# Amicus Brief — Lassiter v. Department of Social Servs. of Durham Cty.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 18

## Text

No. 79-6423

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980
ABBY GAIL LASSITER,
Petitioner,
VS.

DEPARTMENT OF SOCIAL SERVICES
OF DURHAM COUNTY, NORTH
CAROLINA,

Respondent.
(IN THE MATTER OF WILLIAM L. LASSITER)

On Writ of Certiorari to the
North Carolina Court of Appeals

ee ek et ee C+

MOTION FOR LEAVE TO FILE
BRIEF AMICUS CURIAE
AND
BRIEF FOR AMICUS CURIAE
NATIONAL LEGAL AID AND
DEF! NDER ASSOCIATION

Donald R. Lundberg

Kenneth J. Falk

Legal Services Organization
of Indiana, Inc.

107 North Pennsylvania Street

Suite 300

Indianapolis, Indiana 46204

317/639-4151

ce ee

November, 1980

Central Publishing Companys Ine Indianapolis IN $6200

INDEX

Page —

MOTION FOR LEAVE TO FILE BRIEF AMICUS
LE Ss bpicaeasins (6Abbad se sopharedue'esneaas ili

TABLE OF AUTHORITIES. .............00eeeeees Vv

BRIEF FOR THE AMICUS CURIAE, NATIONAL
LEGAL AID AND DEFENDER ASSOCIATION 1

INTEREST OF AMICUS CURIAE, NATIONAL
LEGAL AID AND DEFENDER ASSOCIATION 1

SUMMARY OF ARGUMENT ............00eeeeee 2
PP TFTEIBTTE 6 0h. 6% 0 sincitnd coes ong pba vedas ctes cae 4

I. PARENTS’ INTERESTS IN TERMINA-
TION OF PARENTAL RIGHTS PROCEED-
INGS ARE LIBERTY INTERESTS ENTITLED
TO THE HIGHEST PROTECTION UNDER
THE DUE PROCESS CLAUSE ............ 4

Il. THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT REQUIRES
THAT COUNSEL BE APPOINTED AT
PUBLIC EXPENSE TO REPRESENT AN
INDIGENT PARENT IN A TERMINA-
TION OF PARENTAL RIGHTS PROCEED-
BEAD ‘60 ais MR eNine.cae t Cunecesh bi ahag Gon iene 9

III. THERE IS CURRENTLY AN INSUFFICIENT
NUMBER OF FREE COUNSEL AVAILABLE
TO REPRESENT INDIGENT PARENTS
IN TERMINATION OF PARENTAL RIGHTS
PROCEEDINGS WITHOUT JUDICIAL
REE URI LOMIEE oo ccscsucvevccdiccag consent 22

NEE nS 46k vpdogeenscctbvecesonseeteouue 24

>

No. 79-6423

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980
ABBY GAIL LASSITER,
Petitioner,
vs.

DEPARTMENT OF SOCIAL SERVICES
OF DURHAM COUNTY, NORTH
CAROLINA,

Respondent.
(IN THE MATTER OF WILLIAM L. LASSITER)

On Writ of Certiorari to the
North Carolina Court of Appeals

MOTION FOR LEAVE TO FILE
BRIEF AMICUS CURIAE

The National Legal Aid and Defender Association
(hereinafter referred to as “NLADA”) respectfully moves for
leave to file the attached brief amicus curiae in this case.
The consent of the attorney for the petitioner has been
obtained. The consent of the attorney for the respondent
was requested but refused.

PREVIOUS PAGE WAS BLANK |

r%

ey

The interest of NLADA in this case arises from
NLADA’s unique role vis-a-vis the interests of indigent
persons. NLADA is a not-for-profit organization whose
primary purpose is to assist in providing effective legal
services to persons unable to retain counsel because of their
indigency. Its members include the great majority of legal
services agencies throughout the United States, as well as
public defender offices, coordinated assigned counsel
systems, and private practitioners.

NLADA joins petitioner in seeking reversal of the
decision of the North Carolina Court of Appeals holding
that petitioner’s constitutional rights were not violated by
the trial court’s failure to appoint counsel for her in a
termination of parental rights proceeding. Because the
primary purpose of NLADA is to ensure that the poor have
access to equal justice, and because the members of
NLADA represent many indigents in all kinds of
proceedings, including those involving termination of
parental rights, NLADA has a unique perspective from
which to present to this Court arguments concerning the
need and importance of counsel in these proceedings and
the inability of legal services programs to meet the needs of
indigent parents in such proceedings.

Respectfully submitted,

DONALD R. LUNDBERG

KENNETH J. FALK

Legal Services Organization
of Indiana, Inc.

107 North Pennsylvania Street

Suite 300

Indianapolis, Indiana 46204

317/639-4151

Attorneys for Amicus Curiae,
National Legal Aid and Defender
Association

iv

TABLE OF AUTHORITIES

CASES: Page
Argersinger v. Hamlin, 407 U.S. 25 (1972).......... 20
Board of Regents v. Roth, 408 U.S. 564 (1972)....... 4
Cafeteria and Restaurant Workers Union v. McElroy,

OG? US. SOB CISC] cdi ooo oR ee tees 9
Carey v. Population Services International, 431 U.S.

O78 CLOT Ts och is Bn DAVEE ARO ed bn 0s Ged 8
Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974) ..... 19

Crist v. Division of Youth and Family Services, 135
N.J. Super. 573, 343 A.2d 815 (App. Div. 1975) .16,19

Crist v. Division of Youth and Family Services, 128
N.J. Super. 402, 320 A.2d 203 (Law Div. 1974)16, 18, 19

Danforth v. State Department of Health and Welfare,

303 A.2d 794 (S.Ct. Me. 1978).............0 eee 9
Davis v. Page, 618 F.2d 374 (5th Cir. 1980)......... 19
Doe v. Delaware, _. U.S. ——, 100 S.Ct. 1336

(1980) (probable juris. noted) ..........0 cece eee 21
Douglas v. California, 372 U.S. 353 (1963).......... 13
Gagnon v. Scarpelli, 411 U.S. 778 (1978)............ 16
Gideon v. Wainwright, 372 U.S. 335 (1963) ......... 13
Goldberg v. Kelly, 397 U.S. 254 (1970) .............. 14
Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1 (1979)........ 10
Griswold v. Connecticut, 381 U.S. 479 (1965)........ 8
Harris v. McCrae, _— U.S. ——, 100 S.Ct. 2671

CR 6 ike dates cS atin dae asp ccd Pee 8

In re Appeal in Pima County, Juvenile Action No.
J-46735 v. Howard, 112 Ariz. 171, 540 P.2d
OES CRETE as. iia a ics Lov cleo cv c cues ade dtaeeeatee 9

Vv

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ry

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Table of Authorities—Continued

Page

In re Brehm, 3 Kan.App.2d 325, 594 P.2d 269
Ts we wee nae vie )

In re Ella B., 30 N.Y.2d 352, 285 N.E.2d 288, 334
EE BU MMEG h vpn ct cencececces nes ciaeve 19
In re Friesz, 190 Neb. 347, 208 N.W.2d 259 (19738) ..16,19
In re Gault, 387 U.S. 1 (1967) 0... . cece cee eee eee 20
In re Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974). 9
In re R.I., 455 Pa.29, 312 A.2d 601 (1978)........... 19

In re Welfare of Myricks, 85 Wash.2d 252, 5338
ef REE Se 9,19

In the Matter of Leon R.R., 48 N.Y.2d 117, 397
N.E.2d 374, 412 N.Y.S.2d 474 (1979)........... 13
McKeiver v. Pennsylvania, 403 U.S. 528 (1971) ..... 20

Matter of Chad S., 580 P.2d 988 (S.Ct. Okla. 1978)... 19
Matter of Otis, ___ U.S. ——, 100 S.Ct. 262 (1979)

(cert. granted); _._ U.S. ——, 100 S.Ct.
1003 (1980) (vacated and remanded)............ 19
Mathews v. Eldridge, 424 U.S. 319 (1976)........... 10
May v. Anderson, 345 U.S. 528 (1958) ..........006. 8
Meyer v. Nebraska, 262 U.S. 390 (1928) ............ 7,8
Moore v. City of East Cleveland, 481 U.S. 494 (1977) 4, 5
Morrisey v. Brewer, 408 U.S. 471 (1972) ............ 10
Palko v. Connecticut, 302 U.S. 319 (1987). ......... 8

