Petitioners Reply Brief — Lassiter v. Department of Social Servs. of Durham Cty.

No. 79-6423

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

Abby Galt Lassiter, Petitioner,

Vv.

DEPARTMENT OF SOCIAL SERVICES

OF DURHAM COUNTY, NorRTH CAROLINA,

Respondent.

On Writ Of Certiorari To The

North Carolina Court Of Appeals

REPLY BRIEF FOR THE PETITIONER

LEOWEN Evans Grecory C. MALHoIT

NortH CentRAt LEGAL (Member of the Supreme Court Bar)

ASSISTANCE PROGRAM East CENTRAL COMMUNITY LEGAL

Post Office Box 2101 SERVICES

106 West Parrish Street 127 West Hargett Street

Durham, North Room 512

Carolina 27702 Raleigh, North Carolina 27601

(919) 688-6396 (919) 828-4647

Rospert L. WALKER JANET MASON

NATIONAL CENTER For Nortu State LEGA SERVICES

Youth Law 27 Hillsboro Street

1663 Mission Street Post Office Box 246

San Francisco, Pittsboro, North Carolina 27312

California 94103 (919) 542-4862

(415) 543-3307

Counsel for Petitioner

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

TS -

oe

TABLE OF CONTENTS

Page

ee Pe 6k 545 0 Saws Hecate sia ce vs cae hee i

WU a aaa gfe dee Oe ea i ne nt oe! oh l

l. THe Writ Or CertiorAri SHOULD Not Be Dismissep As

PE FT I oS aa kbiviewenecncs l

Il. Appenpix C To RESPONDENT'S BRIEF STRONGLY Supports PE-

TITIONER’S CONTENTION THAT WITHOUT REPRESENTATION By

CouNSEL THE Risk Or ERRONEOUS OR INAPPROPRIATE TERMI-

NATIONS OF PARENTAL RIGHTS Is CONSIDERABLY ENHANCED. 5

III. TERMINATION OF PARENTAL RIGHTS PROCEEDINGS Do

DirectLy IMPLICATE FUNDAMENTAL RIGHTS WorTHY OF

THe HiGHest DEGREE OF CONSTITUTIONAL PROTECTION. .... 8

IV. Tue Ricut OF AN INDIGENT PARENT To Court-APPOINTED

CounseL IN A TERMINATION OF PARENTAL RIGHTS CASE

Must Be Given RetROAcTIvVE Errect, AT LEAST WHEN

THERE Has Not BEEN A ComPLETED ADOPTION. .......... 11

RNRRII Ga ned teem un We re Caled es, 16

TABLE OF AUTHORITIES

CASES: Page

Aetna Insurance Co. v. Kennedy, 301 U.S. 389 (1937) ........ 2

Matter of Anderson, 589 P.2d 957 (Idaho 1979) .............. 15

Argersinger v. Hamlin, 407 U.S. 25 (1972)... 0... cc cc eee ee 13

Armstrong v. Manzo, 380 U.S. 54 (1965) 2.0... ccc ce ees 15

Arsenault v. Commonwealth of Massachusetts, 393 U.S. 5

oS | BITRE CAEP EUR Dek ray OF Fat) FIR hen et or pia Are Rete 13

In re Ella 8., 30 N.Y .2d 352, 285 N.E.2d 288 (1972) ......... 8

Barry v. Cinctanad, 444 U.S. ZO UIST) oo co eee ce ccecees 13

Blankenship v. Blankenship, 267 S.E.2d 751 (W.Va. 1980) ..... 15

Brady v. United States, 397 U.S. 742 (1970) .... 0.0... cece ee 2

Brown v. Louisiana, 100 S.Ct. 2214 (1980) ............. 0000 12,13

Bruton v. United States, 391 U.S. 123 (1968) ............0005 12

Table of Authorities Continued

Page

Burch v. Louisiana, 441 U.S. 130 (1979) ........... 0.000005. 12

Carnley v. Cochran, 369 U.S. 506 (1962) ......... 0. cee ees a3

Coleman v. Alabama, 399 U.S. 1 (1970) «2.0.2... 06... cee eee 3,5

Davis v. Page, 442 F.Supp. 258 (S.D. Fla. 1977), affd. 618 F.2d

374 (Sth Cir. 1980), rehear. en banc granted ............. 4

Destefano v. Woods, 392 U.S. 631 (1968) .............06005. 1]

Douglas v. California, 372 U.S. 353 (1963) «0... ee ee eee 7

Duncan vy. Louisiana, 391 U.S. 145 (1968) .............0085. 1]

