Frase v. Barnhart

Concurring opinion by

CATHELL, J. in which BELL, C.J. and ELDRIDGE, J. join.

I concur with the majority in respect to the general result it reaches. In respect to the appealability issue, however, although I agree that the matters are appealable, I do so on the basis that what occurred here was a change in the conditions of custody and was, therefore, immediately appealable pursuant to the provisions of Courts and Judicial Proceedings Article, Section 12-303(3)(x).

I strongly disagree with the majority’s refusal to address the primary issue presented to us — in my view the most certiorari-worthy issue in the case.

There are many attributes that contribute to the making of a good judge. They include honesty and integrity, intellect, scholarliness, hard work, attention to detail, proper temperament, diligence and thick skin, amongst others. It has been my experience since I have been on this Court, that all of my colleagues are amply imbued with these positive judicial characteristics. In my view, there is an even more important quality that all judges should strive to achieve — decisiveness. Judges decide. It is the very essence of what we do. And it can be argued that it is the most important element of a judge’s role.

The majority declines to address an issue I believe to be properly presented that goes to the very center of the American constitutional, and extra-constitutional promises — equality under the law. I am fully aware that there may be serious *130 concerns as to the reaction of the other branches of government, of the organized Bar (and other members of the profession) and of the people, in respect to any decision this court might reach in addressing this most important question: do the poor receive equal treatment in a matter concerning the most basic of fundamental, and constitutional, rights — the matter of the custody, visitation, and control of children by their parents? Rather than answer, or attempt to answer it, the question is avoided by a majority of the Court.

It is always easiest to decline to address controversial issues. It is, perhaps, the safest thing to do, even for courts. But the avoiding of such issues is best left to the political processes of the other branches of government. It is our branch of government, the judiciary, under the express and implied doctrine of the separation of powers, to which the toughest and most difficult decisions are delegated. It is our primary role to ensure that the fundamental constitutional rights, which are reserved to the people, are protected. One of the most important roles of the judiciary is to see that the laws equally protect all people — the poor as well as the wealthy. Cicero, in his De Re Publica De Legibus, I, xxxii, 49, (as translated by Keyes) raised questions, one of which, with the majority’s decision not to address it in this case, remains partially unanswered today. As relevant here he stated:

“Therefore, since law is the bond which unites the civic association, and the justice enforced by law is the same for all, by what justice can an association of citizens be held together when there is no equality among the citizens? For if we cannot agree to equalize men’s wealth, and equality of innate ability is impossible, the legal rights at least of those who are citizens of the same commonwealth ought to be equal. For what is a State except an association or partnership in justice?”

In the consideration of whether counsel should be provided in cases involving a significant interference with, or loss of, the right to parent, the words of the late President Lyndon B. Johnson, even though spoken in a much different context, nonetheless convey an important message:

*131 “We seek not just freedom but opportunity. We seek not just legal equity, but human ability. Not just equality as a right and a theory but equality as a fact and equality as a result.”

Address, Howard University Commencement Exercises, June 4, 1965.

This Court has very recently considered the matter of the importance of the constitutional right of a parent — to parent. We noted in In Re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 669-70 , 796 A.2d 778, 780 (2002):

“Certain fundamental rights are protected under the Constitutions. Among those rights is the right to child rearing, i.e., parenting. Supreme Court case law has consistently reaffirmed parental rights.

“We recently stated in Boswell v. Boswell that:

‘A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. See Wisconsin v. Yoder; Stanley v. Illinois[ 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972)] (discussing the right of parents to raise their children); Prince v. Massachusetts[ 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944)] (observing that “the custody, care, and nurture of the child reside first in the parents”); Skinner v. Okla homa[ 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942)] (stating the right to rear a child is encompassed within a parent’s “basic civil rights”). . . . ’

“In accordance with the Supreme Court, Maryland has declared that a parent’s interest in raising a child is a fundamental right that cannot be taken away unless clearly justified.” [Citations omitted.]

See also In re Mark M., 365 Md. 687, 705 , 782 A.2d 332, 342-43 (2001).

Recently, in a case in which the issue of counsel was not present, the United States Supreme Court opined on the *132 importance of the rights of parents to raise their children without interference by non-parents, albeit the Court was addressing a very broad statute that permitted any person to petition for visitation rights. That Court stated, as relevant to the point I now make, that:

“The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’

“The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago ... we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later ... we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained ... that ‘[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ We returned to the subject ... and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’

“... In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

*133 Troxel v. Granville, 530 U.S. 57, 65-66 , 120 S.Ct. 2054, 2059-60 , 147 L.Ed.2d 49, 56-57 (2000) (citations omitted).