Papachristou v. City of Jacksonville, 405 U.S. 156
EE A ACN eas CMa cit o Raabe tics ceccceccce 21
Parham v. J.R., 442 U.S. 584 (1979) .......... 00005. 10
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ..... 7
Powell v. Alabama, 287 U.S. 45 (1982).............. 13

vi

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Table of Authorities—Continued

Page
Prince v. Massachusetts, 821 U.S. 158 (1944)........ 7,8
Quilloin v. Walcott, 484 U.S. 246 (1978) ............ 7

Regenold v. Baby Fold, Inc., 68 Ill.2d 419, 369 N.E.2d
858 (1977), appeal dismissed, 485 U.S. 963 (1978) 9

Reist v. Bay County Circuit Judge, 396 Mich. 326,

241 N.W.2d 55 (1976)... .. cece eee ee ee 9, 16, 18
Roe v. Conn, 417 F.Supp. 769 (M.D. Ala. 1976) ..... 19
Roe v. Wade, 410 U.S. 118 (1978)......... cece eee 8, 9
Scott v. Illinois, 440 U.S. 867 (1979) ........ weeveees 20
Skinner v. Oklahoma, 316 U.S. 585 (1942) .......... 7,8
Smith v. Edmiston, 431 F.Supp. 941 (W.D. Tenn.

NEE an his cakes ONS Paci ee ea ee ok oak noeithe 19
Smith v. Organization of Foster Families for Equality

and Reform, 431 U.S. 816 (1977) .......... ee eee 10,11
Stanley v. Illinois, 405 U.S. 645 (1972)....... 7, 8, 14, 15
State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399

PE Ee GOOG oa ya een dcdhsidees novarkawavuces 19
State ex rel. Lemaster v. Oakley, 203 S.E.2d 140

GEE CU BON ss ciceccbe snp nsbowncidaeOewnnee 9,19
State v. Jamison, 251 Or. 114, 444 P.2d 15

CRUE oink Li Swra'e's a's ulb'e-0.0dsa's dias ohare 9, 16, 17, 19
Trimble v. Gordon, 480 U.S. 762 (1977) ............. 2,4
Wiley v. Spratlan, 548 S.W.2d 349 (S.Ct. Tex. 1976) i)
CONSTITUTION:

Ninth Amendment ..............ccceeeeeseeeeeeees 8
Fourteenth Amendment..............sseeee00: passim

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Table of Authorities—Continued

Page
STATUTES:
Federal:
SS AT Be wee eae iia ee de ends ode e Ube 13
42 U.S.C. §671(a)(45) [effective October 1, 1983] .... 18
Be Ricans A GOR ou dc cov ceghos kamedqe Giese 23
OS TEE 4 kc bsis.nn dias vane on ade ebe tans bgakwas 23
AFR Ra OTS. ¢:\cce.n tsi vb estore ee ante He's cao dtas en 23
Oe Ue IS baie tc A dedbn caesarean cddoeeabaes 23
SR Aes EN Wn 3c alsbhvie 6.oebbdins Gob hecmeswee ties 23
STATE:
BAS, COE BUN. oon. c cinco cocgunavcccduvecess 18
ARIZ. REV. STAT. §8-532, et seq. ......... 0c c cece eens 4
CAL. Civ. CODE §2382, et seg. (West) ............e 008s 4
CAL. Civ. CODE §237.5 (1980 Supp.) (West) ......... 19
CoLo. REV. STAT. §19-11-101, et seg. ........... 0008 4
CoLo. REV. STAT. §19-11-108(2) ............. eee 19
CONN. GEN. STAT. §17-43(a), et seq. .... 6. ees 4
DEL. CODE ANN, tit. 13 §110, et seg. (1978 Supp.).... 4
D.C. Cope ANN. § 16-2353, et seg. (1978 Supp.) ...... 4
D.C. CoDE ENCYCL. §16-2304 (1978 Supp.) (West)... 19
GA. CODE ANN. §24A-2001 (1976 Rev.)..........005. 19
Ga. CODE ANN. §24A-3201, et seg. (1980 Supp.) ..... 4
HAWAII REV. STAT. §571-61, et seg. (1975 Supp.) .... 4
IDAHO CODE §16-2001, et seg. ....... cece cece cece ees 4

viii

Table of Authorities—Continued

Page
IDAHO CODE §16-2009 ....... 0. ccc cece cece ee ee eee 19
IND. CODE §31-6-5-1, et seg. (1980 Supp.)............ 4,5
IND. CODE §31-6-5-6(a) (1980 Supp.) .............06- 5
IND. CODE §31-6-7-2(b) (1980 Supp.) .............06- 19
IowA CODE ANN. §232.109, et seg. (1980 Supp.) (West) 4
Iowa CODE ANN. §282.113 (1980 Supp.) (West)...... 19
KAN. STAT. ANN. §38-820 (1979 Supp.) ............. 19
Ky. REv. STAT. §199.60, et seg. (1989 Supp.) ........ 4
Ky. REV. STAT. §199.608 (1980 Supp.) .............. 19
LA. Civ. CODE ANN. art. 18:1602 (1980 Supp.) (West) 19
MINN. STAT. ANN. §260.155 (West) .............0065 19
MINN. STAT. ANN. §260.221, et seg. (1980 Supp.)
og Ly SANE RR SISE LRG a ai EPC. oR PAN RR te 4
Mo. ANN, STAT. §211.447, et seg. (1980 Supp.)
CWE, Gu dave. i cco cewhad ob cht.cocminh an Setbon eos 4
Mo. ANN. STAT. §211.562 (1980 Supp.) (Vernon) .... 19
N.C. GEN. STAT. §7A-289.30(d 1979 Supp.)......... 21
N.C. GEN. STAT. §7A-289.30(e1979 Supp.) ......... 21
N.C. GEN. STAT. §7A-289.82 (1979 Supp.).........+- 16
N.D. CENT. CODE §27-20-26 ....... ccc cece eee ee eees 19
N.H. Rev. STAT. ANN, §170-C:10 ....... 0. ee eee eee 19
N.Y. Fam. Cr. ACT §262(aXiv) (1976-79 Supp.)...... 19
OHIO REV. CODE ANN. §2151.852 .............. 0c eee 19
OKLA. STAT. ANN. tit. 10, §1109 (West) ............. 19
Or. REV. STAT. §419.498 . 2.0.0... ccc cece eee eee ees 19

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Table of Authorities—Continued

Page
S.D. Comp. LAWS ANN. §26-8-22.2 .............0000- 19
Va. CODE §16.1-266 (1980 Supp.)................05- 19
Wash. REV. CODE ANN. §13.34.090 ................. 19
Wee VA. COM Ge bias - ie erie oe Seen do vengs 19
REGULATIONS:
Nae es EN 6 kc don os sdxbie so neNeds cengeenes 23

OTHER AUTHORITIES:

American Bar Association/Institute for Judicial Ad-
ministration, JUVENILE JUSTICE STANDARDS
PROJECT; STANDARDS ON ABUSE AND NEGLECT
CR ER 5 oa 6x eek eee be Oe wweN a bee bbws s 12, 13

M. Benet, THE POLITICS GF ADOPTION (1976) ....... 6

Bradley, The Relationship of Early Maternal Separa-
tion to Borderline Personality In Children and
Adolescents: A Pilot Study, 186 AM. JOURN. OF

POVORIATOY Gee RTO) bh bias cee sc ca cecwe es 6
Child Welfare League of American, STANDARDS FOR
ADOPTION SERVICE (Revised ed. 1978) .......... 5,11

Children’s Defense Fund, CHILDREN WITHOUT HOMES:
AN EXAMINATION OF PUBLIC RESPONSIBILITY TO
CHILDREN IN OUT-OF-HOME CARE (1978)...... 14, 12

Citizens’ Committee for Children of New York, Inc.,
THE CITY AND ITS CHILDREN: A VIEW OF How
NEW YORK SERVES ITS CHILDREN IN 1979

SR ch dele ki ene halen d oe Stenbeck kaa 12
Colon, Family Ties and Child Placement, 17 Fam.
PGs Be CRO baie hea sconces ks eanueeeeaee 6

|

Table ¢f Authorities—Continued

Page

Fanshel, Status Changes of Children In Foster Care,
55 CHILD WELFARE 143 (1976) ................. 11

Fanshel, The Exit of Children From Foster Care: An
Interim Research Report, 50 CHILD WELFARE 65

CRED © SoS ck he ae RRR s Cheha oss suienbnw keen th 11
J. Goldstein, A. Freud and A. Solnit, BEFORE THE
BEST INTERESTS OF THE CHILD (1979) .......... 5, 7

Jenkins, Child Welfare as a Class System in
CHILDREN AND DECENT PEOPLE 304 (Schorr ed.