Falls Sales Co. v. Board of Transportation, 292 N.C. 437, 233

es Dre ie at ad ned ws bawue ae

Fuentes v. Shevin, 407 U.S. 67 (1972) 2.0... ccc cece

eM UEC UMOOD, aS ia bawakis'c vcccs cwscctvdves

Gideon v. Wainwright, 372 U.S. 335 (1963) 2.0... cee ee 13

Hamilton v. Alabama, 368 U.S. 52 (1961)... 2... eee eee eee 14

Hankerson v. North Carolina, 432 U.S. 233) 2... 0... eee 12

In re Adoption of R.1., 312 A.2d 601 (S.Ct. of Pa. 1973) ....... 8

Jackson v. Denno, 378 U.S. 368 (1964) «0... eee 12

Jenkins v. Georgia, 418 U.S. 153 (1974) 2.0... 3

Johnson v. Zerbst, 304 U.S. 458 (1938) 2... 2. eee eee 2,4

Kitchens v. Smith, 401 U.S. 847 (1971) 2... cc cee ee 3, 13

Linkletter v. Walker, 381 U.S. 618 (1965) ............. 11, 12, 14

In re Welfare of Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974) 8

Mapp v. Ohio, 367 U.S. 643 (1961) 1... .. cece cece eee eee es 11

McConnell v. Rhay, 393 U.S. 2 (1968) .... 0... ce cee eee 13, 14

McNeal v. Culver, 365 U.S. 109 (1961)... ee eee eee 3

Mempa v. Rhay, 389 U.S. 128 (1967) 20... cece eee eee 14

Mullaney v. Wilbur, 421 U.S. 684 (1975) 2... cee 12

Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio,

Is EO a'r cath vie eared pads whe bus doe eckA 2

rr

Table of Authorities Continued

Page

Roberts v. Russell, 392 U.S. 293 CUSGB). oi cc ccisceccsaceves 12

Schrum v. Bolding, 539 S.W.2d 415 (Ark. 1976) ............. 15

Small v. Andrews, 20 Or. App. 6, 530 P.2d 540 (1975) ........ 15

Smith v. Organization of Foster Families, 431 U.S. 818 (1977) .. 10

Stanley v. Illinois, 405 U.S. 645 (1972)... 11

Stovall v. Denno, 368 U.S. 293 GUOBTD: okie sh iccciin isis dass’ 12

United States v. United States Coin and Currency, 401 U.S. 715

CAGF ED «0:0 00:6 4:0:y 00 wp mc eee 13

Uveges v. Pennsylvania, 335 U.S. 437 (1948) ......... 0c u ee 4

Ivan V. v. City of New York, 407 U.S. 203 (1972) ............ 12

White v. Maryland, 373 U.S. 59 (1963) ...... 00... cee eee 13, 14

Whitney v. California, 274 U.S. 357 (1927) oo. eee 5

Williams v. U.S., 401 U.S. 646 (1971) on. cece eee 13

Jn ve Winship, 397'U.S. 280 COSTS as cis Swenee eins eee 12

STATUTES:

North Carolina Gen. Stat.

Lh Ee 7,10, 11

Le on), ee te 9

Lh, er 9

LL, eB 9

LL nL TEE TS EN 9

LL \y BP er Ss 9, 10

OTHER AUTHORITIES:

2 Corpus Juris Secundum Adoptions §§ 113-18 (1972) ....... 15

Arango, Planning for Legal Services Projects, Concepts, Experi-

ences, and Issues, 12 Clearinghouse Rev. 163 (July 1978) . 7

G. Bellow, Legal Aid in the United States, 14 Clearinghouse Rev.

3ST Realy S9GG .... sfc ikn- ce bene eaaia bee eae 6

IJA-ABA Juvenile Justice Standards Project, Standards Relat-

ing to Counsel for Private Parties (1980) .... 0... 0.0000 3

iV

Table of Authorities Continued

Page

E. Metzner, Joo Many Clients, Too Little Time (N.L.A.D.A.

OE CoM Se aa oA vce me eek hha edue 7

Mnookin, Child-Custody Adjudication: Judicial Functions in the

Face of Indeterminacy, XXX\1X Law and Contemporary

Problems 226 (Summer 1975) ........ 0.0. e eee eee 10

Wald, State Intervention on Behalf of ‘Neglected’ Children: Stand-

ards for Removal of Children from their Homes, Monitoring

the Status of Children in Foster Care, and Termination of

Parental Rights, 28 Stan. L. Rev. 623 (April 1976) ....... 10

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

AbsbBy GAIL LASSITER, Petitioner,

V.

DEPARTMENT OF SOCIAL SERVICES

OF DURHAM County, NorTH CAROLINA,

Respondent.

On Writ Of Certiorari To The

North Carolina Court Of Appeals

REPLY BRIEF FOR THE PETITIONER

en

ARGUMENT ,

ee

I. The Writ of Certiorari Should Not Be Dismissed as

Improvidently Granted.

In his brief! respondent notes that petitioner did not ask the

trial court to appoint an attorney on her behalf and, on this

single factual predicate, belatedly asserts? that certiorari was

improvidently granted. Although the precise contours of re-

spondent’s contention are unclear, he appears to be making

two separate arguments. First, he seems to suggest that by

failing to ask the trial court to appoint counsel on her behalf,

petitioner has effectively waived that right. Second, he asserts

that in the absence of an outright request to appoint counsel at

' Brief for Respondent, pp. 7-10.

