Matter of Rich

SIMMS, Justice,

concurring in part, dissenting in part:

I concur in the judgment of the Court. This appellant was. denied no federal or state constitutional rights in these proceedings. I have serious reservations concerning the dicta in the majority opinion, however, and I must dissent generally to adopting any “rule” on transcripts in this action and specifically to that “rule” which the majority adopts.

The issue of an indigent parent’s right to a free transcript of a proceeding terminating his or her parental rights is NOT before us. Appellant did NOT request a transcript from that hearing. He requested a transcript only of the initial proceeding to determine whether his children were dependent and neglected and where their temporary custody should be placed. That request was denied for his failure to comply with existing rules of appellate procedure. He made no request for a transcript of the subsequent proceeding to terminate his parental rights.

The Court’s attempt to answer a question which is not at issue is inappropriate and the answer is dicta. We respectfully submit that the answer is also wrong.

Inasmuch as the majority has decided to pronounce in this case a “rule” on cost free transcripts for indigent parents appealing from adverse judgments in termination of parental rights proceedings, I will discuss here why that rule is constitutionally defective.

The majority’s analysis of which rights must be afforded an indigent parent is based on a simplistic division of “civil” versus “criminal” actions. The majority reasons that criminal defendants are entitled to many protections and civil litigants, not so many. From this starting point, the majority easily concludes that because this is a “civil” action, an indigent parent can be forced to bear burdens which cannot constitutionally rest on a criminal defendant seeking a transcript without cost.

This analysis is superficial and leads the majority to an erroneous result. As the Supreme Court of the United States has advised us on numerous occasions, labels are not important. It is the substance of the rights in jeopardy which we must examine, not the label which a State places upon its conduct or its statute. 1 Termination of parental rights is not the same thing as personal injury litigation or an action on an overdue account, where a private litigant battles out private disputes against his “non-public adversary.” The majority’s refusal to recognize that difference here will lead to innumerable problems in the future for families, as well as our courts.

Unlike the majority, I find the constitutional “landmarks” are more than adequate to guide us to a correct resolution of the question.

Before proceeding to that point however, I find it necessary to discuss certain federal decisions concerning transcripts for indigent criminal defendants. The discussion of same by the majority is so extremely abbreviated that some may be unable to glean the importance of those rights at issue here which the majority denies to future appealing indigent parents.

I.

Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 , 55 A.L.R.2d 1055 (1956), was the Court’s first free transcript case. In holding that both due process and equal protection were violated when indigent defendants were denied cost free transcripts which would allow them to obtain full appellate review of nonconstitutional errors, the Court established the now familiar principle that “[tjhere can be no equal justice *1255 where the kind of trial a man gets depends on the amount of money he has.” 351 U.S. at 19 , 76 S.Ct. at 591 . “Destitute defendants” the Court held, “must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” 351 U.S. at 19 , 76 S.Ct. at 591 .

The principle of Griffin has been steadily and consistently applied by the Court to protect the rights of the poor. It has been applied to right to counsel, 2 and filing fees, 3 as well as numerous other transcript cases. 4

The transcript progeny of Griffin make clear the following points which are relevant to the issue decided by the majority opinion:

1. A state need not furnish a complete verbatim transcript in every case but “[i]n all cases the duty of the state is to provide the indigent as adequate and effective an appellate review as that given appellants with funds.” Draper v. Washington, supra, 372 U.S. 487 , 83 S.Ct. 774 . (Emphasis added)

2. “In terms of a trial record, the State must afford the indigent a ‘record of sufficient completeness’ to permit proper consideration of [his] claims.” Draper, 372 U.S. at 499 , 83 S.Ct. at (quoting Coppedge v. United States, 369 U.S. 438, 446 , 82 S.Ct. 917, 921 , 8 L.Ed.2d 21 (1962)).

3. “Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Draper, 372 U.S. 495 , 83 S.Ct. at 779 . (Emphasis added)

4. The defendant is not required to make a showing of need tailored to the facts of a particular case. The value of a transcript is recognized. See, Britt v. North Carolina, 404 U.S. 226 , 92 S.Ct. 431 , 30 L.Ed.2d 400 (1971).

5. “We emphasize, however, that the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way. Moreover, where the' grounds of appeal, * * * make out a colorable need for a complete transcript, the burden is on the state to show that only a portion of the transcript or an ‘alternative’ will suffice for an effective appeal on those grounds.” Mayer v. City of Chicago, 404 U.S. 189, 195-196 , 92 S.Ct. 410, 415 , 30 L.Ed.2d 372 (1971). (Emphasis added)

6. The Constitution tolerates no distinction between felony and nonfelony offenses. In Williams v. Oklahoma City, supra, the Court rejected an argument “that an indigent person, convicted for a violation of a city ordinance, quasi criminal in nature, and often referred to as a petty offense, is [not] entitled to a case-made or transcript at city expense in order to perfect an appeal.” 395 U.S. at 459, 89 S.Ct. at 1819.

