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

Supreme Court brief1981

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NO. 79-6423

IN THE

Supreme Court of the United Stadea

OCTOBER TERM, 1980

ABBY GAIL LASSITER,

Petitioner,

DEPARTMENT OF SOCIAL SERVICES OF

DURHAM COUNTY, NORTH CAROLINA,

Respondent.

On Writ of Certiorari to the North Carolina Court of Appeals

BRIEF FOR THE STATE OF NORTH CAROLINA, AMICUS

CURIAE, JOINED BY THE ATTORNEYS GENERAL OF

DELAWARE AND MISSISSIPPI, AND THE STATES OF

FLORIDA, NEVADA AND ARKANSAS, AMICI CURIAE

RUFUS L, EDMISTEN

ATTORNEY GENERAL

STEVEN MANSFIELD SHABER

ASSISTANT ATTORNEY GENERAL

MEMBER OF THE

SUPREME COURT BAR

NORTH CAROLINA

DEPARTMENT OF JUSTICE

POST OFFICE BOX 629

RALEIGH, NORTH CAROLINA 27602

TELEPHONE: (919) 733-4618

ATTORNEYS FOR AMICUS CURIAE

RICHARD 5S. GEBELEIN

ATTORNEY GENERAL OF DELAWARE

AMICUS CURIAE

REGINA MULLEN SMALL

STATE SOLICITOR

820 NORTH FRENCH STREET

WILMINGTON, DELAWARE 19801

OF COUNSEL

ES I TES ER EYE ELI AM ES A ANGE: RRR EATS A OR

DICESARE ~ Printing — 331-4101 — Washington, D.C, 20006

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BILL ALLAIN

ATTORNEY GENERAL OF MISSISSIPPI

AMICUS CURIAE

JIM R. BRUCE

SPECIAL ASSISTANT ATTORNEY GENERAL

POST OFFICE BOX 220

JACKSON, MISSISSIPPI 39204

OF COUNSEL

JIM SMITH

ATTORNEY GENERAL OF FLORIDA

ATTORNEY FOR AMICUS CURIAE

SYONEY H. MCKENZIE

CHIEF TRIAL COUNSEL

FLORIDA STATE ATTORNEY GENERAL'S OFFICE

THE CAPITAL

TALLAHASSEE, FLORIDA 32301

OF COUNSEL

RICHARD R. BRYAN

ATTORNEY GENERAL OF NEVADA

ATTORNEY FOR AMICUS CURIAE

CLAUDIA K. CORMIER

DEPUTY ATTORNEY GENERAL

HEROES MEMORIAL BUILDING

CAPITAL COMPLEX

CARSON CITY, NEVADA 89710

OF COUNSEL

STEVE CLARK

ATTORNEY GENERAL OF ARKANSAS

ATTORNEY FOR AMICUS CURIAE

ROBERT R. ROSS

DEPUTY ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

JUSTICE BUILDING

LITTLE ROCK, ARKANSAS

OF COUNSEL

QUESTIONS PRESENTED BY AM/CUS CURIAE

Does the Due Process Clause of the Fourteenth

Amendment require that indigent parents be afforded

appointed counsel in cases brought by a state or its

subdivision seeking to terminate parental rights, and if

so, must counsel be appointed for indigent parents in

every such case?

Should a right to appointed counsel for indigent

parents in termination of parental rights actions

prosecuted by a state or its subdivision be given

retrospective application?

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE..... ccccccccccccccccccccccs