2 Respondent never raised this issue either in his answer to the Petition

for Discretionary Review to the North Carolina Supreme Court (J.A. 26-7)

or in his Brief in Opposition to Petitioner's Petition for a Writ of Certiorari

in this Court. Nor has he at any time filed a motion in this Court to dismiss

certiorari as improvidently granted.

the trial level, petitioner’s constitutional entitlement to court-

appointed counsel is not properly before this Court. Petitioner

will discuss each of these assertions seriatim and demonstrate

that each is without merit.

This Court has frequently stated that it will, ‘*... not

presume acquiesence in the loss of fundamental rights.’’ Ohio

Bell Telephone Co. v. Public Utilities Commission of Ohio, 301

U.S. 292, 307 (1937). In the civil, as well as in the criminal

area, this Court has repeatedly indicated that courts must in-

dulge every reasonable presumption against waivers of funda-

mental rights. Fuentes v. Shevin, 407 U.S. 67, n. 31, 94 (1972);

Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393 (1937). As

this Court stated in Brady v. United States, 397 U.S. 742

(1970),

Waivers of constitutional rights not only must be volun-

tary but must be knowing, intelligent acts done with suffi-

cient awareness of the relevant circumstances and likely

consequences.

Id. at 748.

Applying these principles in the context of an accused’s

right to counsel, this Court has consistently refused to

presume waiver of the right to counsel based upon a defend-

ant’s failure to request appointment of counsel. Over forty

years ago this Court stated:

The purpose of the constitutional guaranty of a right to

counsel is to protect an accused from conviction resulting

from his own ignorance of his legal and constitutional

rights, and the guaranty would be nullified by a deter-

mination that an accused’s ignorant failure to claim his

rights removes the protection of the Constitution.

Johnson v. Zerbst, 304 U.S. 458, 465 (1938).

Carnley v. Cochran, 369 U.S. 506 (1962), is analogous to the

case at bench in that petitioner therein never requested ap-

pointment of counsel, nor did the trial court offer to appoint

counsel on his behalf. In Carnley this Court rejected the argu-

ment that petitioner had implicitly waived his right to counsel

in language which applies equally to the case at bench.

But it is settled that where the assistance of counse! is a

constitutional requisite, the right to be furnished counsel

does not depend on a request.

* * * *

Presuming waiver from a silent record is impermissible.

The record must show, or there must be an allegation and

evidence which shows, that an accused was offered

counsel but intelligently and understandably rejected the

offer. Anything less is not wavier.

Id. at 513, 516.

Similarly, in Kitchens v. Smith, 401 U.S. 847 (1971), although

petitioner had not testified at the habeas corpus hearing that

he had wanted a lawyer, had asked for one, or had made any

effort to find one, this Court relied on Carnley v. Cochran, su-

pra, in holding that petitioner had not waived his right to

counsel.

The basic principle which emerges from the above-cited au-

thority is that a defendant’s failure to ask the court to appoint

counsel to represent him is not an effective waiver of his right

to counsel in the absence of a clear showing that counsel was

offered to him, and that he intelligently and understandably

rejected the offer. By parity of reasoning, unless a parent who

is the subject of a termination of parental rights proceeding is

offered the assistance of counsel and voluntarily, intelligently,

and competently waives her right to an attorney, counsel must

be appointed to represent her if she is indigent.} See also In re

Gault, 387 U.S. 1, 41-2 (1967); McNeal v. Culver, 365 U.S. 109

3} The right of indigent parents to court-appointed counsel in a termination

case necessarily entails the right to court-appointed counsel at all ‘‘critical’’

stages of the proceeding. Accord, Coleman v. Alabama, 399 U.S. 1 (1970).

This would include all pre-adjudication and dispositional hearings. See IJA-

ABA Juvenile Justice Standards Project, Standards Relating to Counsel for

Private Parties, Commentary to Standard 2.3(b) (1980). In order to avoid

4

n.l, 111 (1961); Uveges v. Pennsylvania, 335 U.S. 437, 441

(1948).

The record in the present case indicates that at no point

prior to the termination hearing did the judge, or anyone else,

advise petitioner of her right to counsel or offer to appoint

counsel on her behalf.* Without being advised of her absolute

right to be represented by counsel, petitioner’s ignorance of

possible sources of legal representation cannot be translated

into an intentional relinquishment of a known right. Jehnson

v. Zerbst, 304 U.S. 458, 464 (1938).