TPP GR ite oaks ohio ba te CATS Co wANe 5p ae ash aes 18
Jenkins and Norman, FILIAL DEPRIVATION AND
PORTE CARE Chet 6 oi be i ORAS 18

A. Kadushin, CHILD WELFARE SERVICES (2d ed. 1974) 11, 12

Kay and Phillips, Poverty and the Law of Child
Custody, 54 CALIF.L.REV. 717 (1966) ........... 18

Legal Services Corporation, ANNUAL REPORT—FISCAL
Re SEs Akiak en hones daeadt chen 22, 23

Legal Services Corporation, NEws (September,
EE i iick aces Dena aay vcd os dc DD 23, 24

Legal Services Corporation, SELECTED FUNDING AND
STAFFING CHARACTERISTICS OF FIELD PROGRAMS
SUPPORTED BY THE LEGAL SERVICES CORPORA-
TION—START OF 1980—A FAcT Book (1980).... 23

Littner, The Challenge To Make Fuller Use Of Our
Knowledge About Children, 58 CHILD WELFARE
BOT COTO oe ce eck: boda cr wae Gh OKRA FR wREs Ce 6

N. Littner, SOME TRAUMATIC EFFECTS OF SEPARATION
AND PLACEMENT CI97TS) iis odo cic cb vi de dedi. 6

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Table of Authorities—Continued

Page
H. Mass and R. Engler, CHILDREN IN NEED OF
FR EI oor hie Shick whack VedeR vas see ehh ni 11

Mnookin, Child Custody Adjudication: Judicial
Functions in the Face of Indeterminacy, 39 (3)

LAW AND CONTEMP. PROBS. 226 (1975)........ 11, 12
Mnookin, Foster Care—In Whose Best Interest?, 43
HARV. Epuc. REV. 599 (1973) ................ 11, 12

New York City Comptroller’s Office, THE CHILDREN
ARE WAITING: THE FAILURE TO ACHIEVE PER-

MANENT HOMES For CHILDREN (1977).......... 11
Note, Child Neglect: Due Process for the Parent,
70 COLUM.L.REV. 468 (1970) .........ecceeeeees 14

Note, Representation in Child Neglect Cases: Are
Parents Neglected?, 4 CoLumM.J.LAw & SOc.

PU Be CS a ik ks vb has ccs bcs CA icwkans 13
Paulsen, Juvenile Courts, Family Courts, and the
Poor Man, 54 CALIF.L.REV. 694 (1966) ......... 16

Prugh and Harlow, “Masked Deprivation” in Infants
and Young Children in DEPRIVATION OF MATERNAL
CARE 9 (World Health Organization 1962)...... 6

Rein, Nutt and Weiss, Foster Family Care: Myth and
Reality in CHILDREN AND DECENT PEOPLE
(Schorr OG. 1974) s. Sa 6c a ee ies 11, 18

E. Shermin, R. Neuman and A. Shyne, CHILDREN
ADRIFT IN FOSTER CARE: A STUDY OF ALTERN-
ATIVE APPROACHES 38 (1973)...........-ceeeeees 11

ten Broek, California’s Dual System of Family
Law: Its Origin, Development, and Present
Status, 16 STAN.L.REV. 257 (Part I); 16
STAN.L.REV. 900 (Part II) (1964); 17 STAn.
L.REV. 614 (Part III) (1965) ................... 18

xii

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Table of Authorities—Continued
Page

U.S. Department of Health and Human Services,
CHARACTERISTICS OF STATE PLANS FOR AID
To FAMILIES WITH DEPENDENT CHILDREN UNDER
THE SOCIAL SECURITY ACT TITLE IV-A (1980)... 13

Wald, State Intervention on Behalf of “Neglected”
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 (1976). 11, 12

xiii

No. 79-6423

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980
ABBY GAIL LASSITER,
Petitioner,
VS.

DEPARTMENT OF SOCIAL SERVICES
OF DURHAM COUNTY, NORTH
CAROLINA,
Respondent.
(IN THE MATTER OF WILLIAM L. LASSITER)

On Writ of Certiorari to the
North Carolina Court of Appeals

BRIEF FOR AMICUS CURIAE
NATIONAL LEGAL AID AND
DEFENDER ASSOCIATION

INTEREST OF THE AMICUS

The National Legal Aid and Defender Association (here-
inafter referred to as “NLADA”) is a not-for-profit organi-
zation whose primary purpose is to assist in providing
effective legal services to persons unable to retain counsel

1

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‘SS

2

because of their indigency. Its members include the great
majority of free legal services agencies throughout the
United States, as well as public defender offices and
coordinated assigned counsel systems. NLADA also
includes two thousand individual members, most of whom
are private practitioners.

NLADA joins petitioner in seeking reversal of the
decision of the North Carolina Court of Appeals which held
that the constitutional rights of petitioner, an indigent
person, were not violated by the trial court’s failure to
appoint counsel for her in a proceeding which resulted in
the termination of her parental rights. Because the
primary purpose of NLADA is to ensure that the poor have
access to equal justice, NLADA, on behalf of the many
clients of its members, has a unique interest in ensuring
that poor persons obtain appointed counsel in termination
of parental rights proceedings. This is especially true since
the limited resources of NLADA members make it
impossible for them to represent all indigent parents in
need of counsel. NLADA has an interest in protecting the
rights of clients and potential clients of member programs
and in ensuring that they are denied no rights because of
their proverty. NLADA therefore submits this brief in
support of poor persons’ rights to appointed counsel in
termination of parental rights proceedings.

SUMMARY OF ARGUMENT

Indigent parents who are subjected to proceedings in
which the state seeks to terminate their parental rights
must be provided court appointed counsel at public
expense. Appointed counsel is critical to a trial that
comports with the concern for basic fairness inherent in a
system of due process of law.

The family unit is “perhaps the most fundamental social
institution of our society.” Trimble v. Gordon, 430 U.S. 762,
769 (1977). Because the integrity of the family unit is of
such importance, it is protected from state interference as a

3

liberty interest under the Due Process Clause of the
_ Fourteenth Amendment.

’, Inasmuch as the parent-child relationship is a protected
liberty interest, that relationship can be severed by action
of the state only in the presence of certain procedural
safeguards. Procedural due process requires appointment
of counsel at trial for those parents who cannot afford to
hire counsel. The parents’ interest, the right to family
integrity, is fundamental under our scheme of protected
liberties. The appointment of counsel is crucial to the
protection of the parents’ liberty interest, and, absent
appointed counsel, there is a tremendous risk that
termination of parental rights will erroneously occur. On
the other hand, the sole cognizable state interest in
preventing the appointment of counsel is to save
governmental resources, primarily money. This state
interest is an insufficient justification to override the
fundamental rights of parents.

In the criminal law context, this Court has found the
appointment of counsel for indigent defendants to be
critical to the protection of cherished liberties. The impact
of a civil proceeding where the result is total and
permanent loss of one’s children is no less serious than the
impact of most criminal proceedings on personal liberty.

Finally, the failure of this Court to recognize a
constitutionally based right to appointed counsel will
inevitably result in large numbers of parents being
deprived of one of our most cherished liberties without the
protection of legal representation. The present resources
for providing no-cost representation to poor parents faced
with termination of parental rights proceedings are
inadequate to assure that all, or even most, will be
represented.

Accordingly, the decision of the North Carolina Court of
Appeals denying a right to court appointed counsel for
indigent parents in termination of parental rights
proceedings is incorrect-end contrary to the decisions of
this Court and must be reversed.