SUMMARY OF ARGUMENT ........cceeeeeeceeeeeeeeees

ARGUMIENT sccvsecdicecabecvesecdsesecesesovescecosons

AN INDIGENT’S CONSTITUTIONAL RIGHT TO

APPOINTED COUNSEL, ARISING UNDER THE DUE

PROCESS CLAUSE, IS LIMITED TO CASES OF

PERSONAL FREEDOM; THEREFORE, THE RIGHT DOES

NOT PERTAIN TO CIVIL ACTIONS BROUGHT TO

TERMINATE PARENTAL RIGHTS ...........eeeeeeees 4

A. Personal Freedom Underlies All Civil or Criminal

Cases Which Recognize a Due Process Right to

PE TONNE .n-i os eh aka bransseceb teh ee 5

B. The Right to Family Integrity, Which Is Part of a

Larger Right to Privacy, Is Important, But It Is

Meaningfully Less Important Than Personal

PUN ions ic besa eke cdaaparmatedaadaabeet es 9

C. The Balance of Relevant Factors Indicates that the

State Need Not Appoint Counsel for Indigent

Parents in Termination of Parental Rights Cases... . 12

1. The Private Interests Affected ............... 13

2. The Risk of Error and Usefulness of Appointed

CSUN oc icaavewhakads inacereoiameles 14

3. The Burdens on State Function and Resources . . 19

D. Appointed Counsel Would Not Be Needed in Every

Termination of Parental Rights Case ............. 21

A RIGHT TO APPOINTED COUNSEL FOR INDIGENT

PARENTS IN TERMINATION OF PARENTAL RIGHTS

CASES MUST BE GIVEN WHOLLY PROSPECTIVE EFFECT

cb su MH DN KCRG RARE eM ae we ase es Rice eee es cae oe 23

CAI ARISOE. avn pSaey kbs ccmsEeReR adhe ranahoubesse eer 25

ili

TABLE OF AUTHORITIES

CASES PAGE

Addington v. Texas,

UR A UT EEETED hcccccedocevecensspeeecesetos ves 8

Argersinger v. Hamlin,

a UE 0s bis.cc eu hed Vinck dos 00 nkde hears 6, 14

Bellotti v. Baird,

RM ns Soe s ehh tope ating 13

Boddie v. Connecticut,

gg TEE og Be TRS OR Ae irae eo 7, 10, 20

Brown v. United States,

Se RAE SEE cbc whecsenstectcccetsoebuneaseut 9

Caban v. Mohammed,

RN ce ee am at 10, 11, 25

Chambers v. District Court,

261 lowa 31, 152 N.W.2d 818 (1967) ............ eee 12

Chevron Oil Co. v. Huson,

ee ob ns a w/bd.d's oH ain coe eben hphce ey 24

Christ v. Division of Youth and Family Services,

128 N.J. Super. 402, 320 A.2d 203 (1974) ......... 12, 25

Davis v. Page,

Soe Fie oP 4 tery CU, TID i iic sv ccccviccccetbocsceds 12

Duval v. Duval,

114 N.H. 442, 322 A.2d 1 (1974) ..... cc cece cece eeees 12

Gagnon v. Scarpelli,

WIV GAA CPW PED oka rcse deen cvelnsis 7, 8, 14,21, 22, 23

Gideon v. Wainwright,

BEE We OU CUM |. Kehecasacccnredvectadeceetese 6, 24

PAGE

Goldberg v. Kelly,

th: BTU 000d seb snSewacappee wekanaenes 14

Griffin v. Illinois,

SSNS, TRUE Sid cbcokeititinioeieceaaee 5, 25

Griswold v. Connecticut,

ee Ey Se CUE tbo Cow desc ccccntscpewans-aenees 10

Grosjean v. American Press Co.,

Be Whee LOU, os picene 50 eavhtendenbaintaenn 6

Heryford v. Parker,

ae Fe Se CU GI. TINO cbc vcdcaccccccevtawenees 8

In re Adoption of R.1.,

fe Rr eS fF OT , Berra meer. 12

In re Brehm,

3 Kan. App.2d 325, 594 P.2d 269 (1979) ..........05. 12

In re Cager,

251 Md. 473, 248 A.2d 384 (1967) ......... cece eeeeee 9

In re Ella B.,

30 N.Y.2d 352, 334 N.Y.S.2d 113, 284 N.E.2d 288

WRU os ecacceice ce@uneeens au Ueyaump aaa eens 12

In re Friesz,

190 Neb. 347, 208 N.W.2d 259 (1973) ...........005- 12

In re Gault,

Be Mis CUED | ctv nwa Redes kawsdekeee Maes 7, 19, 24

In re Myricks,

85 Wash.2d 252, 533 P.2d 841 (1975) ...........0005 12

In re Simeth,

40 Cal.App.3d 982, 115 Cal. Rptr. 617 (1974) ......... 12

In re Smiley,

36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d

BE GUID |. y dawve nedcbasabk dunes sounelbaneaaguuuen 9, 20

PAGE

In re Welfare of Luscier,

84 Wash.2d 135, 524 P.2d 906 (1974) ...........0005 12

Jackson v. Indiana,

NS oo. oa see cines 0 60-0shs. ane ¥-e0 9h ns 8

Jolly v. Wright,

300 NIC; GS, 265 S.E.20 135 (1980) 0. cn cccccccsccenes i)

Kaufman v. Carter,

I hn ie wba ae we bus Kah eaes ewes 9, 24

Kiddie v. Kiddie,

563 P.2d 139, 85 A.L.R.3d 977 (Okla. 1977) ........ 9, 20

Linkletter v. Walker,

es a ehh coh aeenchsceien dales 23

Mathews v. Eldridge,

Me EIS coc da vedcccacecdacvecs. 12, 13, 19

Matter of Chad S.,

a ee SUN, BOUT 6s hace voce endasvdececccvas 12

Meyer v. Nebraska,

al id eae es dees sae weldle 10

Moore v. City of East Cleveland, Ohio

EG ns Sauce sce bhavaes 00.00 cud aebas 4

Morrissey v. Brewer,

ee eae lcccacnsswepbart 5,7

Otton v. Zaborac,

ee a AEE BOND ss S 'crc< s wb tbe pve cao eenes 9

Parham v. J.R.,

SR PETE cv cob ceebcceeecelbastinees 8, 14, 16

Parsley v. Knuckles,

Re Oe et 9

PAGE

Pierce v. Society of Sisters,

tie OU CU os ns ed sain crete 10

Planned Parenthood of Central Missouri v. Danforth,

Se ae ee TE 50 605 £660 ce Rees hcececubatnbae ess 13

Powell v. Alabama,

EAT MN BG... Coeacco edhe vie te aoe 5, 6

Quilloin v. Walcott,

COG LEG ee UE ohibesencensscbeekehudswvades 10, 11

Reist v. Bay County Circuit Judge,

396 Mich. 326, 241 N.W.2d 55 (1976) .........0.e0e. 13

Robinson v. California,

8 Cal. App.3d 783, 87 Cal. Rptr. 678 (1970) ........... 9

Roe v. Wade,

Se a RERUN) sp sNupentccntoeben Fan Vesbakees es 10

Rouse v. Cameron,

Se ae Oe Cass Ge COND hes bc catnepecensnestas 8

Scott v. Illinois,

WRI I ioc k vce cnbceddancsatess 6, 24

Smith v. Edmisten,

431 F. Supp. 941 (W.D. Tenn. 1977) .......0.ceeeees 12

Smith v. Organization of Foster Families,

Ge Lah ee OTE habe Cot ebsbGeredaneoeevascns 10, 11

Specht v. Patterson,

Pe es CREE. Un bi 4% bieh-cebsneea neues sewed dike 8

Stanley v. Illinois,

Ue WO TUPI Choy caseocvckesebbcaweenedes 10, 11

State v. Jamison,

251 Or. 114, 444 P.2d 15 (1968) ......... cece cece ees 12

Vil

State ex rel. Heller v. Miller,

61 Ohio St.2d 6, 399 N.E.2d 66 (1980) ........

Sword v. Sword,

399 Mich. 367, 249 N.W.2d 88 (1976) ........

Tetro v. Tetro,

86 Wash.2d 252, 544 P.2d 17 (1975) ..........

United States v. Cohen,

S50 F.2d 43 (SN Clive 1976) oc ccc esvcncccnse

United States v. Sturgis,

342 F.2d 328 (3rd Cir. 1965) ...........ee0e0.

Vitek v. Jones,

METI MUD TION oc hicdecandiddek eke

Wake County ex rel. Carrington v. Townes,

No. 8010DC1024 (North Carolina Court of

Appeals, filed Oct. 24, 1980 .........eeeeeeee

Wisconsin v. Yoder,

AR es vl aalseseca

CONSTITUTION

Se i ecw ieamlees

Sy eis idee eves ebaes on

Fourteenth Amendment ...............--

, >

STATUTES

Federal

28 U.S.C.

State

N.C.G.S.