Respondent’s assertion that petitioner did not properly

raise her entitlement to counsel below must also be rejected as

specious. In complying with Rule 10 of the North Carolina

Rules of Appellate Procedure, petitioner filed as an assign-

ment of error in the district court the court’s failure to appoint

counsel to represent her as required under the Fourteenth

Amendment to the United States Constitution. (J.A. 15) Peti-

tioner briefed this issue in the North Carolina Court of Ap-

peals. The Court of Appeals reached the merits of the case and

specifically found that it is not compelled, **. . . to hold that

appointment of counsel for indigent parents is constitutionally

uninformed or unknowing waivers of the right to counsel, and to provide

counsel with adequate time to prepare his case, petitioner urges this Court

to adopt the holdings of the District Court and the Court of Appeals in Davis

v. Page, 442 F.Supp. 258 (S.D. Fla. 1977), afd. 618 F.2d 374 (Sth Cir.

1980), rehear. en banc granted, that parents be advised of their right to

counsel, if indigent, immediately upon filing of the petition, and that no

waiver of the right to coynsel will be effective unless the trial judge has

determined, on the record, that such waiver is knowing and intelligent. 442

F.Supp. at 265; 618 F.2d at 386.

4 After the court sustained the petition, and petitioner indicated that she

wished to appeal, the court advised her that if she could not afford an

attorney, she might seek an attorney from the North Central Legal Assist-

ance Program. (RT 62) However, the court never advised her of the

possibility of obtaining counsel from the North Central Legal Assistance

Program, or from any other legal services office, prior to the termination of

parental rights hearing.

5

mandated.”’ (J.A. 23) Likewise, both petitioner’s Notice of

Appeal and Petition to the Supreme Court of North Carolina

for Discretionary Review were based on the trial court’s al-

leged constitutional error in failing to appoint counsel to rep-

resent petitioner. (J.A. 24-5)

Under these circumstances, it is difficult to comprehend the

basis for respondent’s contention that the constitutional issue

of petitioner’s right to counsel was not properly preserved.

When a state appellate court assumes or holds that a federal

question was properly raised, and proceeds to consider it on

the merits, this Court will presume that the issue is properly

before it. Coleman v. Alabama, 377 U.S. 129, 133 (1967);

Whitney v. California, 274 U.S. 357, 360-61 (1927). In fact,

even when an appellant has failed to argue a constitutional is-

sue below, this Court will rule upon the issue as long as the

state supreme court has reached and decided it. Jenkins v.

Georgia, 418 U.S. 153 (1974); see Raley v. Ohio, 360 U.S. 423,

436 (1959).

In the case at bench the North Carolina Court of Appeals

held that petitioner did not possess a constitutionally guaran-

teed right to counsel in a termination of parental rights pro-

ceeding. Since the constitutional issue was properly raised in

the papers before the North Carolina Supreme Court, it must

be presumed that the North Carolina Supreme Court reached

the merits of petitioner’s constitutional claim in dismissing

her appeal. See Falls Sales Co. v. Board of Transportation, 292

N.C. 437, 233 S.E.2d 569 (1977). Since the constitutional

question was raised in both state appellate courts, and is the

subject of one state court appellate opinion which reached the

merits of petitioner’s contention, the issue is properly before

this Court.

II. Appendix C To Respondent’s Brief Strongly Supports Peti-

tioner’s Contention That Without Representation by Counsel

the Risk of Erroneous or Inappropriate Terminations of

Parental Rights is Considerably Enhanced.

Respondent has annexed to his brief as Appendix C the

6

questions and a compilation of the answers from a survey

which he claims was mailed to each of the one hundred

counties in North Carolina during November of 1980. Al-

though the practice of bolstering one’s case by surveys con-

ducted after the granting of certiorari seems, at the least, high-

ly questionable, ° petitioner does not object to use of the ques-

tionnaire results in this case because they clearly support the

reasons presented in Petitioner’s Brief why appointment of

counsel for indigent parents is essential to vouchsafe due

process.

The survey results indicate that out of 768 termination

cases over approximately a three year period, parents were

represented by counsel in 120 cases (15.6%). The actual ques-

tionnaire responses, which are only summarized in Appendix

C,* demonstrate that in some counties counsel is actually ap-

pointed by the court, whereas in other counties parents are

able to secure assistance from the local legal services or legal

aid programs. The questionnaire results, therefore, confirm

the capriciousness of North Carolina’s present policy concern-

ing appointment of counsel in termination cases. In the ma-

jority of counties counsel is simply not available to represent

indigent parents. A parent’s ability to gain representation will

turn upon the wholly fortuitous circumstance of whether she

resides in one of the few counties where a judge is willing to

appoint counsel to represent her, or whether the local legal

services program is willing and able to represent her and she is

made aware of this source of possible representation.’ A

5 The questionnaire results are obviously not part of the record on appeal,

nor has respondent urged that this Court could properly take judicial notice

of the results of such a questionnaire.

6 Respondent mailed the individual responses to counsel for petitioner

and amici on December 9, 1980. Brief for Respondent, Appendix C at 27a.