I think it can be agreed that the quality of justice received, even in our system, arguably the best system of justice ever conceived, is impacted by the presence or absence, and the quality of, legal representation of the respective parties. I readily understand that it may well be beyond our power to create a perfectly equal system, but, that acknowledged, there is no acceptable reason to avoid doing what we can do, even if it is perceived that what we do may not be well received by other governmental entities that will have to address the impact of our rulings. As Justice Brandeis said in Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520 , 44 S.Ct. 412, 416 , 68 L.Ed. 813, 829 (1924), “if we would guide by the light of reason, we must let our minds be bold.”

Without the willingness to address difficult and divisive issues by courts, there would not be any representation of poor criminal defendants and the public defender systems that have been created would not now exist; many school systems may not have yet been integrated; ‘Jim Crow' would be not only alive, but vigorous, in some areas of our country. Without judges willing to resolve great issues there would be no ‘right of privacy.’ Without the courts’ willingness to assume all of its responsibilities our country, and our state, might well be very different.

It is, in my view, an important function of this Court to answer questions such as is presented in this case — whatever way we answer it. And I believe that we, at the least, should begin the process of considering the matter of ensuring equal access to justice by determining whether, and if applicable, when, legal counsel should be provided for economically deprived parents, who become defendants at the instigation of the State, or of third parties as in this case, and are faced with the prospect of losing the most fundamental and constitutional of rights, the right to parent. By our failure to determine the constitutional limits of the rights, if any at all, of the indigent to provided representation, the issue remains a ‘bouncing ball,’ *134 subject to being bounced back and forth between the legislative, executive, and judicial branches of government, each branch leaving it to the other to address. Until the advocates for provided representation know whether such rights are constitutional in nature in the first instance, and if so, the limits of the constitutional rights, they cannot sufficiently take their case to the other branches of government. It is with this Court, not with the other branches of government, that the duty has evolved under the separation of powers doctrine, to determine constitutional issues. The answers being sought in this Court, whatever the answers may be, cannot be found anywhere else. In my view, we should no longer leave them, and this issue, in limbo.

A member of the criminal milieu of our society is guaranteed and provided counsel. But the majority of the Court today declines to resolve whether parents of low economic means, are entitled to a constitutional right to provided counsel in judicial proceedings which others have initiated in which parents may lose their right to be a full parent to their children. I think, simply, that it is wrong to avoid the issue.

The facts in the present custody related case are not even as egregious as many we see. In many cases a poor, sometimes undereducated and unsophisticated, parent is faced with the full might of the State, an entity that itself seeks to deprive the parent of his or her children. If a poor person is faced with the prospect of going to jail for a minor theft offense, she is provided counsel. Yet, if the same person is forced into court where she is faced with the prospect of losing a child, or losing partial or full parental rights, to the State or to a third party, she is not provided counsel.

While I certainly cannot speak for the individual judges of this Court, it is my belief that there is no judge on this Court that believes in his or her heart or mind, that justice is equal between the poor and the rich — even in the tradition hallowed halls of our appellate courts. Each of us knows, I believe, that an unrepresented parent involved in the appellate process in respect to custody, visitation, or parental termination issues, *135 when opposed by competent counsel for the opposing party (sometimes opposed by an organ of the State with its legions of lawyers), is normally not afforded the equal protection of the laws, i.e., an equal access to justice to which all citizens are entitled — in spite of the efforts of this Court to afford that equality. With the constraints of the adversarial court system, and the prohibitions it (and our cases) place upon judges not to assist either side, the poor, unrepresented parent faced with experienced counsel on the other side is at a great, system-built-in, disadvantage.

I am fully aware that the United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S.Ct. 2158 , 68 L.Ed.2d 640 (1981) (a case involving the State’s attempt to terminate parental rights), over twenty years ago, held that the right to counsel under the federal constitution did not extend beyond the loss of physical liberty, stating:

“The pre-eminent generalization that emerges from this Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation....

“Significantly, as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel....

“In sum, the Court’s precedents speak with one voice about what ‘fundamental fairness’ has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.”

Id. at 25-27 , 101 S.Ct. at 2158-59 , 68 L.Ed.2d at 648-49 .

But, as to the “due process” and “law of the land” provisions contained in the Declaration of Rights of the Maryland Consti *136 tution, we are not constrained by the limitations the United States Supreme Court has appeared to place upon the interpretation of federal constitutional provisions. Even in Lassiter, which limited the federal requirement for provided counsel in civil cases to those cases where the parent’s liberty was at risk, the Supreme Court noted the larger viability of the issue under the constitutions of the states. It noted, approvingly, that approximately 33 states already had provided for counsel for indigent parents in various types of termination proceedings, noting that it was “[m]ost significant [that] 33 States and the District of Columbia provide statutorily for the appointment of counsel in termination cases” and that its holding “in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise.”

