “THE COURT: Yes. Do understand ceeding? Yes. “[PETITIONER]: to the you have any rights
“THE COURT: And that is to terminate necessary. place adoption, if child and it for Yes, I know. “[PETITIONER]: her about you ask any questions want to “THE Are there COURT: she has testified to? what Yes.
“[PETITIONER]: right. “THE COURT: AH Go ahead. you going to are why you think I want to know “[PETITIONER]: he knows my mother my He knows child over to a foster home? turn all of us. her and he knows all of us. He knows “THE is he? COURT: Who My son, William.
“[PETITIONER]: care in foster been Lassiter, your son has Ms. WORKER]: “[SOCIAL time— May of and since that since about it anything know yeah I didn’t Yeah, “[PETITIONER]: either.” *31 the stand,
took and that she wanted live testified William to grandmother his and siblings. questioned his The judge for a brief period, expressed open her and one disbelief at her The final was the grandmother. answers.23 witness Attorney County She judge questioned Both and the her. having expressed unwillingness to take into denied William home, vehemently her contradicted social worker’s complained statement had the Department that she about daughter’s neglect of the child.24 Petitioner not told her was so.25 question that she and did not do could mother, 58-60, The made County Attorney closing argument, at id., 23 Id., at 30: you your complaint Did mother filed on know that
“[THE COURT]: day May, 8th 1975 . . . . ? No, complaint. “A: she file ’cause she said didn’t no ghost up That was some came here filed who “[THE COURT]: suppose.” I judge questioning by County,Attorney: saying concluded his to the Id., right, Odom, you
“All what at Mr. see can do.” 36. following court, This reaction from produced latter denial id., at 55:
“Q day you Mangum respondent]: Did on the 8th tell Ms. [from daughter hospital having May, your in the when was William in the no that she left the children cold house with heat? No, sir, no, sir, unh, no, unh
“A: sir. That’s a lie.
“[PETITIONER]: No, no, my right sir, knows, God “A: sir. I’ll raise hand God Somebody saying else that. told that. die you that it me “THE COURT: I wish wouldn’t talk like scares you.” same room with judge Lassiter; subse had initiated the examination Mrs. answers, exasperation rambling quality quently expressed he with the of her id., at 52: you question what, just stop
“THE I tell let’s all this. You COURT: questions. day his be here all her, please. answer Just We’ll subject wasting skipping mean, just time, I from one we are we’re rate. another— [RESPONDENT]; BY ...” EXAMINATION “CROSS any if had re- petitioner she final asked then judge Id., right.” think its “Yes. don’t responded: She marks. 61. Judge District Court perhaps It is understandable *32 exasperation conducting in this difficulty and experienced difficulty exasperation hearing. are both But of entirely, to lack large measure, in if attributable attorney might have experienced An translated counsel. emotion into several substantive reaction and petitioner’s failing charged arguments. petitioner State legal to arrange plan” for her child’s future or a “constructive to Department’s inter “positive response” demonstrate a petitioner been had defense have that vention. A would grand for arranged properly for the child to be cared his to demon mother, might and evidence have been adduced of of the other adequacy grandmother’s care strate Valdez, Ing., re 63, e. 29 2d P. 2d See, children. Utah 504 Anonymous, Commissioner v. (1973); 1372 33 Conn. Welfare People, Supp. (1976); A. 2d 250 v. 137 100, 364 Diernfeld Moore (1958). 323 P. 2d6 628 generally Colo. See 238, Cleveland, id., East S., (plurality 431 U. 504 opinion); J.). Department’s of own (opinion 508-510 Brennan, family’s “diligence” promoting in integrity put was never significant during hearing, yet surely light issue petitioner’s See, incarceration and lack access to her child. g., Resources, Dept. e. Weaver v. Roanoke Human 220 Va. H., In re Christopher 921, 2d 697 929, 692, (1980); 265 E. In Kimberly I., re 2d 1292, (Okla. 577 P. 1294 1978); App. 2d 831, 833, (1979). Div. S. 2d Finally, N. Y. petitioner’s the asserted willfulness of lack concern could obviously been she physically have attacked since was unable custody regain perhaps meaningful even to receive visits during 21 In re preceding months the action. Cf. Dinsmore, App. 36 N. C. E. (1978). 245 S. 2d 386
III exemplary plainly Petitioner has not led the life she were ac parent. citizen or model It well be that if result in competent legal corded the ultimate representation, the issue before particular case would be the same. But she was petitioner’s character; the Court is not it is whether given be heard when the State meaningful opportunity rights.26 light absolutely to terminate moved experience and of the unpursued defense, avenues of virtually underwent at the incredi petitioner hearing, find today pro her termination ble the Court’s conclusion fundamentally conclusion, fair. To reach ceeding was inability ignores simply the Court obvious the defendant’s speak effectively herself, a factor the Court has found to highly significant Gagnon Scarpelli, cases. See past *33 S., Uveges Pennsylvania, S., 411 at 335 at 441- U. v. U. 791; Illinois, (1948). See also 442; 