7 There are an insufficient number of legal services attorneys to meet all

of the legal needs of their clients. G. Bellow, Legal Aid in the United States,

14 Clearinghouse Rev. 337 (July 1980). See Brief for Amicus Curiae, Na-

tional Legal Aid and Defender Association, 23-4. As a result, most legal

7

parent’s ability to safeguard her fundamental right to family

integrity should not depend upon the fortuity of local practice

and availability of counsel.

Respondent notes that only seven of 127 cases (5.5%)

where parents were represented by counsel resulted in dis-

missal of petitions. From these figures he infers that it is

unlikely that many of the 640 petitions sustained where

parents were unrepresented by counsel would have been dis-

missed if attorneys had been provided to these parents. *

One problem with respondent’s conclusion is that it is based

upon insufficient statistical information. As respondent con-

cedes in his brief,? many counties reported that most of their

termination proceedings were uncontested — being brought

against absent fathers or parents who failed to respond. Unless

we can be certain — which is not indicated in the question-

naire results — that counsel is never appointed for a parent in

an uncontested case, it is impossible to determine the percent-

age of contested cases where parents, represented by counsel,

were able to prevail. '°

services programs have adopted methods for reduction of intake by —for ex-

ample—refusing to handle certain types of cases (e.g. family law matters),

or by limiting the number of cases they will handle, or the hours or days of

the week during which they will interview new clients. See, e.g. Arango,

Planning for Legal Services Projects: Concepts, Experiences, and Issues, 12

Clearinghouse Rev. 163 (July 1978); E. Metzner, Too Many Clients, Too Lit-

tle Time (N.L.A.D.A. 1974).

8 Respondent’s Brief, pp. 38-9.

9 Id. at 39.

'0 Moreover, respondent assumes that all cases where termination peti-

tions were sustained are correctly decided. Since North Carolina law does

not guarantee the right of an indigent parent to be represented by counsel

on appeal, nor even the right to be notified of her right to appeal an adverse

ruling [see N.C. Gen. Stat. §7A-289.34 (Cum. Supp. 1979)], it is reasonable

to assume that many errors at the trial level remain undetected. Cf. Douglas

v. California, 372 U.S. 353 (1963). With provision of counsel, one would an-

ticipate an increase in the number of appeals, and a concomitant improve-

ment in the quality of procedural regularity at the trial level.

8

Accepting arguendo the accuracy and utility of the figures in

Appendix C to Respondent’s Brief, these Statistics, in any

event, confirm the necessity for appointing counsel for in-

digent parents. In seven out of the eight cases where petitions

were not sustained (87.5%), parents were represented by

counsel. In only 120 of the 760 cases where petitions were sus-

tained (15.8%) were parents represented by counsel. More

significantly, perhaps, while petitions were dismissed in 5.5%

of the cases where parents were represented by counsel (7 of

127), petitions were dismissed in only 0.15% of the cases

where parents were unrepresented by counsel (1 out of 641).

Statistically, a parent had a thirty-six times greater chance of

prevailing in a termination proceeding if she was represented

by counsel than if she was unrepresented. '' The statistical dis-

crepancy in the results where parents are, and are not, repre-

sented by counsel confirms the crucial role which attorneys

can, and do, play in North Carolina in preventing unfounded

and inappropriate terminations of parental rights.

III. Termination of Parental Rights Proceedings Do Directly

Implicate Fundamental Rights Worthy of the Highest Degree

of Constitutional Protection.

Respondent acknowledges that a parent’s fundamental

right to the care and custody of her children is directly impli-

cated in an abuse, neglect, or dependency proceeding. How-

1! It is also interesting to note that only five of the seventy-three counties

responding to respondent’s survey reported that termination proceedings

are ever brought to court by a social services agency which is unrepresented

by counsel. It is possible that counse! was not sought by the social services

agencies in those five counties primarily in uncontested cases, although this

is not entirely clear from the survey answers. In any event, the prevailing

practice throughout almost all counties in North Carolina is for the county

department of social services to be represented by counsel in termination

cases—thereby exacerbating the gross inherent imbalance of expertise be-

tween the governmental litigant and the unrepresented parents. See, In re

Ella B., 30 N.Y.2d 352, 285 N.E.2d 288, 290 (1972); In re Welfare of Lus-

cier, 84 Wash.2d 135, 524 P.2d 906, 908 (1974); In re Adoption of R.I., 312

A.2d 601, 602-03 (S.Ct. of Pa. 1973).