Viii

PAGE

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ON ea ncekedsbsocescene 13

PUM OO nce eee cccccccees 1

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ST SD hGbehesicesabibeesee 7

GM eirhs cbecceesece ss 17

EE SAR ee see secec'srcccces 18

POE Boot osins codevccees 3, 11

8 ESE eee eee 22

7A-289.32 (1977 Cum. Supp.) ....... 13

7A-289.32 (1979 Cum. Supp.) ....... 2

DE Sukegecocceceseres 16, 22

EE anesepesdcascccces 14, 16

TE Ciincecccdocvcee ser 16, 22

Ae 22

TAMSVO, GE GOT, oc ccccccscccccces 13, 16

PET CUR Ua Ca va nwewscrcccee cis 16

eee a cat eb 6ss weer sseces 22

ITC TTEMAUAS bee cee cienscesee ss 16

PAGE

Tt got i) OORT ae arene gece 16

Le RN eh ale eo 16

NER MT ida ib bs dda ben dwckak 24

WE TURIN | ics cc 82GRE vine eho baveabas 1

MISCELLANEOUS

Code of Professional Responsibility of North Carolina

MU EE Sins Gh eMibd 40 Vee baknas ns SahbON habbamenecees as 18

North Carolina Department of Human Resources,

Division of Social Services. | Family Services Manual,

ARMM CUR es gure eG ack oduh dows 16

North Carolina Department of Human Resources,

Division of Social Services. Permanent Homes for North

Carolina’s Children: A Report on Permanency Planning

WE ABU TEE NCOUINUE YS PCIE 6 vo Ua's ootadehenedeenbaea a's 17

North Carolina Department of Human Resources,

Division of Social Services, Adoptions Section. Final

PN TI i kas 88s Fee oaks slice nee 17

Survey of Termination of Parental Rights Cases in North

CN GOMES ko cr od ined cueeehbn’ eobcubavcasens 18

NO. 79-6423

IN THE

Supreme Cour, of the United States

OCTOBER TERM, 1980

ABBY GAIL LASSITER,

Petitioner,

Vv.

DEPARTMENT OF SOCIAL SERVICES OF

DURHAM COUNTY, NORTH CAROLINA,

Respondent.

On Writ of Certiorari to the North Carolina Court of Appeals

BRIEF FOR THE STATE OF NORTH CAROLINA, AMICUS

CURIAE, JOINED BY THE ATTORNEYS GENERAL OF

DELAWARE AND MISSISSIPPI, AND THE STATES OF

FLORIDA, NEVADA AND ARKANSAS, AMICI CURIAE

INTEREST OF AMICUS CURIAE

At issue is the constitutionality of North Carolina’s

Termination of Parental Rights Law, N.C.G.S. 7A-289.22, et.

seq. (1979 Cum. Supp.) North Carolina’s Attorney General,

counsel for amicus curiae, is charged by law to defend the

constitutionality of State statutes. 28 U.S.C. §2403(b);

N.C.G.S. 114-2(1). The Attorney General is satisfied that the

termination law is constitutional, notwithstanding that it

does not provide for appointment of counsel for indigent

parents whose parental rights are challenged, and amicus

believes the statute is sound. Therefore, amicus wishes to

join in this case. Further, amicus believes that the rejection of

its position will have the following harmful effects. First, it

will be necessary once again to terminate the parental rights

of the Petitioner, Abby Gail Lassiter, which would delay,

perhaps for another two years, the prospect of adoption for

Petitioner’s child, William. Second, an adverse decision will

imply that a general right to appointed counsel for indigents

exists in all important civil matters. Third, and most

important, an adverse decision might be given retrospective

effect thereby upsetting numerous existing terminations and

adoptions.

SUMMARY OF THE ARGUMENT

As a matter of Due Process under the Fourteenth

Amendment, the right to appointed counsel for indigents

only exists in cases where the indigent’s personal physical

freedom—his “absolute liberty’’—is at issue. Thus, there is a

right to appointed counsel in criminal cases, juvenile

delinquency cases, and, often, involuntary commitment

cases for the mentally ill, but not in other cases.

The important right to family integrity is meaningfully less

important than the right to absolute personal liberty. Further,

while the core of the parent-child relationship is a bundle of

privacy rights, such as, for example, the right to instill one’s

own religious faith in one’s child, other aspects of the

parent-child relationship are traditionally and undeniably

public concerns. Parents have duties to children, among

them the duties to provide for their health and well-being,

the proper performance of which is as necessary to “ordered

liberty” in a democracy as are the private rights referred to

above.

The parents’ interest in family integrity is balanced by the

State’s compelling interest in protecting children. Moreover,

the child has interests in his safety and in a correct and speedy

determination of a termination of parental rights case, and

these interests weigh on the side of the State, because the

State is committed by law and tradition to act in what it

believes to be the best interest of the child. While the State

may be mistaken in a particular case, it is very unlikely that

the State will proceed against a parent in bad faith. However,

the same cannot be said of parents, who have both reasons

and the ability to resist the termination action for unworthy

motives.

North Carolina law provides safeguards to ensure accurate

fact-finding at termination of parental rights hearings.

Counties can only bring termination actions on certain

narrow grounds. N.C.G.S. 7A-289.32 (1979 Cum. Supp).

Counties do not institute termination proceedings (except in

cases of neglect by abandonment) without first attempting to

solve the family problem which might constitute grounds for

termination. The grounds for termination are not too

complicated for parents to understand, and even parents

who would have difficulty understanding the meaning of the

various grounds can reach that understanding during the

time the county department of social services works with

them to solve their problems. Furthermore, the issues in

termination cases are largely problems in social work

practice, and, as such, they may be entrusted to a significant

degree to professional social workers. Under these

circumstances, appointed counsel do not meaningfully

improve the fact-finding process.

With respect to the termination proceedings themselves,

the State enhances due process by requiring that findings of

fact be made on the basis of clear, cogent and convincing

evidence’ and by providing a guardian ad litem for the child

in cases where the parent answers. |

Given the balance of State and private interests and the

significant steps taken to protect the fact-finding process, any

burden on the State which follows from the appointment of

counsel for indigent parents is constitutionally significant.

Since the cost of parents’ counsel will be real and the parents’

attorney may be a source of delay, appointed counsel for

parents are not required.

If this Court requires appointed counsel in termination of

parental rights cases, the Court must hold that the need for

counsel should be determined on a case-by-case basis. If the

Court holds that indigent parents are entitled to appointed

counsel in termination cases, amicus respectfully urges the

Court that the decision should be narrowly drawn, so as not

to imply a right to counsel in other important areas of civil

law.