640, Bute v. 333 U. S. 677 Jones, id., S., opinion); Vitek 445 at 496-497 (plurality v. U. I (opinion J.). ignore 498 of that at am unable Powell, I the of factor; record, believe that the and norms instead, 26Unfortunately, the Court does not confine itself to issue at hand. By going case, ante, 20-21, 1, to outside the official record of this at n. petitioner’s second-degree and recite details murder conviction unearth Lassiter, unpublished appellate opinion, State 33 set forth in an state see v. (1977); (e) App. 405, (3), 2d 30 N. Rules of N. C. 235 S. E. Rule C. Procedure, 4A), the Appellate (Supp. 1979 to Court N. C. Gen. vol. Stat. petitioner’s fit relevant to apparently believes it has contributed evidence petitioner’s mother as well. parent, perhaps to the fitness of ness as a and rights permitting parental to be statutes But while some States retain conviction, is not parent’s North Carolina upon criminal terminated a 1979). Note, (Supp. See among them. N. C. Stat. See Gen. §7A-289.32 Binds, Yale L. J. Preserving Parenting: the Tie On and Prisoners likely encourage on is (1978). such evidence 1408, 1409-1410 Reliance judicial pro judgments subjective that an adversarial value the kind of ceeding meant to avoid. is compel holding a ac- majority, acknowledged
fairness similarly situated. petitioner persons counsel to cording ironic on Finally, deem it not a little Court day grants, putative an process grounds, indigent on due very in the in- grouping state-paid claim for blood tests father’s opportunity him dis- according meaningful a terest Streater, ante, Little v. p. but in paternity, 1, his prove rejects, process grounds, indigent due an case on present State state-paid when the legal mother’s claim for assistance child her in termination away to take her own from seeks Streater, re- Little v. Court stresses proceeding. “compelling upon “procedural fairness,” lies need determination,” in- accuracy in the the “not [the] the State error, indigent’s considerable” risk of “fae[ing] ante, 14, adversary,” fairness,” 13, an “fundamental 16. inconsistency here, There some measure tension and. I can the Court it seems me. attribute the distinction only to between it views presumed draws difference what Streater, Little “civil” v. “quasi-criminal,” as the and the ante, 10. the factual context of the de- Given two cases today, significance presumed cided of that difference eludes me. Dulles, Trop society,” “a
Ours, maturing supposedly, v. S. (1958) (plurality opinion), 356 U. and our notion process due our “perhaps, concept the least frozen is, Illinois, law.” 20 (1956) (opinion Griffin Con If Boddie concurring judgment). Court *34 necticut, (1971), perceive U. S. 371 able to con was as stitutionally necessary the judicial access required resources marriage private surely to dissolve a of parties, the behest perceive similarly necessary it should as requested access to legal resources when the State itself seeks to dissolve family personal parent intimate and bonds between child. open “floodgates” It I that, will suspect, the Court constitutionally fears. On we afford the contrary, cannot upon closure that result in imposes this sad case us all. I respectfully dissent.
Justice Stevens, dissenting.
A woman’s may misconduct cause the State to take formal steps liberty. may her deprive her of The State incar deprive her for cerate a fixed term also permanently of her freedom to her child. former associate with pure is a deprivation liberty; deprivation the latter of liberty both statutory rights of in property, because heritance relationship may as well as the be de natural stroyed. Although deprivations serious, both are often the deprivation rights be more grievous will plain the two. The language Fourteenth Amendment deprivations commands that both must accompanied by process due of law.* stating appears
Without so Court treat explicitly, though merely case deprivation of an involved in property worthy less than a protection person’s liberty. analysis employed in Mathews v. Eld ridge, in which the Court balanced the costs procedural benefits of different mechanisms for allocat ing among a finite of material resources quantity competing claimants, is an appropriate determining method of what process property is due on cases. Court its Meeting own terms, Justice Blackmun demonstrates that the Math Eldridge analysis ews v. requires appointment of coun I sel in this type agree conclusion, case. with his but step. would take one further my opinion supporting the reasons the conclusion that
the Due Process of the Fourteenth en- Clause Amendment part: provides
*The Fourteenth Amendment deprive any person life, liberty, . . or property, “No State shall . with- process out due of law ...” *35 representation the defendant a criminal case
titles kind. The apply equal force to a case weighing one of fairness, issue is fundamental not of Accordingly, costs pecuniary against benefits. societal relatively insignificant the costs to the State were not even if just great pros- were as costs of providing but rather judges, defense counsel to ensure ecutors, the fairness proceedings, criminal would the same in this reach result For the category liberty cases. value our protecting deprivation by process from the State without due law priceless.