=»

9

ever, respondent asserts that once a juvenile court has re-

moved custody of a child from a parent in an abuse or neglect

case, the parent’s interest in her child becomes qualified, con-

ditional, and less worthy of full due process protection. '”

Respondent’s argument misconceives crucial differences

between neglect and abuse cases and proceedings to terminate

parental rights. Under North Carolina law the primary goals of

abuse and neglect proceedings are to protect the child while

preserving the child’s ties to his parents to the maximum,

feasible extent. N.C. Gen. Stat. §§ 7A-516, 7A-544, 7A-586,

7A-647, 7A-657. As discussed in the Brief of Amicus Curiae,

the State of North Carolina, '? many abuse or neglect proceed-

ings result in the child being left in his parents’ home under

the supervision of the department of social services. If custody

is removed, the social services department must work towards

restoration of the child with his parents. Only if family

reunification should prove unfeasible will termination of

parental rights be attempted. /d. at 13-16. '4

Thus, it is misleading to equate the parents’ custodial rights

at stake in a dependency or neglect proceeding with parental

rights which are at peril in a proceeding to terminate parental

rights. If an abuse or neglect petition is sustained, it may — or

may not — lead to a temporary removal of the child from his

parents’ custody. However, even when custody is removed,

the juvenile court is mandated to conduct a review hearing

within six months of the initial dispositional order to find out

!2 Brief for Respondent, p. 33.

13 Jd., pp. 13-17.

14**When the relationships essential to the child’s well-being and self-

worth are threatened or destroyed, first and continuing efforts should be

directed toward increasing or restoring family unity... . In order to permit a

child’s early return to his family, it is necessary to try to increase the

strengths of his family. Permanent separation of a child from his family

should be determined as quickly and soundly as possible.’’ 1 Family Serv-

ices Manual, c. IV, 1200 (Rev. 75), cited in Brief for the State of North

Carolina, Amicus Curiae, n. 43 at 16.

10

what services have been offered to reunite the family and

whether family reunification is possible. N.C. Gen. Stat. §7A-

657.

The purpose of a termination of parental rights proceeding

is to sever entirely the parent-child relationship. An order ter-

minating parental rights, ‘‘... completely and permanently

terminates all rights and obligations of the parent to the child

and of the child to the parent’’ except for the child’s right of

inheritance which is terminated at such time as the child is

adopted. N.C. Gen. Stat. §7A-289.33. While abuse or neglect

proceedings involve infringements upon parents’ custodial

rights, in termination of parental rights cases, ‘the parent

loses not only physical custody but also the right to ever

regain custody.’ Wald, State Intervention on Behalf of ‘Ne-

glected’ Children: Standards for Removal of Children from their

Homes, Monitoring the Status of Children in Foster Care, and

Termination of Parental Rights, 28 Stan. L. Rev. 623, 633 (April

1976). In addition, termination extinguishes other aspects of

the parent-child relationship which may be of significant con-

cern to both parent and child. These include the parent’s duty

to support the child, the right of both parents an“ child to visit

each other, the parent’s right to authorize medical care and to

withhold consent to adoption, and — at least in some jurisdic-

tions — the child’s right to inherit intestate from his parents.

Mnookin, Child-Custody Adjudication: Judicial Functions in the

Face of Indeterminacy, XXX1X Law and Contemporary Prob-

lems 226, 245 (Summer 1975).'5

In Smith v. Organization of Foster Families, 431 U.S. 816

(1977), this Court recognized that a parent’s liberty interest in

family integrity derives from three sources: blood relation-

1S Other significant rights may also be affected by an order terminating

parental rights. In the case at bench, for example, the termination order

effectively abolishes the child’s right to maintain a relationship with his

grandmother and siblings. In neglect and abuse cases, visitation by parents,

siblings, and grandparents is usually permitted unless contrary to the best

interests of the child.

7?

1]

ship, state-law sanction, and intrinsic human rights. /d. at 845-

46. Whatever the source of the constitutionally protected in-

terest may be, it is evident that an order terminating parental

rights — unlike a neglect adjudication — obliterates the legal

basis for the very existence of the parent-child relationship. '

Hence, respondent is simply wrong in suggesting that parental

rights implicated in termination proceedings are qualified or

conditional. Since the continued existence of the parent-child

relationship is at stake, the highest degree of constitutional

protection is compelled. See, e.g., Stanley v. Illinois, 405 U.S.

645 (1972).

IV. The Right of an Indigent Parent to Court-Appointed Counsel

in a Termination of Parental Rights Case Must Be Given Ret-

roactive Effect, At Least When There Has Not Been a Com-

pleted Adoption.

Amicus Curiae, the State of North Carolina, argues that if

the Court holds that indigent parents in termination of paren-

tal rights cases do enjoy a constitutional right to court-ap-

pointed counsel, the Court’s decision should be given pro-

spective application only. '’ This Court has generally preferred

not to consider the retroactivity of its decisions overruling

prior precedent, or creating newly fashioned rules of pro-

cedure, until confronted by cases which squarely raise the

retrospective application of the new rule or decision. Compare

Mapp v. Ohio, 367 U.S. 643 (1961), with Linkletter v. Walker,

381 U.S. 618 (1965); Duncan v, Louisiana, 391 U.S. 145

(1968), with Destefano v. Woods, 392 U.S. 631 (1968). Nev-

ertheless, should this Court decide to reach the retroactivity

'6[t should also be recognized that under North Carolina law physical

abuse or neglect can be a basis for terminating parental rights, and there is

no statutory requirement of a prior adjudication in a neglect or abuse pro-

ceeding. N.C. Gen. Stat. §7A-289.31(2). It is difficult to understand the

rationale of respondent’s position that a parent should be entitled to repre-

sentation in an abuse proceeding but not in a termination of parental rights

case based upon allegations of abuse.