Equally important is the need for exclusively prospective

application of any new rule. No child who has been freed for

adoption, and certainly no child who has been adopted,

'This quantum of proof was adopted in 1979 subsequent to the trial of the

present case. N.C.G.S. 7A-289.30(e) (1979 Cum. Supp.).

should be forced to face the fear which would accompany

any attempt to overturn an existing termination for the

reason that the indigent parent involved was not

represented by court appointed counsel.

ARGUMENT

1. AN INDIGENT’S CONSTITUTIONAL RIGHT TO

APPOINTED COUNSEL, ARISING UNDER THE DUE

PROCESS CLAUSE, IS LIMITED TO CASES OF

PERSONAL FREEDOM; THEREFORE, THE RIGHT DOES

NOT PERTAIN TO CIVIL ACTIONS BROUGHT TO

TERMINATE PARENTAL RIGHTS.

Due process joins order to liberty, and the two are

symbiotically intertwined. The present case arises out of a

very important aspect of liberty, the parent-child

relationship. It lies on the cusp between the private aspects of

the family relationship, which are so important to liberty, and

the public aspect, which must be watched and protected in

the interest of order, generally, and the child’s welfare, in

particular.

It is too simple to say that the parent-child relationship is

fundamental to “ordered liberty” and, therefore, must be

protected by appointed counsel. What is fundamental is that

the child must have a safe home where he or she is cared for,

adequately educated and inculated with the necessary values

and principles underlying our society. While it is recognized

that the family is almost always best able to pass down our

“most cherished values, moral and cultural”, Moore v. City

of East Cleveland, Ohio, 431 U.S. 494, 504 (1977), it is the end,

not the means, which is fundamental to ordered liberty.

When—albeit rarely—a family cannot or will not rear its

children according to minimum civilized standards, the State

is compelled to rescue the child.

Only a part of the parent’s liberty is involved in a

termination of parental rights action. Thus, a termination

case differs from other decisions in this Court which

recognize a right to appointed counsel where absolute

personal freedom is involved. Further, when parental

conduct moves away from the private core of the parent-

child relationship and begins to touch the State’s duty to

protect the child, such conduct deserves somewhat less

constitutional protection than conduct which is wholly

private. Traditionally public aspects of the parent-child

relationship may be touched by the State for reasons and in

ways which could not constitutionally justify State

interference in the private core of family life. After all, “due

process is flexible and calls for such procedural protection as

the particular situation demands.” Morrisey v. Brewer, 408

U.S. 471, 481 (1972).

A. Personal Freedom Underlies All Civil or Criminal Cases

Which Recognize a Due Process Right to Appointed

Counsel.

The right to appointed counsel for indigent defendants

began as a constitutional rule of criminal law, Powell v.

Alabama, 287 U.S. 45 (1932), and it has never pulled loose

from its moorings. Nor should it, for criminal punishment

involves both an infringement of personal liberty and a

stigma which are above all others. Further, criminal

process—if abused—quickly and deeply undermines

democratic freedom. It is, therefore, easy to understand why

the right to be represented by counsel at a criminal trial is

among the fundamental rights expressly recognized in the

Sixth Amendment, while the common law right to retain

counsel in civil matters is not similarly affirmed.

There can be no doubt that the special nature of criminal

prosecutions is the principal reason for appointed counsel in

criminal cases.? In Powell v. Alabama, supra, the Court held

2Criminal trials are unique. “In criminal trials a State can no more

discriminate on account of poverty than on account of religion, race, or

color.” Griffin v. Illinois, 351 U.S. 12, 17 (1956) (Fourteenth Amendment

requires free transcripts for appellate review of criminal convictions).

that the right to appointed counsel in an unusual capital case

was among the “fundamental principles of liberty and justice

which lie at the base of all our civil and political institutions.”

287 U.S. at 67. Four years later, in Grosjean v. American Press

Co., 297 U.S. 233, 244 (1936), the “fundamental right of the

accused to the aid of counsel in criminal prosecutions” was

reiterated. When the right to appointed counsel was

extended to the states, Mr. Justice Black wrote:

The right of one charged with a crime to counsel

may not be deemed fundamental and essential to

fair trials in some countries, but it is in ours.

Gideon v. Wainwright, 372

U.S. 335, 344 (1963)

More recently, Argersinger v. Hamlin, 407 U.S. 25, 37 (1972),

held that no person may be imprisoned for any offense

without having been represented by counsel at trial. Viewing

Powell and Gideon in retrospect, this Court summed them

up, saying as follows:

[T]heir rationale has relevance to any criminal trial

where an accused is deprived of his liberty. Powell

and Gideon suggest that there are certain

fundamental rights applicable to all. . . criminal

prosecutions, even those. .. where the penalty is 60

days imprisonment.

Id. at 32 (emphasis added).

Plainly, in light of Argersinger, imprisonment for a crime is

the cornerstone supporting the right to appointed counsel.

Accord, Scott v. tllinois)440 U.S. 367 (1979).

Moving away from ctiminal prosecutions, the right to

appointed counsel becomes less absolute. At parole and

probation revocations, the right to counsel is not absolute

even though the revocation would deprive the defendant of

his personal freedom. This Court reasoned that the

defendant had already lost his “absolute liberty” by virtue of

his conviction and that what remained was “conditional

liberty.” Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973);

Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Because

something less than the defendant’s entire “bundle” of

liberties was at risk, an absolute right to appointed counsel

did not exist.

The analysis of appointed counsel in the civil context is,

even more complicated.

Civil lawsuits. . . are not like government

prosecutions for crime.... [T]he government is not

usually involved as a party,3 and there is no

deprivation of life, liberty or property as

punishment for crime. Our Federal Constitution,

therefore, does not place such private disputes on

the same high level as it places criminal trials and

punishment. There is consequently no necessity,

no reason, why government should in civil trials be

hampered or handicapped by the strict due process

rules the Constitution has provided to protect

people charged with crime.

Boddie v. Connecticut,

401 U.S. 371, 391 (1971)

(Black, J., dissenting).

Because of this constitutional difference between criminal

and civil cases, the right to appointed counsel has only been

extended to civil cases insofar as they resemble criminal cases

and carry both a real threat of incarceration and, in lieu of

punishment, a meaningful stigma.