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ARGUMENT

I. PARENTS’ INTERESTS IN TERMINATION OF
PARENTAL RIGHTS PROCEEDINGS ARE
LIBERTY INTERESTS ENTITLED TO THE
HIGHEST PROTECTION UNDER THE DUE
PROCESS CLAUSE

The appeal in this cause concerns complete and
irrevocable termination of an indigent parent’s interests in
her child, and whether the Due Process Clause of the
Fourteenth Amendment required that counsel be
appointed for her in the termination hearing. "' is
axiomatic that procedural due process protections must be
afforded only if a liberty or property interest is present.
Board of Regents v. Roth, 408 U.S. 564, 569 (1972). The
interests destroyed by a termination of parental rights
proceeding are liberty interests entitled to the highest
protection.

This Court has noted that the family is “perhaps the most
fundamental social institution of our society.” Trimble v.
Gordon, 430 U.S. 762, 769 (1977). “It is through the family
that we inculcate and pass down many of our most
cherished values, moral and cultural.” Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977). A termination of
parental rights proceeding, present in sundry forms in
every state, destroys that fundamental social institution.!

' A representative sampling of state termination of parental rights
standards can be found by examining, e.g., ARIZ. REV. STAT. §8-532, et
seq.; CAL. Civ. CODE §232, et seg. (West); COLO. REV. STAT. §19-11-101, et
seq.; CONN. GEN. STAT. §17-43(a), et seg.; DEL. CODF ANN. tit. 13 §110, et
seq. (1978 Supp.); D.C. CoDE ANN. §16-2353, et seg. (1978 Supp.); GA.
CoDE ANN. §24A-3201, et seg. (1980 Supp.); HAWAII REV. Star. §571-61,
et seq. (1975 Supp.); IDAHO CODE §16-2001, et seq.; IND. CODE §31-6-5-1, et
seq. (1980 Supp.); lowa CoDE ANN. §232.109, et seg. (1980 Supp.) (West);
Ky. REV. STAT. §199.60, et seq. (1980 Supp.); MINN. STAT. ANN. §260.221,
et seq. (1980 Supp.) (West); Mo. ANN. STAT. §211.447, et seq. (1980 Supp.)
(Vernon).

4

5

The result is both final and irrevocable. If parents have
their rights terminated they lose all their rights and
interests in the children involved. Thus, not only are their
custodial rights removed, but all other rights, duties and
responsibilities emanating from the parent and child
relationship are severed. The parents are left in the position
as if they had never had the children. And, of course, the
children are left as if they had never had natural parents.”
Thus, the termination decision sounds the death knell for
the relationship. While the legal effects of the termination
can be described briefly, the actual ramifications of the
termination of parental rights are devastating for all
parties involved, including the children. It is certainly not
exaggeration to describe the forced break-up of this most
fundamental of all human relationships as worse than most
terms of incarceration. See part II, supra. It is therefore to
be expected, that when the state intrudes upon the family
relationship, and separates parent and child, the “effect on
the child’s developmental progress is invariably
detrimental.”? The developmental scarring, which is most

2 For example, the Indiana termination of parental rights statute,
IND. CODE §31-6-5-1, et seg. (1980 Supp.), explicitly lays out the dire
wees apeons emanating from the judicial decision to terminate parental
rights.
When the juvenile court terminates the parent-child relationship,
all rights, powers, privileges, immunities, duties, and obligations
(including any rights to custody, control, visitation, or support)
pertaining to that relationship are permanently terminated, and
the parent’s consent to the child’s adoption is not required.

IND. CODE §31-6-5-6(a) (1980 Supp.).

3 J. Goldstein, A. Freud and A. Solnit, BEFORE THE BEST INTERESTS
OF THE CHILD 9 (1979) (footnote omitted). The social scientists, social
workers, psychologists and psychiatrists operating in this area
acknowledge the fact that:

the biological family of father, mother and their children
constitutes the natural means of providing family life for children,
and should for that reason be fostered and preserved whenever
possible.
Child Welfare League of America, STANDARDS FOR ADOPTION SERVICE 9
(Revised ed. 1978). See Moore v. City of East Cleveland, 431 U.S. 494, 503
(1977).
(Footnote continued on following page)

e*%

J

6

likely to occur to children separated before the age of six,
with the exception of the newborn, can take the form of a
wide range of psychological problems, e.g., 1. a freezing of
personality development at the point of separation; 2. an
excessive distrust of people and a reluctance or inability to
enter into close relationships; 3. self defeating behavior; or,
4. a tendency of the child upon reaching adulthood, to
reproduce the problems in her own children.‘ Even where a
family might appear to be one needing state intervention,

continued

The desire to protect the natural family whenever possible stems from
more than a general feeling that parents and children should be
together. It stems from a professional recognition that the severence of
the relationship can gravely and permanently harm not only the parents,
but the child.

It is becoming increasingly clear that when a child is cut off from
his biological family system there is for the child, the parents, and
the families involved a deep mutual sense of personal
loss....[Indeed, research supports the hypothesis that] persons
who experience unresolved emotional cut-offs from significant
others are persons at higher risk emotionally and psychologically
than those who have resolved such cut-offs.
Colon, Family Ties and Child Placement, 17 FAM. PRAC. 289, 290 (1978).
For some:
studies have indicated that adoptive families have unique
strengths and weaknesses, not all of which operate to the child’s
advantage. Many researchers feel that the adopted child, no
matter how secure, is bound to suffer from “geneological
bewilderment”: that is, he may feel a lingering sense of rejection
stemming from his separation from his biological parents.
M. Benet, THE POLITICS OF ADOPTION 19 (1976). See also Bradley, The
Relationship of Early Maternal Separation to Borderline Personality in
Children and Adolescents: A Pilot Study, 136 AM. JOURN. OF PSYCHIATRY
424 (1979); Littner, The Challenge to Make Fuller Use of Our Knowledge
About Children, 58 CHILD WELFARE 287 (1974); N. Littner, SoME
TRAUMATIC EFFECTS OF SEPARATION AND PLACEMENT (1973); Prugh and
Harlow, “Masked Deprivation” in Infants and Young Children in
DEPRIVATION OF MATERNAL CARE 9 (World Health Organization 1962).

4 N. Littner, SOME TRAUMATIC EFFECTS, supra, note 3 at 20. Littner,
CHILD WELFARE, supra, note 3 at 288-291.

7

the parent-child relationship retains its fundamental
importance for the family members, and the dangers
inherent in termination remain. Thus, a decision
terminating parental rights is one with grave psychological
and social ramifications, as well as grave legal
consequences.

The obvious importance of the parent-child relationship
has been repeatedly recognized by this Court. The Court
has held that the parent-child relationship, which is
obliterated by a termination of parental rights, is part of
the liberty protected by the Due Process Clause. As far
back as 1923, this Court recognized that the liberty in the
Due Process Clause “denotes. ..the right of the individual
to...establish a home and bring up children.” Meyer v.
Nebraska, 262 U.S. 390, 399 (1923). Since that time the
importance of the family has repeatedly been emphasized
by this Court. See Pierce v. Society of Sisters, 268 U.S. 510
(1925); Skinner v. Oklahoma, 316 U.S. 535 (1942); Prince v.
Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405
U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 246 (1978).

It is established, then, that “the relationship between
parent and child is constitutionally protected.” Quilloin,

5 By its intrusion the state may make a bad siutation worse; indeed,
it may turn a tolerable or even a good situation into a bad one.
The intact family offers the child a rare and continuing
combination of elements to further his growth: reciprocal affection
between the child and two, or at least one, caretaking adult; the
feeling of being wanted and therefore valued; and the stimulation
of inborn capacities. Available alternatives too often fail to offer
the whole series, and accordingly leave one or the other other part
of the child’s personality without developmental support.
Recognition of these shortcomings should alert the law to ask in
every case whether removal from an unsatisfactory home is the
beneficial measure it purports to be.

J. Goldstein, A. Freud and A. Solnit, BEFORE THE BEST INTERESTS OF
THE CHILD 13 (1979) (footnotes omitted). It should be noted that once
parental rights are terminated there are often no real “available
alternatives” and the child is left to drift without ever securing an
adoptive placement. See note 9, infra.