'’ Brief of Amicus Curiae, pp. 23-5.

nn me

12

.

issue in this case, this Court’s case law strongly supports ret-

roactive application of a decision to require court-appointed

counsel for indigent parents in termination of parental rights

proceedings.

In arguing in favor of prospective application of any decision

requiring provision of counsel, Amicus assumes that the crite-

ria articulated in Linkletter v. Walker, 381 U.S. 618 (1965), and

frequently reiterated by this Court in subsequent decisions, '*

mM provide the applicable guidelines. Amicus analyzes the present

case in light of these threefold criteria and concludes that a

right to appointed counsel for indigent parents should be lim-

ited to cases brought in futuro.

The problem with Amicus’ analysis is that it fails to recog-

nize that this Court has applied a different standard in deter-

mining the retroactivity of new constitutional rulings which go

to the integrity of the fact-finding process. Where a new con-

stitutional rule is primarily concerned with improving the fair-

ness of the adjudicatory process, this Court has consistently

given such rulings retroactive effect. '° These decisions recog-

nize that the Linkletter-Stovall criteria are simply inapplicable

In Stoval v. Denno, 388 U.S. 293 (1967), this Court summarized the

Linkletter criteria for determining the retroactivity of new constitutional

standards as, ‘‘(a) the purpose to be served by the new standards, (b) the

“ extent of the reliance by law enforcement authorities on the old standards,

) and (c) the effect on the administration of justice of a retroactive application

of the new standards.”’ /d. at 297.

19 See, e.g. Brown v. Louisiana, 100 S.Ct. 2214 (1980) [Burch v. Louisiana,

441 U.S. 130 (1979), holding unconstitutional the Louisiana practice of

sanctioning convictions for non-petty offenses by a non-unanimous jury of

six, applied retroactively); Hankerson v. North Carolina, 432 U.S. 233 (1977)

[Mullaney v. Wilbur, 421 U.S. 684 (1975), requiring the state to establish all

elements of a criminal offense beyond a reasonable doubt applied retroac-

tively]; /van V. v. City of New York, 407 U.S. 203 (1972) [In re Winship, 397

U.S. 258 (1972), requiring standard of proof beyond a reasonable doubt in

juvenile delinquency trial, held retroactive]; Roberts v. Russell, 392 U.S. 293

(1968) [giving retroactive effect to Bruton v. United States, 391 U.S. 123

(1968)]; Jackson v. Denno, 378 U.S. 368 (1964).

13

when the decision in question impacts upon the fundamental

fairness of the trial. See, e.g., Brown v. Louisiana, supra, at

2223; United States v. United States Coin and Currency, 401 U.S.

715, 723 (1971); McConnell v. Rhay, 393 U.S. 2, 3-4 (1968).

As this Court stated in Williams v. U.S., 401 U.S. 646 (1971):

Where the major purpose of a new constitutional doctrine

is to overcome an aspect of the criminal trial that substan-

tially impairs its truth-finding function and so raises

serious questions about the accuracy of guilty verdicts in

past trials, the new rule has been given complete retroac-

tive effect. [Citations omitted.] Neither good-faith

reliance by state or federal authorities on prior constitu-

tional law or accepted practice, nor severe impact on the

administration of justice has sufficed to require prospec-

tive application in these circumstances.

Id. at 653.

Perhaps no other constitutional guarantee has been so

widely recognized as crucial to the accurate development of

the facts at trial as the right to counsel. Without representation

by counsel, the likelihood of error—either through the failure

to exclude inadmissible or prejudicial evidence, to elicit bias

or inaccuracies On cross-examination, or as a result of the ac-

cused’s inability to marshall and introduce evidence suppor-

tive of his defense—is unacceptably high.” For these reasons

this Court has repeatedly ruled that constitutional decisions

extending the right to counsel to previously unrecognized

stages of the criminal process must be accorded retroactive

effect. ?!

20 These arguments were developed more extensively in Petitioner's

Brief, pp. 27-36.

2! Berry v. Cincinnati, 414 U.S. 29 (1973) [Argersingr v. Hamlin, 407 U.S.

25 (1972), extending the right to counsel to misdemeanor offenses for

which the accused may be imprisoned, applied retroactively]; Kitchens v.

Smith, 401 U.S. 847 (1971) [recognizing that Gideon v. Wainwright, 372 U.S.

335 (1963), is retroactive]; Arsenault v. Commonwealth of Massachusetts,

393 U.S. 5 (1968) | White v. Maryland, 373 U.S. 59 (1963), holding that

14

Since criminal law decisions extending the right to counsel

to arraignments, preliminary hearings, or sentencing are ap-

plied retroactively, a fortiori the right to counsel at the

adjudicatory or trial stage of a termination of parental rights

proceeding must be given retroactive effect. For the reasons

discussed in Petitioner’s Brief, representation by counsel is as

critical to the full and unfettered development of the facts at a

termination of parental rights hearing as at a criminal trial.