In In re Gault, 387 U.S. 1 (1967), this Court held that a

juvenile respondent had a right to appointed counsel at a

delinquency hearing where he was threatened with the

prospect of commitment to training school. Id. at 554. Time

3In the present case, the Durham County government is plainly a party,

but only as a friend of the child, who would have no protection without the

county’s assistance. The county is like the other private persons who have

standing to bring petitions to terminate parental rights. See, N.C.G.S.

7A-289.24 (1979 Cum. Supp.).

and again in Gault, this Court emphasized the similarity

between delinquency proceedings and criminal trials,

between juvenile commitment and adult incarceration. Id. at

533, 538, 546, 547, & 551. Plainly, the close similarity between

criminal court and juvenile court was necessary to the

conclusion that counsel must be appointed.

Involuntary commitment of the mentally ill also involves

deprivation of absolute liberty and stigma‘ in lieu of

punishment. Therefore, for many purposes these hearings

partake of the nature of criminal trials.§ Analysis is

complicated somewhat by the fact that the leading cases’

involve the mental health treatment of criminal prisoners,

but for the purpose of this brief, amicus may say without

harm to its argument that a right to appointed counsel

probably attaches to involuntary commitment hearings,®

because it is plain from the cases in this Court that the right is

incident to a massive loss of personal liberty. Vitek v. Jones,

445 U.S. 480, 494 (1980) (plurality opinion) (‘‘mandatory

behavior modification”); Specht v. Patterson, 386 U.S. 605,

607 (1967) (sex offender found to be mentally ill “becomes

punishable for an indeterminate term’’).

Except in the cases above, there is no right to appointed

counsel for indigents. It is not even always available in the

criminal context. Gagnon v. Scarpelli, supra, (counsel at

parole or probation revocation depends on case-by-case

analysis). The prospect of summary criminal punishment in

cases of direct criminal contempt does not require

4Vitak v. Jones, 445 U.S. 480, 494 (1980).

5The prospect of punishment is not altogether absent. If one committed

for mental health treatment receives none, the hospital may be

transformed into a penitentiary. Rouse v. Cameron, 373 F.2d 451, 453 (D.C.

Cir. 1966). ;

‘However, proof beyond a reasonable doubt is not necessary to an

involuntary commitment. Addington v. Texas, 441 U.S. 418, 431 (1979). And

a juvenile may be placed in a mental hospital with limited procedural

formality, provided his parents concur. Parham v. J.R., 442 U.S. 84, 606-613

(1979).

Vitek v. Jones, supra, n.4; Jackson v. Indiana, 406 U.S. 715 (1972); Specht

v. Patterson, 386 U.S. 605 (1967).

8Heryford v. Parker, 396 F.2d 393, (10th Cir. 1968) (likelihood of

involuntary loss of liberty is “of utmost importance’”’).

appointment of counsel. See, Brown v. United States, 359 U.S.

41, 51 (1959). While there is a split of authority, the prospect of

incarceration for civil contempt is more often held not to

require appointment of counsel for the alleged contemnor,

except in complicated cases. Jolly v. Wright, 300 N.C. 83, 94,

265 S.E.2d 135 (1980); Sword v. Sword, 399 Mich. 367, 381, 249

N.W.2d 88 (1976); Duval v. Duval, 114 N.H. 422, 425-26, 322

A.2d 1 (1974). Contra, Tetro v. Tetro, 86 Wash.2d 252, 255, 544

P.2d. 17 (1975) (incarceration sine qua non); Otton v.

Zaborac, 525 P.2d 537 (Alaska 1974) (incarceration sine qua

non). Claims of a right to appointed counsel have been

rejected by courts in the domestic context, Kiddie v. Kiddie,

563 P.2d 139, 143, 85A.L.R. 3d 977 (Okla. 1977); In re Smiley, 36

N.Y.2d 433, 433, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975); Parsley

v. Knuckles, 346 S.W.2d 1,3 (Ky. 1961) (dicta), and in other civil

contexts. United States v. Cohen, 530 F.2d 43, 48 (5th Cir.

1976) (psychiatric exam ordered by court); United States v.

Sturgis, 342 F.2d 328, 332 (3rd Cir. 1965) (draft board hearing).

Finally, this Court previously faced the present question in

Kaufman v. Carter, 402 U.S. 954 (1971) (op. of Black, J., diss.

from den. of cert.). The Court, of course, denied certiorari,

thereby allowing to stand a California decision? denying

appointed counsel, which was decided on the express

ground that a termination case was a civil case to which no

right to counsel attached. In dissent, Mr. Justice Black took

the position that termination cases were substantially like

criminal cases. Amicus respectfully disagrees with Justice

Black’s opinion, but amicus accepts his mode of analysis. It is ,

in fact, the difference between criminal trials and

termination proceedings which eliminates the constitutional

need for appointed counsel at the latter.

B. The Right to Family Integrity, Which Is Part of a Larger

Right to Privacy, Is Important, But It ls Meaningfully Less

Important Than Personal Freedom.

The preceding section demonstrates that the right to

%Robinson v. California, 8 C.A.3d 783, 87 Cal. Rptr. 678 (1970). See, In re

Cager, 251 Md. 473, 485, 243 A.2d 384 (1967) (no right to counsel in

neglect/custody case).

appointed counsel depends not merely upon a deprivation

of some liberty or upon punishment, but rather upon the loss

of absolute personal freedom. Petitioner seeks to raise

herself to the level of these cases by establishing the

constitutionally “fundamental” nature of her right to

custody of William. In so doing, she relies on several

decisions of this Court, which, in the opinion of amicus, are

distinguishable in that they do not involve parents and

children,” lie at the private core of the parent-child

relationship," or involve First Amendment rights in addition

to the right to custody of children.'? Those cases which are

most closely on point stop short of saying all aspects of the

parent-child relationship are ‘fundamental’ and indicate

that the strength of a parent’s right may vary according to

parental conduct."

The best statement of the right to family integrity appears

in Stanley v. Illinois, 405 U.S. 645 (1972). The case holds that

the natural father of illegitimate children, whom he had

raised, was entitled to notice and an opportunity to be heard

before the children could be made wards of the State. This

Court condemned Illinois’ “procedure by preseumption,”

id. at 656-657, which denied Stanley any procedural rights

because his children were illegimate.'

In Stanley, this Court “emphasized the importance of the

family.” Id. at 651. In so saying, the Court relied on anumber

of substantive due process cases involving either mixed

questions of family relationships and First Amendment rights

or matters of sexual privacy. While certain of these

Smith v. Organization of Foster Families, 431 U.S. 817 (1977); Roe v.

Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). See

also, cases cited in Stanley v. Illinois, 405 U.S. 645, 561 (1972).

"Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268

U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

"Yoder v. Wisconsin, supra; Pierce v. Society of Sisters, supra.

3Stanley v. Illinois, supra, n. 11, at 651 (1972).

“Caban v. Mohammed, 441 U.S. 389, 392 (1979); Quilloin v. Walcott, 434

U.S. 246, 255 (1978).

Stanley is similar to Boddie v. Connecticut, 401 U.S. 371 (1971) in that the

Illinois presumption of unfitness entirely foreclosed Stanley's opportunity

to get into court to litigate custody of his children.

underlying cases speak of the ‘fundamental’ nature of the

family, which cannot be infringed except for compelling

reasons, Stanley stops short of this in applying procedural

due process to a question of parental fitness and child

custody. Stanley says that the ‘private interest’ of a man in

the children he has sired and raised warrants deference and

protection ‘‘absent a powerful countervailing interest.” /d. at

651. Accord, Quillion v. Walcott, 434 U.S. 246, 248 (1978).

However, Stanley also recognizes that “neglectful parents

may be separated from their children,” id. at 652, because the

State has a powerful interest in doing so. Stanley only

demands that neglectful parents be given notice and a fair

hearing. In short, though Stanley says a great deal, it says

somewhat less than Petitioner supposes. After its discussion

of the importance of familial rights, Stanley only imposes the

ordinary standard of procedural due process.

Following Stanley, this Court held in Quilloin v. Walcott,

supra, that a father of illigitimate children who had not raised

or legitimated his children could lose his children through

adoption without his consent upon a showing that this was in

their best interest and without a showing that he was unfit. /d.

at 255. Quillion means that substantive family rights depend,

in part, on parental conduct." Not only are a parent’s rights

in his children less than fundamental when the parent’s

harmful conduct is a traditionally fit subject of public

scruntiny, but they can atrophy.”

The foregoing cases mean that the _ parent-child

relationship—important as it is—is not so fundamental that it

naturally requires the extraordinary due process protection

of court-appointed counsel in order to be fundamentally

fair. Therefore, those lower court decisions in termination or

neglect proceedings which hold, without more subtle

analysis, that counsel must be appointed to protect the

‘Parental rights do not spring full blown from the biological

connection between parents and children. They require relationships

more enduring.” Caban v. Mohammed, supra, n.14, at 397 (Stewart, J.

dissenting).

"Compare, Smith v. Organization of Foster Families, 431 U.S. 816 (1977),

which holds that foster parents can, over time, acquire an interest in their

foster children which deserves rudimentary due process protection.

parents’ fundamental interest in their children are

mistaken."

C. The Balance of Relevant Factors Indicates that the State

Need Not Appoint Counsel for Indigent Parents In

Termination of Parental Rights Cases.

The triparte test for calculating the amount or quality of

procedural process which is due appears in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976).

First, the private interest that will be affected by the

official action; second, the risk of 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 requirements would entail.

The Mathews test shows that the State is not obligated to

provide appointed counsel to indigent parents in

termination of parental rights cases.

%’Smith v. Edmisten, 431 F.Supp. 941 (W.D. Tenn. 1977); State ex rel Heller

v. Miller, 61 Ohio St.2d 6, 399 N.E.2d 66, 67 (1980); In re Brehm, 3

Kan.App.2d 325, 594 P.2d 269 (1979); Matter of Chad S., 580 P.2d 983, 985

(Okla. 1978) (dicta); Reist v. Bay County Circuit Judge, 396 Mich. 326, 241

N.W.2d 55 (1976); In re Myricks, 85 Wash. 2d 252, 533 P.2d 341 (1975); Crist v.

Division of Youth and Family Services, 128 N.).Super. 402, 320 A.2d 203, 210

(1974); In re Welfare of Luscier, 89 Wash.2d 135, 524 P.2d 906 (1974); In re

Adoption of R.1., 455 Pa. 29, 312 A.2d 601 (1973); In re Friesz, 190 Neb. 347,

208 N.W.2d 259 (1973); In re Ella B., 30 NY.2d 352, 285 N.E.2d 288 (1972); State

v. Jamison, 241 Or.144, 444 P.2d 15 (1968) (dicta)

Other cases relied upon by Petitioner are distinguishable because they

rely on an underlying statute. Matter of Chad S., supra; In re Simeth, 40

Cal.App.3d 982, 115 Cal Rptr. 617 (1974); Chambers v. District Court, 261

lowa 31, 152 N.W. 2d 816 (1967) (dicta). Others involve child neglect

custody cases where, as is explained infra at 16, n. 40, the relationships

between parties are more complex and separate counsel for all parties are

more important. Davis v. Page, 618 F.2d 374 (Sth Cir. 1980); Smith v.

Edmisten, supra. Others involve continued representation on appeal. In re

Brehm, supra; Reist v. Bay County Circuit Judge, supra.

1. The Private Interests Affected.

Amicus has already weighed the parent’s interest in family

integrity. That interest is less weighty than personal freedom,

and it is not fundamental when questions of public concern,

such as minimally adequate care, are involved. Therefore,

that interest alone does not compel the State to appoint

counsel for indigent parents.

Applying the Mathews analysis to this case, the child’s

interest must be included in the calculation with the parent

or against him, as is appropriate. Ordinarily, the child’s

interest coincides with his parents’. See, Parham v. J.R., 442

U.S. 584 (1979). But, termination cases are not ordinary, and,

as these cases involve the child’s privacy, the State and the

child may combine their interests against those of the

parents. Bellotti v. Baird, 443 U.S. 622 (1979); Planned

Parenthood of Central Missouri v. Danforth, 428 U.S. 52

(1976).

In general terms, grounds for termination at the time in

question were parental failure to establish or maintain

concern or responsibility for the child, abuse, neglect,

illegitimacy coupled with gross paternal disinterest,

nonsupport for six months while the child is in institutional

custody, or failure for two years to make ‘‘substantial

progress” or a “positive response” toward correcting the

conditions that led to placing the child in foster care.”

Termination cases normally cannot be brought until the child

has been in county custody and care for at least six months.”

Thus, termination cases cannot be brought except where

there is well established reason to believe that grounds exists

and that the child’s best interests are served. This being so,

¥9N.C.G.S. 7A-289.32. (1977 Cum.Supp.)