-%

- >

-%

8

434 U.S. at 255.° The constitutional rights implicit in this
relationship have been found to emanate from the Due
Process Clause, the Equal Protection Clause, and the Ninth
Amendment. Meyer v. Nebraska, 262 U.S. at 399; Skinner
v. Oklahoma, 316 U.S. at 541; Griswold v. Connecticut, 381
U.S. 479, 496 (1965) (Goldberg, J., concurring). Generally,
the right to family integrity is described as being
subsumed in the “right of personal privacy.” Roe v. Wade,
410 U.S. 118, 152 (1973); Carey v. Population Services
International,431 U.S. 678, 684-85 (1977).? The rights
included within the zone of privacy protecting each person
must be described as “‘fundamental’ or ‘implicit in the
concept of ordered liberty,’ Palko v. Connecticut, 302 U.S.
319, 325 (1937).” Roe v. Wade, 410 U.S. at 152. As a
fundamental right, the interests existing between a parent

6 The Court has frequently emphasized the importance of the
family. The rights to conceive and to raise one’s children have been
deemed “essential”, Meyer v. Nebraska, 262 U.S. 390,
399. ..(1923), “basic civil rights of man,” Skinner v. Oklahoma, 316
U.S. 535, 541...(1942), and “[rlights far more precious. ..than
property rights,” May v. Anderson, 345 U.S. 528, 533 (1953). “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.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

Stanley v. Illinois, 405 U.S. 645, 651 (1972). Indeed, only last term this
Court noted that:
the “liberty” protected by the Due Process Clause of the
Fourteenth Amendment includes not only the freedoms explicitly
mentioned in the Bill of Rights, but also freedom of personal choice
in certain matters of marriage and family life.
Harris v. McRae, U.S. 100 S.Ct. 2671, 2686 (1980)
(footnote omitted).
7 “The Constitution does not explicitly mention any right of privacy. In
a line of decisions, however. ..the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does
exist under the Constitution. ... Those decisions. ..make it clear that the
right has some extension to activities relating to...family
relationships. ..and child rearing and education.” Roe v. Wade, 410 U.S.
113, 152-53 (1973).

9

and child are not only entitled to cognizance under the Due
Process Clause, but are also entitled to the highest
protections afforded under the Constitution. Jd. at 156.8

II. THE DUE PROCESS CLAUSE OF THE FOUR-
TEENTH AMENDMENT REQUIRES THAT
COUNSEL BE APPOINTED AT PUBLIC EX-
PENSE TO REPRESENT AN INDIGENT PARENT
IN A TERMINATION OF PARENTAL RIGHTS
PROCEEDING

The fact that due process must accompany the attempts
by the state to terminate the relationship between parent
and child does not resolve the more difficult question of the
extent to which procedural protections must be made
available in such cases. “The very nature of due process
negates any concept of inflexible procedures universally
applicable to every imaginable situation.” Cafeteria and
Restaurant Workers Union v. McElroy, 367 U.S. 886, 895

8 The Court in Roe, 410 U.S. at 155 noted that:

[wJhere certain “fundamental rights” are involved the Court has
held that regulation limiting these rights may be justified only by a
“compelling state interest”...and that legislative enactments
must be narrowly drawn to express only the legitimate state
interests at stake.

Various state courts have characterized the parent’s interest in the
most compelling terms: “...more precious to many people than the right
of life itself.” In re Luscier, 84 Wash.2d 135, 524 P.2d 906, 908 (1974);
“ .,asanction more severe than imprisonment.” State ex rel. Lemaster v.
Oakley, 203 S.E.2d 140, 144 (S.Ct. W.Va. 1974); Danforth v. State
Department of Health and Welfare, 303 A.2d 794, 800 (S.Ct. Me. 1973);
“.,..one of the most drastic actions the State can take against its
inhabitants.” State v. Jamison, 251 Or. 114, 444 P.2d 15, 17 (1968).

See also In re Appeal in Pima County, Juvenile Action No. J-46735 v.
Howard, 112 Ariz. 171, 540 P.2d 642 (1975); Regenold v. Baby Fold, Inc.,
68 Ill. 2d 419, 369 N.E.2d 858 (1977), appeal dismissed, 435 U.S. 963
(1978); In re Brehm, 3 Kan. App.2d 325, 594 P.2d 269 (1979); Reist v. Bay
County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (1976); Wiley v.
Spratlan, 543 §.W.2d 349 (Tex. 1976); In re Welfare of Myricks, 85
Wash.2d 252, 533 P.2d 841 (1975).

i’

10

(1961). See also Greenholiz v. Inmates of Nebraska Penal
and Correctional Complex, 442 U.S. 1, 12 (1979); Morrisey
v. Brewer, 408 U.S. 471, 481 (1972). This Court has
consistently followed a three-pronged analysis in
determining how much process is due under the
Fourteenth Amendment where protected liberty interests
are at stake:

[I}dentification of the specific dictates of due process
generally requires consideration of three distinct
factors: first, the private interest that will be affected
by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See also
Parham v. J.R., 442 U.S. 584, 599-600 (1979); Smith v.
Organization of Foster Families for Equality and Reform,
431 U.S. 816, 848-849 (1977). The application of this
tripartite test to termination of parental rights
demonstrates that court appointed counsel at public

expense for indigent parents is an essential, constitutionally
required aspect of due process of law.

First, the private interest at stake in a termination of
parental rights proceeding is the parental right to care,
custody and companionship of minor children. The parents’
interest is among the most fundamental recognized by our
society and by our legal system. See part I, supra.

The interest of the state in termination of parental rights
proceedings is qualitatively less substantial than the
parents’ interest. While the precise authority for
termination of parental rights varies somewhat from
jurisdiction to jurisdictioin, the basic concern of the state is

11

to make provision, in its parens patriae capacity, for those
children who are bereft of parental care for any reason,
whether it be absence, neglect or abuse. However, there is
no guarantee that a child whose biological parents’ rights
are terminated will end up in a secure, stable placement.®

® Not all children whose parental rights are terminated are readily
adoptable. There are many hard to place children, particularly older
children, minority children and children with handicaps, who remain in
institutions and foster homes even after they have been freed for
adoption by termination of parental rights proceedings. See A.
Kadushin, CHILD WELF/ RE SERVICES 582-595 (2d ed. 1974); New York
City Comptroller's Office, THE CHILDREN ARE WAITING: THE FAILURE
To ACHIEVE PERMANENT HOMES FOR CHILDREN 7 (1977); Wald, State
Intervention on Behalf of “Neglected” 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, 673-674
(1976). One group has estimated that “[a]t least 100,000 children wait for
families because finding homes for children who are older or who have
physical or other handicaps has for a variety of reasons been fraught
with difficulties.” Child Welfare League of America, STANDARDS FOR
ADOPTION SERVICE 8-9 (Rev. ed. 1978). Recent literature shows that
children in the foster care system tend to remain in foster placements for
inordinately long periods of time. See Children’s Defense Fund,
CHILDREN WITHOUT HOMEs: AN EXAMINATION OF PUBLIC RESPONSIBILITY TO
CHILDREN IN OUT-OF-HOME CARE 30-33 (1978); Fanshel, Status Changes
of Children in Foster Care, 55 CHILD WELFARE 143, 144-45 (1976);
Fanshel, The E-rit of Children From Foster Care: An Interim Research
Report, 50 CHILD WELFARE 65, 66-67 (1971); A. Kadushin, supra at 454-
455; H. Maas and R. Engler, CHILDREN IN NEED OF PARENTS (1959);
Mnookin, Child Custody Adjudication; Judicial Functions in the Face of
Indeterminacy, 39 (3) LAW AND CONTEMP. PROBS, 226, 273-277 (1975);
Mnookin, Foster Care—In Whose Best Interest?, 48 Harv. Epuc. Rev.
599, 610-613 (1973); New York City Comptroller's Office, supra at 4 -\2;
Rein, Nutt and Weiss, Foster Family Care: Myth and Reality in
CHILDREN AND DECENT PEOPLE 37-39 (Schorr ed. 1974); E. Shermin, R.
Neuman and A. Shyne, CHILDREN ADRIFT IN FOSTER CARE: A STUDY OF
ALTERNATIVE APPROACHES 3 (1973); Wald, supra at 662-663 (1973). See
also Smith v. Organization of Foster Families For Equality and Reform,
431 U.S. 816, 835-836 (1977). For example, in New York City alone, of
children in foster care, adoption is the objective for 22.3% of the children,
and yet only 3.9% of the children in care are in preadoptive or adoptive
homes. The mean length of time for children in foster care in New York

(Footnote continued on following page)

7%

12

Thus, the state interest in establishing permanent,
adequate homes for children is by no means co-extensive
with its efforts to terminate parental rights.!°

The abstract interest of the state in providing stable
placements for children must be examined in the context of
the procedure in question in order to determine the
significance of the procedure from the state’s perspective.
When the right to court appointed counsel is viewed from
the state’s perspective, it is clear that the state’s interest is
enhanced by the procedure in question or at a minimum
falls into insignificance. Without question, the state has no
legitimate, cognizable interest in terminating the rights of
parents who do not come within the scope of the
appropriate statutory standards for terminating parental
rights. In fact, the state has an affirmative obligation to
make efforts to provide for the reunification of the natural

continued

City is five years. Citizens’ Committee for Children of New York, Inc.,
THE CITY AND ITs CHILDREN: A VIEW OF How NEw YORK SERVES ITS
CHILDREN IN 1979 45-48 (1980).