Many other states have chosen to address similar issues relating to counsel for indigent parents in custody or termination cases. Many of them, perhaps a majority, have concluded that legal representation is not constitutionally required. As an example, see In the Matter of Ward v. Jones, 303 A.D.2d 844, 846 , 757 N.Y.S.2d 127, 129 (2003) (“[W]e decline the invitation to equate ‘fundamental fairness’ with a constitutional right to the appointment of assigned counsel for all indigent parents seeking visitation with their children”) (alteration added). There are many more state courts that basically ascribe to the Lassiter doctrine that the right to appointed counsel depends upon the possibility of incarceration even in the civil context. And some states have declined to decide the issue, while opining in respect to it.

One of the latter is Brown v. Division of Family Services, 803 A.2d 948 (Del.2002) (a proceeding involving placing children in foster care). There the Supreme Court of Delaware noted:

“When Lassiter v. Department of Social Services was decided twenty years ago, the United States Supreme Court noted that ‘wise public policy ... may require that higher standards be adopted than those minimally tolerable under the [United States] Constitution.’ It then noted that ‘[i]n- *137 formed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but [also] in dependency and neglect proceedings as well.

“Inextricably intertwined with the goal of achieving permanency for children is the issue of legal representation for all parties in child welfare proceedings....

“Consequently, at the present time, the only parties to a dependency and neglect proceeding who are not provided with representation are the indigent parents....

“Today, more than one-half of the states have established a right for indigent parents to be represented by counsel at State expense in dependency and neglect proceedings. That right has been recognized in those states by statutory enactments or as a matter of state constitutional law. It is not mandated by the United States Constitution.”

Id. at 952-55 (footnotes omitted).

In many other states, statutes have been enacted requiring representation for the indigent parent in certain types of cases involving custody. And there are states where the courts in some cases have held that their constitutions require some level of appointed representation for the indigent parent, although most often in respect to termination cases. They include Adoption of Holly, 432 Mass. 680 , 738 N.E.2d 1115 (2000), stating:

“In Department of Pub. Welfare v. J.K.B., [ 379 Mass. 1, 3, 6 , 393 N.E.2d 406, 407, 409 ], ... this court concluded that, under the Fourteenth Amendment to the Constitution of the United States, and art. 10 of the Declaration of Rights of the Massachusetts Constitution, ‘an indigent parent has a constitutional right to court-appointed counsel in a contested proceeding to terminate parental rights.’ Counsel is not necessary when an indigent parent decides not to contest a *138 petition, and to obtain counsel, an indigent parent must ‘timely make his or her decision [whether to contest a petition or to be heard] known to the court.’ “

Id. at 688, 738 N.E.2d at 1121 (alteration added)(emphasis omitted).

In the over twenty years that have elapsed since Lassiter, the various governmental entities that are involved in the matter of custody, visitation and termination have been, as perhaps they should have been, ever more active in seeking to play a greater role in becoming involved in the raising of children. Third parties, such as in this case, have also become more active in seeking custody or visitation in respect to others’ children. In that context, it is especially frightening to me to think that affluent third parties, by reason of the quality of the legal representation their affluence brings them, may be able to simply overwhelm poor parents who cannot afford counsel in a civil adversarial system that is not permitted to fully ensure equality in the presentation of cases.

I think it is also fair to say that some courts and some judges of this state (as well as on occasion social service personnel) have, in the past twenty years or so, become increasingly involved in day-to-day actions relating to the raising of children to the extent that their personal parental practices sometimes appear to have been substituted for the proper supervision and practices of the parents. .

With the increasing frequency with which these issues arise, I am drawn more to the well reasoned dissents in Lassiter, as a guide to how this Court should consider these issues under our State Constitutional provisions in these evolving times. I am particularly accepting of Justice Blaekmun’s statement derived from a previous case in which he noted the Gideon standard: “... reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 36, 101 S.Ct. at 2164 , 68 L.Ed.2d at 655 (J. Blackmun, dissenting) (quoting Gideon v. Wainwright, 372 U.S. 335, 344 , 83 *139 S.Ct. 792, 796 , 9 L.Ed.2d 799, 805 (1963)). The very same reason that a poor person without a lawyer cannot get a fair trial in a criminal case, applies equally in a civil case, especially of the nature of the case at bar. Fairness, logically, I would respectfully suggest, in the adversarial system, cannot be assessed differently in a civil case affecting the fundamental right to parent. A trial is fair or it is not, and the ultimate result, it?., incarceration or loss of parental rights, cannot change the fairness of the process. Once a fundamental and constitutional right is involved, a fair trial should be equally ensured. Justice Blackmun went on to opine:

“The question, then, is whether proceedings in this mold, that relate to a subject so vital, can comport with fundamental fairness when the defendant parent remains unrepresented by counsel....