While abuse, neglect or lack of parental concern or responsibility can

constitute immediate grounds for termination, in practice misconduct

serious enough to justify termination triggers a child custody action under

the separate procedures of N.C.G.S. 7A-516, et seq. (1979

Cum.Supp)[former N.C.G.S. 7A-277, et seq. (1977 Cum.Supp.)}] Once the

child is in custody, social services proceeds deliberately, first to restore the

family, and only if this is impossible, to develop a sound case for

termination.

the child’s own privacy interests weigh with the State, and

less process is due to the parent.

2. The Risk of Error and Usefulness of Appointed Counsel.

Lawyers are ill-suited to argue against their own usefulness

in any judicial proceeding. At the same time usefulness

obviously has not been the test for appointment of counsel;

had it been, attorneys would be appointed in all matters.

They are not, because the courts have indicated that the

nature of the forum,?' importance of the interest involved,??

and presence of alternative safeguards,?3 are also important

parts of the procedural due process calculation.

Looking at termination proceedings, we see that, while

they are judicial and not informal, they are also based on

fairly simple grounds. Almost always, the case involves a child

who has been in social services custody for some time and

parents who have been receiving social services. The parents

have had the opportunity to learn over time what acts,

omissions or conditions must be changed before the county

department can safely return their children. In practice,

then, social workers give meaning to the statutory grounds

for termination of parental rights, and parents have reason to

understand what is in issue.?4

Petitioner’s case illustrates this. Her parental rights were

terminated because she wilfully left her child in foster care

for two years without showing a positive response to Social

Services efforts to strengthen her relationship with William

or to plan for his future.25 Joint Appendix at 7. It is clear from

the transcript and the Joint Appendix that Petitioner knew, or

should have known, why her parental rights were in

"Goldberg v. Kelly, 397 U.S. 254 (1970); Parham v. J.R., supra.

2Coldberg v. Kelly, supra; Argersinger v. Hamlin, supra; Gagnon v.

Scarpelli, supra.

%Parham v. J.R., supra; Gagnon v. Scarpelli, supra

When we are dealing with due process rights other than in criminal trial

context, it is a “sufficient answer’ to the objection that a ‘‘hidden’’ defense

may be lost for want of a lawyer to say that it is not a criminal case. Gagnon

v. Scarpelli, 411 U.S. at 789.

%The ground relied upon is found at N.C.G.S. 7A-289.32(3) (1979

Cum.Supp.) Petitioner has never challenged this conclusion.

jeopardy. She had left her then eight-month old child,

William, malnourished, infected, and untreated by doctors.”6

Her own mother filed a neglect complaint against

netitioner?” and several times told county social workers she

could not raise William?*. After Petitioner's son entered

foster care, she saw him once at the behest of social services?9

and twice more by chance meeting on the street.3® She never

took any interest in him while he had been in foster care,3"

and although she was contacted in prison by social services,

she never initiated any contact with the department.??

Significantly, Petitioner understood the purpose of the

hearing33 and attempted to rebut this evidence. She denied

medically neglecting her son, and said she carried him to the

doctors for treatment. She and her mother denied that her

mother filed the neglect petition.45 She testified that her

efforts to see her son were thwarted by social services’

inattention.3¢ She cross-examined the social services’ witness

concerning the witness’ opinion that termination was in the

child’s best interest,3”7 and she offered her countervailing

theory that children naturally know and belong with their

family.3® In short, Petitioner presented the evidence she

needed, either on her own or in response to pertinent

questions by Respondent’s counsel, but was not believed.

Her present objection that the case against her was proved,

in part, by unauthenticated business records? forgets that

the judge was able to discount the hearsay if he found it less

credible than the live testimony, and assumes that the

%Transcript at 11.

27Transcript at 17.

Transcript at 14.

Transcript at 12; Joint Appendix at 6.

®Transcript at 12; Joint Appendix at 6.

Transcript at 22.

Transcript at 15-16; Joint Appendix at 6-7.

Transcript at 20.

MTranscript at 25.

Transcript at 30, 48 & 49.

%Transcript at 38 & 52.

37Transcript at 20 & 22.

%Transcript at 40.

The hearsay is, of course, competent, since there was no objection.

evidence could not have been authenticated and admitted

over objection. She also ignores the significant evidence

adduced from the orders in the earlier neglect hearing.”

Finally, the trial judge showed no bias against the

Petitioner;*' the court’s concern with precise questions was

meant to keep the Petitioner on track* not to lead or

impeach her.

This Court has recognized that fact-finding in special case:

can be fairly protected by means other than full-blown

judicial process. Parham v. J.R., supra. North Carolina

provides sisch safeguards in termination cases. Foremost is

good social work practice. North Carolina law prevents

termination except when the “‘parents have demonstrated

that they will not provide the degree of care which promotes

the healthy and orderly physical and emotional well-being of

the child.43 North Carolina leads the trend in social work

“Amicus wants the Court to be aware of the fact that since this case was

tried, North Carolina has added a provision to its Juvenile Code, N.C.G.S.

7A-516, et seq., (1979 Cum.Supp.) which provides appointed counsel for all

parents in abuse, neglect and dependency cases. N.C.G.S. 7A-587. Thus,

' parents are represented at the threshold litigation concerning child

custody. See, N.C.G.S. 7A-289.32(2), (3) & (4) (1979 Cum.Supp.).

Petitioner cites this change in law as ironic, but amicus urges the Court to

recognize that counsel for both parents and child [N.C.G.S. 7A-586] is more

important during abuse or neglect cases where, under the present system,

the county department of social services has statutory obligations both to

the child and the parent. N.C.G.S. 7A-516(3) & N.C.G.S. 7A-646 (1979

Cum.Supp.) When the county’s interests are divided, both parent and child

deserve independent protection. In termination cases, however, the

county’s attentions are not divided. It stands as a friend of the child, and the

parent stands apart.

“The judge summed up his role, saying, ‘| want to give you a fair try

(sic).”’ Transcript at 24.

“See, Transcript at 52.

49N.C.G.S. 7A-289.22(1)(1979 Cum. Supp.). State policy is ‘n accord.

“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. When such efforts fail

and removal of a child from his family becomes mandatory, careful

attention should be paid to selecting the type of care away from his family .