Additionally, children in foster placements do not necessarily
experience continuity of care, but may be, and frequently are, shifted
from short-term placement to short-term placement, with little regard
for the child’s need for stable relationships. See Children’s Defense
Fund, supra at 40-41; A. Kadushin, supra at 457, 462; Mnookin, Child
Custody Adjudication, supra at 273; Mnookin, Foster Care, supra at 612;
Wald, supra at 645-646, 671.

10 Indeed, various authorities have contended that termination of
parental rights should not take place unless there is a reasonable
probability that an alternate, permanent placement is available for the
child. In cases where no stable, alternate placement for the child can be
expected, parental rights should be left intact as the natural family
rernains a potential future resource for the child’s nurturance. See Wald,
supra, note 9 at 699; American Bar Association/Institute for Judicial
Administration, JUVENILE JUSTICE STANDARDS PROJECT; STANDARDS
ON ABUSE AND NEGLECT §8.4(D) (1977).

13

family." This Court has consistently recognized that under
our system of adversarial jurisprudence, the presence of .
counsel to represent all parties interested in a proceeding
contributes substantially to the accuracy of the fact-finding
process and the legal conclusions to be drawn from the
facts. Gideon v. Wainwright, 372 U.S. 335, 344 (1963);
Douglas v. California, 372 U.S. 358, 357 (1963); Powell v.
Alabama, 287 U.S. 45, 68-69 (1932). Becauce of the impact
counsel for all parties has upon the integrity of the court’s
decision-making process, appointment of counsel for
parents who would otherwise go unrepresented actually
has a salutary effect upon the shared interest of parents and
state in avoiding erroneous terminations of parental
rights.'2 Thus, while the state has an interest in assuring

'! 42 U.S.C. §601 provides that federal funds be made available to
states which have submitted, and have had approved by the Secretary of
the Department of Health and Human Services, a state plan for aid and
services to needy families with children, the purpose being:

to help maintain and strengthen family life and to help such
parents or relatives to attain or retain capacity for the maximum
self-support and personal independence consistent with the
maintenance of continuing parental care and protection....
All fifty states, including North Carolina, have elected to participate iu
this program. U.S. Department of Health and Human Services,
CHARACTERISTICS OF STATE PLANS FOR AID TO FAMILIES WITH
DEPENDENT CHILDREN UNDER THE SOCIAL SECURITY ACT TITLE IV-A
(1980). See also 42 U.S.C. §671(aX45) [effective October 1, 1983); Jn the
Matter of Leon R.R., 48 N.Y.2d 117, 397 N.¥..2d 374, 412 N.Y.S.2d 474
(1979); American Bar Association/Institute for Judicial Administration,
supra, note 10 at §6.5(B)(1).

2 The presence of counsel for the parents has a substantial impact
upon the results that are achieved. A study has shown that in temporary
custody proceedings brought against parents by state welfare
authorities, results beneficial to the continuing unity of parent and child
were highly correlated with the presence of counsel on behalf of the
parents. Note, Representation in Child Neglect Cases: Are Parents
Neglected?, 4 CoLuM. J. LAw & Soc. Pros. 230, 242-243 (1968). This has
led one commentator to observe:

(Footnote continued on following page)

-*%

-%

_

14

stable and secure placements for the children in its
boundaries, that interest is enhanced by court procedures
that provide a safeguard against poor parents and children
being unnecessarily deprived of their relationships with
each other. At the very least, the state’s parens patriae
interest is totally irrelevant to the issue of court appointed
counsel.

The only legitimate, cognizable interest the state has in
denying counsel to parents in termination of parental
rights cases is to save money and other state resources.
However, this Court has consistently rejected economic
considerations as adequate justification for withholding
procedures necessary to protect the fundamental rights of
citizens. Stanley v. Illinois, 405 U.S. 645, 656 (1972);
Goldberg v. Kelly, 397 U.S. 254, 265-266 (1970). Likewise, it
is arguably quicker, and therefore more efficient, to
terminete the rights of parents in the absence of a spirited
defense put on by competent legal counsel. But
considerations of efficiency hardly create a state interest of
sufficient magnitude to allow the trampling of rights as
important as those that make up the parent-child
relationship.

[T]he Constitution recognizes higher values than
speed and efficiency. Indeed, one might fairly say of
the Bill of Rights in general, and the Due Process

continued

Since there is no evidence indicating that the average respondent
who can retain counsel is better or less neglectful than one who
cannot, the conclusion seems inescapable that a significant
number of cases against unrepresented parents result in findings
of neglect solely because of the absence of counsel. In other words,
assuming a basic faith in the adversary system as a method of
bringing the truth to light, a significant number of neglect
findings (followed in many cases by a taking of the child from his
parents) against unrepresented indigents are probably erroneous.
It would be hard to think of a system of law that works more to the
oppression of the poor than the denial of appointed counsel to
indigents in neglect proceedings.

Note, Child Neglect: Due Process For the Parent, 70 CoLuM. L. REV. 468,

476 (1970).

15

Clause in particular, that they were designed to
protect the fragile values of a vulnerable citizenry
from the overbearing concern for efficiency and
efficacy that may characterize praiseworthy
government officials no less, and perhaps more, than
mediocre ones.

Stanley v. Illinois, 405 U.S. at 656. Thus, when measured
against the competing interests of parents, the state
interest in saving funds and operating efficiently is de
minimus.

The third aspect of due process analysis is to consider the
importance of the procedure in question as a safeguard
against erroneous deprivations of fundamental rights.
Representation of counsel throughout a termination of
parental rights proceeding is of inestimable importance in
protecting indigent parents against the erroneous and ill-
considered severing of the relationship between biological
parent and child. Without the protection of a trained legal
advocate, the probability of erroneous determinations is
great.

Proceedings to terminate parental rights are extremely
complex. The statutory standards for the termination of
parental rights vary somewhat from state to state, but it is
characteristic of these standards to require the court to
make its determination on the basis of complicated factual
issues that require close analysis of human behavior.'’
Indeed, this Court has recognized the importance of

'3 See note 1, supra. The North Carolina statute, under which the
petitioner’s parental rights were terminated in this case, is illustrative of
this point:

The court may terminate the parental rights upon a finding of one

or more of the following:
*-_ * *

(3) The parent has willfully left the child in foster care for more
than two consecutive years without showing to the satisfaction of
the court that substantial progress has been made within two years
in correcting those conditions which led to the removal of the child
for neglect, or without showing positive response within two years

(Footnote continued on following page)

16

appointed counsel in cases where the factual determina-
tions involved are complex. Gagnon v. Scarpelli, 411 U.S.
778, 790 (1973). Whether termination of parental rights is
in the best interest of the child, the ultimate inquiry in any
termination of parental rights proceeding, is in itself an
issue of unfathomable complexity.

Often, termination of parental rights proceedings focus
on such issues as the parenting skills of the parents, the
medical or emotional needs of the child, the quality of the
relationship between the parent and child, or the mental
fitness of the parent. The adequacy of efforts by social
service personnel to assist parents in alleviating
unacceptable home conditions is also frequently open to
inquiry in termination proceedings. These are all issues
that call for, and frequently involve, the testimony of expert
witnesses such as medical doctors, psychologists, and social
workers, in addition to the technical records used by these
professionals.'* In this connection, the unrepresented

continued

to the diligent efforts of a county department of social services, a
child-caring institution or licensed child placing agency to
encourage the parent to strengthen the.parental relationship tothe
child or to make and follow through with constructive planning for
the future of the child. .

* *
N.C. GEN. STAT. §7A-289.32 (1979 Supp.).