7. Likewise, the differences in sentences that may be imposed do not lessen the invidiousness of discrimination against an indigent. Where confinement is not an issue and payment of a fine is the only punishment for violation of a nonfelony city ordinance, Griffin applies and the State’s fiscal interest is “irrelevant”. The Court explained in Mayer that is because:

“Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made *1256 available only to those who can pay is not erased by any differences in the sentences that may be imposed.” 404 at 196-197, 92 S.Ct. at 416.

It should be of great interest to know that the defendant in Mayer was sentenced to pay two $250 fines.

The majority’s summary of Britt v. North Carolina, supra, as supporting the notion that “it is not error to deny a cost-free transcript in a criminal prosecution when the availability of an adequate alternative has been shown” misapprehends the point of that decision and overlooks the fact that it was explicitly decided upon its unique factual situation. The transcript sought there was of petitioner’s first trial which ended in a mistrial. The following “narrow circumstances of this case,” 404 U.S. 228 , 92 S.Ct. 431 , led the Court to decide that Griffin did not require furnishing a complete transcript before the second trial: both trials took place in a small town, before the same judge, with the same counsel and court reporter, and if counsel had requested it, the reporter would have read him his notes of the mistrial at any time. Although holding no error in rejecting the claim under these circumstances, and where petitioner had conceded availability of an informal alternative “substantially equivalent” to- a transcript, the Court emphasized again that:

“Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” 404 U.S. 228 , 92 S.Ct. 434 . And that “[a] defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.” 404 U.S. 230 , 92 S.Ct. 435 . (Emphasis added)

There is no merit to the majority’s position that the Supreme Court has given us no “fixed landmarks” which guide our application of transcript principles to an appeal from a judgment terminating parental rights.

II

Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 , involved indigent plaintiffs seeking access to divorce courts without payments of costs. In deciding that Connecticut’s refusal to admit the impoverished plaintiffs to its courts was a denial of due process, the Supreme Court repeatedly emphasized two points: (1) The' fundamental importance of family relationship interests under our Constitution, and (2) The State’s monopolization of the means for dissolution of the marriage relationship. Parties to a marriage cannot divorce themselves. Because of this, the Court concluded that the resort of the plaintiffs to the judicial process was “no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court. For both groups, this process is not only the paramount dispute-settlement technique, but, in fact, the only available one.” (Emphasis added) It was in view of this that the Court found the issues “properly to be resolved in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum.” 401 U.S. 376 , 377, 91 S.Ct. 785 .

Of especial significance to the question the majority seeks to answer here is the fact that Boddie was decided under the rationale of Griffin v. Illinois, supra, the watershed of transcript cases. The Court stated:

“We are thus left to evaluate the State’s asserted interest in its fee and cost requirements as a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois. * * * In Griffin it was the requirement of a transcript beyond the means of the indigent that blocked access to the judicial process. While in Griffin the transcript could be waived as a convenient but not necessary predicate to court access, here the State invariably imposes the costs as a measure of allocating its judicial resources. Surely, then, the rationale of Griffin covers this case.” At 382-383, 91 S.Ct. at 788 .

*1257 Let us examine then the nature of the rights at issue and the nature and amount of governmental involvement in an action to terminate parental rights.

Placed in jeopardy by the State of Oklahoma are the biological and emotional ties of parent and child. Clearly these interests involve fundamental constitutional rights. 5

The interests of a parent in the companionship, care, custody and management of his or her children must “come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic interests.” (citations omitted) Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 . The “liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in ‘this Nation’s history and tradition’.” (citations omitted) Smith v. Organization of Foster Families, 431 U.S. 816 , 97 S.Ct. 2094 , 53 L.Ed.2d 14 . 6

The governmental involvement in termination proceedings far exceeds that which exists in marriage regulation and dissolution. 7 First, of course, the State does not involuntarily divorce people; at least one partner to the marriage must affirmatively seek such relief.

The State does, on the other hand, prosecute termination actions, sometimes involuntarily terminating parental rights against the wishes of both parents and children. There may be no other proceeding where the governmental involvement, both qualitatively and quantitatively, is so great; for in termination actions the State is involved at all stages and on all sides. In any termination action the role of the State (separate and apart from the judicial function) may include any or all of the following: investigation of the family; initiation of the petition; temporary custodial care and/or other services for the children; educational, health or other services for the family; prosecution of the action; separate representation of the parents and/or children; defense on appeal; custodial care of the children; adoption investigation; and representation at adoption proceedings. This list is not meant to be exhaustive, only illustrative.