Under the previously cited precedent holding retroactive the

right to counsel and other due process protections which safe-

guard the fact-finding process, a parent’s right to counsel in a

termination of parental rights proceeding must similarly be ac-

corded retrospective effect.

However, Amicus also argues that a parent’s right to counsel

should not be given retroactive application because the impact

of such a ruling would be to upset numerous finalized adop-

tions.2? Petitioner must acknowledge that where there has

been a completed adoption, a significant competing interest

exists which would impact upon a decision in favor of, or

against, retroactivity: namely, the interest of the child and the

adoptive parents in maintaining the autonomy of the adoptive

family. However, since respondent has advised the Court that

no adoption has been undertaken in the case at bench, * it is

clearly unnecessary for the Court to reach the issue of the

there is a right to counsel when an accused pleads guilty at a preliminary

hearing, must be applied retroactively]; McConnell v. Rhay, 393 U.S. 2

(1968) [court’s decision in Mempa v. Rhay, 389 U.S. 128 (1967) —that there

is a right to counsel at a deferred sentence proceeding—given retroactive

effect]; White v. Maryland, 373 U.S. 59 (1963) [right to counsel at arraign-

ment hearing established in Hamilton v. Alabama, 368 U.S. 52 (1961), ap-

plied retroactively).

22 In Linkletter v. Walker, 381 U.S. 618 (1965), this Court noted that no

distinction has been drawn in retroactivity litigation between civil and crimi-

nal cases. /d. at 627.

23 Brief for Amicus Curiae, The State of North Carolina, p. 25.

24 Brief for Respondent, n. 22, p. 36.

15

retroactivity of a parent’s right to counsel in those cases where

there has been a finalized adoption. *5

In Armstrong v. Manzo, 380 U.S. 54 (1965), this Court va-

cated an adoption decree because there was a due process

violation in failing to give notice of the adoption proceeding to

the child’s father. State courts have generally been reluctant

to vacate adoptions in the absence of fraud, undue influence,

lack of consent or notice. See generally 2 C.J.S. Adoptions

§§113-18 (1972). Where there has been a due process viola-

tion, such as denial of the right to notice of the adoption pro-

ceeding, some state courts have vacated finalized adoptions.

See, e.g., Blankenship v. Blankenship, 267 S.E.2d 751 (W.Va.

1980); Matter of Anderson, 589 P.2d 957 (Idaho 1979); Schrum

v. Bolding, 539 S.W.2d 415 (Ark. 1976).

Petitioner believes that it would be singularly inappropriate,

in the context of the present case, for this Court to decide the

retroactive effect on completed adoptions of any decision in

favor of parents’ right to counsel in termination of parental

rights proceedings. No statistical information has been

adduced by Amicus as to the number of adoptions which

would be affected by a ruling in favor of retroactivity. As pre-

viously noted, this issue is not presented in the case at bench

since petitioner’s son has not been adopted. Moreover, in this

sensitive area it may be best to proceed with caution and avoid

an absolute rule. There are a multitude of factors which can

militate more or less strongly in favor of insulating the adop-

~ tion from attack. * It may be that in determining whether to

25 Of Course, a decision to give retroactive effect to the parent’s constitu-

* tional right to counsel does not necessarily mean that children affected by

the Court’s decision will be removed from their foster parents. The parents

will simply be entitled to new termination of parental rights hearings at

which they will have the right to be represented by counsel.

6 For example, courts are much more likely to permit parents to revoke

consent to adoptions within a few weeks or months of giving consent than

where the adoption has been finalized for years. See, e.g., Matter of Ander-

son, 99 Idaho 805, 589 P.2d 957 (1979); Small v. Andrews, 20 Or. App. 6,

530 P.2d 540 (1975).

16

vacate completed adoptions because the parents were

unrepresented by counsel in prior termination of parental

rights proceedings, state courts will have to consider the

impact of upsetting such adoptions on a case-by-case basis.

Where—as here—there has been no finalized adoption, the

governing principle is well-established in this Court’s jurispru-

dence. If this Court reaches the issue, maintenance of the in-

tegrity of the fact-finding process compels retroactive applica-

tion of a decision in favor of affording indigent parents the

right to counsel in proceedings to terminate their parental

rights.

CONCLUSION

For the above-stated reasons, and the reasons contained in

Petitioner’s Brief, the judgment and order of the North

Carolina Court of Appeals must be reversed and remanded

with directions to grant petitioner a new hearing at which she

shall be furnished court-appointed counsel.

Respectfully submitted,

LEOWEN EVANS

Grecory C. MALHOIT

JANET MASON

RoBert L. WALKER

Attorneys for Petitioner