4 See, e.g., the evidence submitted to the court in Jn re F'riesz, 190 Neb.
347, 208 N.W.2d 259 (1973), which consisted primarily of the testimony
of the county public assistance director and three caseworkers. Jd., 208
N.W.2d at 261.

Parents most often involved in neglect and termination
proceedings are usually the least equipped, in terms of intellectual
and emotional resources, to respond in such proceedings.
Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55, 63-64.
(1976). See also Crist v. Division of Youth and Family Services, 128 N.J.
Super. 402, 320 A.2d 203, 210 (Law Div. 1974), affd., 185 N.J. Super. 573,
343 A.2d 815 (App. Div. 1975). .
The indigent are frequently the least able to cope with government
in its official functions. See Paulsen, Juvenile Courts, Family
Courts, and the Poor Man, 54 CALIF. L. REV. 694 (1966). The case at
bar was routine for the welfare workers and other juvenile court
staff. For the indigent mother, however, the entire proceedings
were incomprehensible.

State v. Jamison, 251 Or. 114, 116-117, 444 P.2d 15, 17 (1968).

17

parent is at a two-fold disadvantage. First, it is
unreasonable to expect the parent acting pro se to perform
an adequate job of testing and probing the expert testimony
of the state. The average lay person, untrained in the skills
of cross-examination and having little familiarity with
these areas of expertise, stands helpless before the
intimidating authority of such professionals.'® Second, the
unrepresented poor parent is almost always without
resources, financial or otherwise, to marshall expert
testimony and documentary evidence in support of
maintaining the parent-child relationship. In this
connection, the facts of this case clearly demonstrate that
appointed counsel is an essential of due process. Abby Gail
Lassiter was imprisoned at the time of, and prior to, trial.
Under those circumstances, the preparation of a
meaningful defense, absent other assistance, was impossible.

The parent stands against a formidable opponent in a
termination of parental rights proceeding. The state, as in
this case and most such cases, is represented by counsel and
has available the resources of the petitioning welfare or
social services agency. These resources include the
assistance of trained socia! workers, the funds or other
means to secure documentary exhibits and the assistance of
other trained professional personnel, and the sophistication
to control the course of the proceedings. Also, the state has
typically processed hundreds or thousands of these cases
and therefore has the advantage of considerable experience
at presenting any given case to a known judge in the most
favorable light.

'S This is well illustrated by the court’s observations in Sate v.
Jamison, 251 Or. 114, 444 P.2d 15 (1968):

Without counsel, the informality usually associated with ex parte
hearings prevailed. The juvenile court was led to proceed on the
basis of incompetent evidence and evidence that had remote, if
any, connection with the issues made up by the petition.

Id., 444 P.2d at 17.

e%

-*

ae eens eS

18

By way of contrast, the parent is generally ill-educated,
poor and lacking in the skills necessary to prepare an
adequate defense.'* In a termination of parental rights
proceeding, the parent is faced with the need to make
evidentiary objections, cross-examine witnesses, subpoena
witnesses and exhibits, and present a coherent view of the
facts supporting the parent’s position through competent
evidence. Even to a trained attorney, these tasks stand as
significant challenges. The indigent parent, faced with
these insurmountable obstacles, has no chance of salvaging
the legal relationship with his or her child unless the
assistance of counsel is provided.

These factors point to an overwhelming disparity
between the abilities of the petitioning agency and the
unrepresented, natural parent to present their respective
cases. The result is that the facts and the legal arguments
growing out of those facts that are presented to the court
will inevitably be one-sided. Therefore, given the complex
nature of a termination of parental rights proceeding, it is
clear that the lack of court-appointed counsel to represent
the indigent parent creates a substantial risk that parental
rights will be erroneously terminated.!”

16 Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W. 2d 55,
63-64 (1976); Crist v. Division of Youth and Family Services, 128 N.J.
Super. 402, 320 A.2d 203, 210 (Law Div. 1974); State v. Jamison, 251 Or.
114, 444 P.2d 15, 17 (Or. 1968). See also Jenkins, Child Welfare As A
Class Sytem in CHILDREN AND DECENT PEOPLE 3, 11-12 (Schorr ed.
1974); Jenkins and Norman, FILIAL DEPRIVATION AND FOSTER CARE 25-
30 (1972); Kay and Phillips, Poverty and the Law of Child Custody, 54
CALIF. L. REV. 717, 733-739 (1966); Rein, Nutt and Weiss, supra, note 9 at
24-29. And see generally ten Broek, California's Dual System of Family
Law: Its Origin, Development, and Present Status, 16 STAN. L. REV. 257
(Part I); 16 STAN. L. REv. 900 (Part IT)(1964); 17 STAN. L. Rev. 614 (Part
ITT) (1965).

7 The right of indigent parents to appointed counsel at trial in
termination of parental rights cases has been established in a large
number of jurisdictions by legislation or court decision. See, e.g., ALA.

(Footnote continued on following page)

19

The right of an indigent parent to court appointed
counsel at trial in a termination of parental rights
proceeding is one of first impression in this Court.'* This
Court has, of course, determined that court appointed
counsel is required to represent the indigent defendant ina
criminal proceeding where incarceration is the disposition.

continued

CODE §12-15-63; CAL. CiviIL CODE §237.5 (1980 Supp.) (West); CoLo. REv.
STAT. §19-11-103(2); D.C. CopE ENCYCL. §16-2304 (1978 Supp.) (West);
GA. CODE ANN. §24A-2001 (1976 Rev.); IDAHO CODE §16-2009; IND. CODE
§31-6-7-2(b) (1980 Supp.); IowA CoDE ANN. §232.113 (1980 Supp.)
(West); KAN. STAT. ANN. §38-820 (1979 Supp.); Ky. REv. STAT. §199.603
(1980 Supp.); LA. Civ. CODE ANN. art. 13:1602 (1980 Supp.) (West); MINN.
STAT. ANN. §260.155 (West); Mo. ANN. STAT. §211.562 (1980 Supp.)
(Vernon); N.D. CENT. CODE §27-20-26; N.H. Rev. STAT. ANN. §170-C:10;
N.Y. Fam. Ct. ACT §262(aXiv) (1976-79 Supp.); OHIO REV. CODE ANN.
§2151.352; OKLA. STAT. ANN. tit. 10, §1109 (West); Or. Rev. STAT.
§419.498; S.D. Comp. LAws ANN. §26-8-22.2; Va. CoDE §16.1-266 (1980
Supp.); WASH. REV. CODE ANN. §13.34.090; W.Va. CoDE §49-6-2; Matter
of Chad S., 580 P.2d 983 (S.Ct. Okla. 1978); Crist v. Division of Youth and
Family Services, 1385 N.J. Super. 573, 343 A.2d 815 (App. Div. 1975); In
re Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973); Inre R.I., 455 Pa. 29, 312
A.2d 601 (1973); State v. Jamison, 251 Or. 114, 444 P.2d 15 (1968).

Several federal courts and a number of state courts have recognized
the need for court-appointed counsel even in cases where the deprivation
of child custody by the state is only temporary. Davis v. Page, 618 F.2d
374 (5th Cir. 1980); Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974); Smith
v. Edmiston, 431 F.Supp. 941 (W.D. Tenn. 1977); Roe v. Conn, 417
F.Supp. 769 (M.D. Ala. 1976) (court appointed counsel for child); Crist v.
Division of Youth and Family Services, supra; In re Welfare of Myricks,
85 Wash.2d 252, 533 P.2d 841 (1974); State ex rel. Lemaster v. Oakley, 203
S.E. 2d 140 (W.Va. 1974); In re Ella B., 30 N.Y.2d 352, 285 N.E.2d 288,
334 N.Y.S.2d 133 (1972).

18 During the 1979 term, this Court granted certiorari on a case
raising the right to court-appointed counsel for indigent parents on
appeal from a decision terminating parental rights. Matter of Otis, __
U.S. __, 100 S.Ct. 262 (1979). That case however was vacated and
remanded in light of a subsequent decision of the Ohio Supreme Court in
State ex rel. Heller v. Miller, 61 Ohio St. 2d 6, 399 N.E.2d 66 (1980). Jd.,
100 S.Ct. 1003 (1980).