“At stake here is ‘the interest of a parent in the companionship, care, custody, and management of his or her children.’ This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility....

“... Once an individual interest is deemed sufficiently substantial or fundamental, determining the constitutional necessity of a requested procedural protection requires that we examine the nature of the proceeding — both the risk of error ... and the burdens created by its imposition.

“The Court, of course, acknowledges ... that these tasks ‘may combine to overwhelm an uncounseled parent.’ I submit that this is a profound understatement. Faced with a formal accusatory adjudication, with an adversary — the State — that commands great investigative and prosecutorial resources, with standards that involve ill-defined notions of fault and adequate parenting, and with the inevitable tendency of a court to apply subjective values or to defer to the State’s ‘expertise,’ the defendant parent plainly is outstrip *140 ped if he or she is without the assistance of “ ‘the guiding hand of counsel.” ‘ When the parent is indigent, lacking in education, and easily intimidated by figures of authority, the imbalance may well become insuperable.”

Id. at 37-46, 101 S.Ct. at 2165-69 , 68 L.Ed.2d at 656-62 (citations omitted) (footnote omitted). Justice Stevens, dissenting, stated in part:

“In my opinion the reasons supporting the conclusion that the Due Process Clause of the Fourteenth Amendment entitles the defendant in a criminal case to representation by counsel apply with equal force to a case of this kind. The issue is one of fundamental fairness, not of weighing the pecuniary costs against the societal benefits. Accordingly, even if the costs to the State were not relatively insignificant but rather were just as great as the costs of providing prosecutors, judges, and defense counsel to ensure the fairness of criminal proceedings, I would reach the same result in this category of cases. For the value of protecting our liberty from deprivation by the State without due process of law is priceless.”

Id. at 59-60 , 101 S.Ct. at 2176 , 68 L.Ed.2d at 670 .

To me, the right to fully parent one’s children, without improper interference by third parties or the State, is too important and fundamental a right for the issue before us to be avoided. Also important is that the hearing and trial judges and masters need guidance in respect to this issue involving representation. They need guidance, even if the majority of the Court were to hold that appointed counsel is not necessary in order to afford fundamental fairness.

We should also be realistic. We can decline to address many problems. But, unlike many cases of a lesser nature, this issue will not go away. The parties will not settle this issue on remand. This issue will keep coming back in this case, or other cases, until four judges of this Court vote to resolve it one way or the other. The bullet will have to be bitten. More important, even, is that all participants in the process need to know the answer in respect to the Maryland *141 constitutional issues. So long as this Court declines to resolve it, the advocates for the poor will continue to seek judicial relief, rather than concentrating their efforts with the other branches of government. The poor need a yes or a no.

I am fully aware of the consequences of taking the first step onto the path of a civil Gideon. But the right we are asked to afford in the context of this case, addresses the most fundamental of rights. It is not in the nature of a speeding ticket, a civil violation of a zoning ordinance, a tortious interference with contract, or a breach of contract case. In my view it is much more fundamental, much more important. It is in the nature of the protection of the family. What can be more important? We should all try to imagine how it must feel to be utterly poor and to receive a summons from the hands of a sheriff informing us that we are required to appear in court because either the State or some third party is attempting to terminate our parental rights, or to interfere with them, and we don’t have any money with which to hire a lawyer. The poor face fears without the security of the money that many others have. And it can be terrifying, to realize how helpless you are when others are attempting to take your children from you.

I would reach the third issue. More important I would resolve it by holding that in cases involving the fundamental right of parents to parent their children, especially when the parent is a defendant and not a plaintiff, counsel should be provided for those parents who lack independent means to retain private counsel. Whether there should be a panel that weeds out frivolous cases, whether there should be permanent civil public attorneys, whether courts should have the power to appoint counsel and apportion the costs to specific entities, 11 *142 are for others to resolve, or, perhaps, a matter for this Court to resolve in a different context under our rule making authority and our role as the overseer of our profession.

I would leave the consideration of the issue providing representation in respect to other types of civil matters to the cases that bring those issues before the Court.

Chief Judge BELL and Judge ELDRIDGE join in this concurrence.

. In State of Louisiana in the Interest of A.P., 815 So.2d 115, 118 (La.Ct.App.2002), that court, in a case involving custody issues, noted:

“Louisiana courts have the inherent constitutional authority to order the state, its appropriate subdivision, department, or agency to provide for payment of counsel fees and necessary expenses when necessary for effective representation of indigents. The legislative and executive branches can aid this inherent judicial power, but their *142 acts or failure to act cannot destroy, frustrate, or impede that constitutional authority.”