The difference between those actions which involve fundamental rights of marriage and family subject to great governmental control and those actions which involve lesser interests with fewer governmental controls, has been consistently recognized by the Supreme Court.

In United States v. Kras, 409 U.S. 434 , 93 S.Ct. 631 , 34 L.Ed.2d 626 (1973), the Court discussed at length the comparison between the government’s role in marriage regulation and in private commercial relation *1258 ships, and held that due process was not denied an indigent when filing fees were charged as a condition to obtaining a discharge in bankruptcy. The Court found that Boddie did not control as that denial to the judicial forum had touched directly on “the marital relationship and on associational interests ... of that relationship”, whereas being relieved of debt burdens does not rise to the same constitutional level. Neither does governmental control reach the level of exclusivity in private commercial relationships that it does in marriage regulation; private negotiation is possible as is the expiration of statutes of limitations. For equal protection purposes, bankruptcy legislation falls into the area of economics and social welfare, requiring only a rational justification rather than the compelling governmental interest required before marriage — a fundamental interest— may be regulated.

The lesser constitutional significance of economic and social welfare interests as compared to the more fundamental interests of marriage was again recognized by the Supreme Court in Ortwein v. Schwab, 410 U.S. 656 , 93 S.Ct. 1172 , 85 L.Ed.2d 572 (1973), where the Court held that the equal protection clause is not violated by a statutory appellate filing fee for an adverse welfare decision, although special rights to appeal in forma pauperis are given in criminal areas, civil cases that result in loss of liberty and termination of parental rights. The Court found Kras, not Boddie , controlled and that the fee was rationally justified and not arbitrary or capricious.

Given the fundamental rights involved in a termination proceeding and the overwhelming governmental involvement, it is erroneous for the majority to place on indigent appealing parents the burdens of particularizing their need for transcripts and proving that alternatives are not available.

These are not acceptable burdens in a proceeding which threatens rights of such magnitude. These were unacceptable burdens in Mayer where the defendant faced only payment of two $250 fines.

Surely no one believes that our Constitution offers fewer protections against governmental intrusion to parents and children than to individuals paying a municipal fine.

The appellant was denied no substantial rights. He was given every opportunity for fair and just hearing and consideration of his defense. He received the full panoply of procedural due process protections, 8 and there is no reason to address questions not raised by this appeal. I have strong misgivings about the posture the Court assumes in doing so.

I am authorized to state that Justice Doo-lin joins with me in the views expressed herein.

. See, e. g., Application of Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970): Giacco v. State of Pennsylvania, 382 U.S. 399 , 86 S.Ct. 518 , 15 L.Ed.2d 447 (1966); Smith v. Bennett, 365 U.S. 708 , 81 S.Ct. 895 , 6 L.Ed.2d 39 (1961).

. Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963).

. Burns v. Ohio, 360 U.S. 352 , 79 S.Ct. 1164 , 3 L.Ed.2d 1209 (1959); Smith v. Bennett, supra, Note 1.

. See, e. g., Roberts v. LaVallee, 389 U.S. 40 , 88 S.Ct. 194 , 19 L.Ed.2d 41 (1967); Williams v. Oklahoma City, 395 U.S. 458 , 89 S.Ct. 1818 , 23 L.Ed.2d 440 (1969); Long v. District Court of Iowa, 385 U.S. 192 , 87 S.Ct. 362 , 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487 , 83 S.Ct. 774 , 9 L.Ed.2d 899 (1963).

. See, e. g., Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923); Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925); Skinner v. Oklahoma, 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942); May v. Anderson, 345 U.S. 528 , 73 S.Ct. 840 , 97 L.Ed. 1221 (1953); Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965); Cleveland Bd. of Education v. LeFleur, 414 U.S. 632 , 94 S.Ct. 791 , 39 L.Ed.2d 52 (1974); Armstrong v. Manzo, 380 U.S. 545 , 85 S.Ct. 1187 , 14 L.Ed.2d 62 (1965); Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972).

. The majority’s reliance on Smith as somehow supporting its puzzling position that “the full shield of safeguards” does not apply to “parental rights’ litigation” is misleading. Smith was not an action concerning parental rights, but rather rights of foster parents whose relationships with children had its source in contractual arrangements with the State. One of the major points of Smith is that the interest of such a foster parent is not as great as the interest of a parent. “Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.” 97 S.Ct. at 2111 .

.As is occasionally the case, this termination proceeding was initiated by private individuals rather than an employee of a state agency. The majority implies that this fact somehow changes the nature of the proceeding and lessens the governmental involvement in the involuntary cessation of the family relationship. Termination of parental rights is, of course, state action whether the initiating party is public or private.

. Matter of Chad S., Okl., 580 P.2d 983 (1978).