7%

FY

20

Scott v. Illinois, 440 U.S. 367 (1979); Argersinger v. Hamlin,
407 U.S. 25 (1972). This case, and termination of parental
rights cases in general, present considerations that are as
compelling as in the criminal law relative to the need for
court appointed counsel. In termination of parental rights
cases, as in criminal cases, the state is the prosecuting
party. The individual subjected to either proceeding stands
against the awesome power and resources of the
government. In each instance, the indigent defendant is
without any meaningful resources to resist, absent the
assistance of competent legal counsel. While termination of
parental rights cases are deemed non-criminal, the
difference between labels of “criminal” and “civil” creates
no substantive distinction in and of itself. In determining
the parameters of due process, this Court has always looked
beyond labels to the fundamental interests at stake. Jn re
Gault, 387 U.S. 1, 49-50 (1967); McKeiver v. Pennsylvania,
403 U.S. 528, 541 (1971). In the criminal context, the
interest at stake is personal liberty from physical restraint.
Thus, the indigent person deprived of his physical freedom
for even one day is entitled to court appointed counsel. Scott
v. Illinois, 440 U.S. 367 (1979). While a day of jail time is a
substantial deprivation of personal freedom, it is hardly a
greater intrusion upon liberty than the total and
permanent severing of a parent’s right to the custody, care
and companionship of his or her children. Indeed, only
lengthy incarceration surpasses termination of the parent-
child relationship as a deprivation of a fundamental liberty
interest. See part I, supra.

In some respects, the need for a meaningful, counsel-
assisted trial is more crucial in termination of parental
rights cases than in criminal cases. The loss of liberty
associated with a criminal conviction is frequently
temporary, wheres the loss of liberty to a parent whose

: parental rights have been terminated is permanent and

irrevocable—the lost liberty will not be restored with time.
In a criminal case, a defendant has the important
additional safeguards of the highest burden of proof in the

21

law and aright to a jury trial. As is commonly the case, the
safeguard of a jury of peers is not available to parents in
North Carolina who are subjected to termination of
parental rights proceedings. N.C. GEN. STaT. §7A-
289.30(d) (1979 Supp.). Additionally, the criminal burden
of proof was not used to terminate parental rights in this
case. N.C. GEN. STAT. §7A-289.30(e) (1979 Supp.).
Typically, the standard of proof is either a preponderance
of the evidence or clear and convincing evidence."®
Furthermore, in a criminal case the statutory standard of
conduct against which the defendant’s conduct is measured
is very clear, a specific criminal act is either committed or
not.” By way of contrast, in termination of parental rights
proceedings, the facts under scrutiny are not isolated acts,
fixed in time, but complicated, on-going and inevitably
imprecise patterns of relationships among parent, child,
social service workers and other helping professionals.

A meaningful trial is crucial to the fundamental fairness
of termination of parental rights proceedings. The
interests of the parent are substantially more important
than the interests of the state. In fact, the deprivation of
liberty that occurs when parental rights are terminated is
in many respects more intrusive than that which occurs in
most criminal proceedings. In the absence of court
appointed counsel, the unrepresented indigent parent
runs a substantial risk that that most sacred of
relationships, the bond between parent and child, will be

‘9 The standard of proof in termination of parental rights proceedings
is presently under review by this Court. Doe v. Delaware, __. U.S.__,
100 S.Ct. 1336 (1980) (probable juris. noted).

20 Not only do criminal statutes direct themselves at concrete, socially
deviant types of conduct, thus providing a basis for statutory clarity, but
the vagueness doctrine has been applied to strike down those criminal
statutes that do not put the person of ordinary intelligence on notice as to
what behavior will run afoul of the criminal law. See, e.g., Papachristou
v. City of Jacksonville, 405 U.S. 156 (1972).

-

22

erroneously destroyed. In light of these considerations, the
procedural fairness required by due process dictates that
indigent parents be constitutionally entitled to court
appointed counsel to provide representation at trial.

III. THERE IS CURRENTLY AN INSUFFICIENT
NUMBER OF FREE COUNSEL AVAILABLE
TO REPRESENT INDIGENT PARENTS IN
TERMINATION OF PARENTAL RIGHTS
PROCEEDINGS WITHOUT JUDICIAL AP-
POINTMENT

The primary resources for the non-appointive legal
representation of indigents in civil proceedings, such as
termination of parental rights, are the legal aid programs
funded by the Legal Services Corporation (hereinafter
“Corporation”).2! Respondent has implied that there is no
need to find a right to appointed counsel in termination of
parental rights proceedings because free counsel,
presumably the programs funded by the Corporation, are
available. Respondent’s Brief in Opposition at 4. This is
erroneous for a number of reasons.

It should initially be noted, if only briefly, that such an
argument is meaningless given the constitutional issue
presented to this Court. Abby Gail Lassiter did not have
counsel appointed for her in her termination of parental
rights proceeding, despite her indigency. Her rights were
subsequently terminated. The issue of whether this
violated Abby Gail Lassiter’s Fourteenth Amendment
rights must be decided regardless of whether she could
have obtained counsel through the North Central Legal
Assistance Program, or through any other means.
However, it is also clear that the Corporation, .and its
grantee programs, do not have the capability to represent
all indigent parents in termination proceedings.

21 The North Central Legal Assistance Program, referred to in
Respondent’s Brief in Opposition, is funded by the Legal Services
Corporation. Legal Services Corporation, ANNUAL REPORT—FISCAL
YEAR 1979 33 (1980).

23

The Corporation was established in 1974 pursuant to an
act of Congress. 42 U.S.C. §2996, et seq. It is a non-profit,
federally chartered corporation which is charged with
distributing monies appropriated by Congress to grantee
organizations which are to provide free legal assistance to
low income persons. 42 U.S.C. §2996; 42 U.S.C. §2996f; 42
U.S.C. §2996i. The grantee organizations provide a wide
range of civil legal assistance.”

In fiscal year 1980, the Corporation was appropriated
$300 million by Congress.” This money was distributed to
321 grantee programs employing 5,028 attorneys.% The
eligibility population, according to the 1970 Census, came
to 29 million persons, not including an additional 1.5
million impoverished Native Americans and migrant farm
workers.» This breaks down to approximately two
attorneys for every 10,000 eligible clients.2* These are
clients who can and do present the attorneys with problems
ranging from dissolution of marriage to landlord/tenant
disputes requiring resolution using methods ranging from
negotiation to litigation. See Legal Services Corporation,
ANNUAL REPORT—FISCAL YEAR 1979 15-20 (1980). It is
thus not surprising that the resources of the programs are

2% See 42 U.S.C. §2996f(b) for a listing of the limitations on
representation of clients by grantees.

23 Legal Services Corporation, NEwWs 3 (September, 1980).

* Legal Services Corporation, SELECTED FUNDING AND STAFFING
CHARACTERISTICS OF FIELD PROGRAMS SUPPORTED BY THE LEGAL
SERVICES CORPORATION—START OF 1980—A FacT Book 1 (1980).

*% Legal Services Corporation, NEws 2 (September, 1980). Eligiblity
is based primarily on an income test with a maximum allowable income
of no more than 125 percent of the Office of Management and Budget
Official Poverty Line Threshold. 45 C.F.R. §1611.3(b).

2 Legal Services Corporation, NEws 3 (September, 1980).

#*

-%

24

strained. Indeed, a study sponsored by the American Bar
Association produced data indicating that nearly 25
percent, or seven million, of the nation’s poor face a civil
problem each year. But Corporation grantee programs can
handle less than 20 percent of these persons’ legal needs.”
Given this reality, it is impossible to argue that legal aid
organizations funded by the Corporation can assume the
role of representing all parents whose parental rights are
sought to be terminated.

It should also be noted that the existence of the Legal
Services Corporation and the grantee legal aid societies
depends entirely upon continuing appropriations from
Congress. If such appropriations would cease, no free legal
representation could be provided in any cases, including
termination of parental rights proceedings. It would
certainly be shortsighted to expect that such a structure
could uphold the constitutional interests involved in this
cause. It is thus clear that only through judicial
appointments of counsel can indigent parents in °
termination proceedings be assured of legal representa-
tion.

CONCLUSION

For the foregoing reasons, the judgment of the North
Carolina Court of Appeals should be reversed.

Respectfully submitted,

DONALD R. LUNDBERG
KENNETH J. FALK
Legal Services Organization
of Indiana, Inc.

107 North Pennsylvania Street
Suite 300
Indianapolis, Indiana 46204
317/639-4151

November, 1980

27 Legal Services Corporation, NEws 2 (September, 1980).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2676%3A11. Public record. Not legal advice.