.. 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.” |

Family Services Manual, c. |V, 1200 (Rev. 75).

practice toward very selective but prompt use of termination

as a means of providing children with good permanent

homes.“

Turning to other precedural protections, North Carolina

takes a most important step toward protecting the child’s

interest in all cases wherein the parent files an answer by

appointing an attorney as guardian ad litem to represent the

child. N.C.G.S. 7A-289.29(b) (1979 Cum. Supp.). If an

independent, legally-trained participant is needed (in

“In a one-year pilot program involving eight counties, each county

assigned a reduced case load of 16 children to selected social workers. A

total of 370 children were involved, and 238 children returned home.

Another 59 were adopted. The remaining 73 were in long-term foster care,

pre-adoptive placement or likely soon to go home. The money savings

prompted four of the eight counties to hire additional social workers to

expand the program, and other counties are following suit. North Carolina

Department of Human Resources, Division of Social Services. Permanent

Homes for North Carolina’s Children: A Report on Permanency Planning

in an Eight County Project (1980).

The North Carolina Department of Human Resources, Division of Social

Services, maintains unpublished records showing the means by which

adopted children were made legally free for adoption:

Public Agency

All Final Public Adoptions Based on

YEAR Agency Adoptions Termination

1977 431 102

1978 479 125

1979 398 188

These same records show the elapsed time between termination and

adoption:

Time in Months Between Termination and Adoption

YEAR 0-6 7-12 13-18 19 & Over

1977 60 11 3 28

1978 65 23 10 27

1979 119 26 9 34

(The number of terminations shown here is lower than the number of

terminations shown at p. 18 because (1) these figures do not include 1980,

(2) these figures only show final adoption orders which usually are not

entered for one year after the adoption proceeding is begun, and (3) not all

terminations result in adoptions.)

addition to the judge) the guardian ad litem serves that end.

The Court must recognize the special ethical obligations of

government attorneys to seek justice, avoid unfair litigation

and treat all ligitants so as to avoid harm.*5 Here, frankly

reality reinforces ethics, because in local government legal

practice small staffs and high case loads combine to preclude

unmerited litigation.

Finally, amicus asks the Court to note that termination

hearings are recorded in every instance, N.C.G.S. 7A-

289.30(a) (1979 Cum. Supp.), and this is an important

safeguard against error or caprice. The State also asks the

Court to note that, subsequent to the trial of the present case,

North Carolina raised the quantum of proof in termination

actions to clear, cogent and convincing evidence. N.C.G.S.

7A-289.30(e) (1979 Cum. Supp.)

In light of these procedures and because appointed

counsel for parents would not bring any special knowledge

of social work, psychology or family therapy to atermination

proceeding, amicus insists that appointed counsel would not

be a significant addition to the factfinding process.

Practice in North Carolina seems to bear this out. A survey

of North Carolina county departments of social services

conducted in preparation for this argument indicates that

terminations cases are (1) always warranted and (2) not

significantly affected by the presence of counsel for the

parents. Of the 100 countries, 73 responded, including the

eight largest.

In the responding counties, 768 termination of parental

rights cases were brought between October, 1977 and

December, 1980. Parental rights were terminated 760 times

and not terminated eight times. In 127 of the cases, parents

were represented by counsel. Of these 127, parental rights

were terminated 120 times and not terminated seven times.

One parent successfully defended his parental rights himself.

4SCode of Professional Responsibility of the North Carolina State Bar,

Ethical Consideration EC7-9, EC7-10, EC7-11, EC7-13, EC7-14.

“Survey data appears in Appendix C. of Respondent’s Brief. Amicus is

aware of the potential weaknesses in research of this sort, and offers it only

in the absence of any published or regularly compiled data.

Looking at the seven cases where parents with counsel

prevailed, in five of them the court concluded that grounds

for termination existed but that termination would not be in

the child’s best interest.

In evaluating these figures it is good to remember that the

large majority of these cases were uncontested by the

parents. Although the exact figures are not known, it is likely

that the number of contested cases where parents were

without counsel does not much exceed the number of cases

where parents retained counsel.

Amicus finds the following implications in these figures.

First, social workers do not bring unfounded petitions to

terminate parental rights. Only .3% of the cases were without

grounds. This indicates that extra-judicial safeguards in

North Carolina work. Second, the presence of counsel does

not significantly affect the outcome, and insofar as it does,

the presence of counsel correlates with a finding that

termination, though authorized, is not in the child’s interest.

This correlation might be the result of a bias in favor of

affluent parents, who can afford counsel, or a bias in favor of

interested parents, who will take the added step of retaining

counsel. It is not necessarily a testament to the effectiveness

of counsel.

3. The Burdens on State Function and Resources.

The third part of the Mathews analysis requires a

calculation of the effect on the State. Given that the State is

cloaked with the child’s interest and that the fact-finding

process is inherently accurate, any burden on the State tips

the scales decisively in its favor.

As amicus understands this third part of the Mathews test,

the effect on State function is something different than the

effect on the State’s resources. The State’s exclusive function

in termination cases is the protection of the child. This is not a

quasi-criminal proceeding to vindicate society’s rights. This is

a pure parens patriae proceeding wherein the State is

protecting the physical well-being of a child.’ In fulfilling

47See, In re Gault, 387 U.S. at 16.

¥6,

this role, the State is not very different from private

child-placing agencies, parents and foster parents who may

also file termination cases. But if the State must provide

appointed counsel, then its function is subtly changed. The

State is made to appear to be acting in a quasi-criminal

fashion, acting to punish not to protect.

The State’s function will be affected in a second way if it

must appoint counsel in these plainly civil cases, which do

not involve personal freedom. The State is involved in much

civil litigation against persons, who may be indigent,

involving important liberty and property interests. If the

existing threshold between those cases which involve

absolute liberty and those which do not is crossed, then, as

Mr. Justice Douglas said in a related context. “I do not see the

length of the road we must follow.’’49 Given the (properly)

inexorable progress of the appointed counsel rule in criminal

cases, the State’s traditional position as an ordinary civil

litigant will be deeply undermined if Petitioner prevails here.

No matter how this Court emphasizes the special importance

of the parent’s liberty interest, the challenge will begin.%

Turning to the probable burden on State resources, the

State’s cost of supplying attorneys for indigent parents in

termination cases alone will be significant. In North Carolina,

judges set the fees for court appointed counsel, and, of

course, there is no precedent by which we can judge the cost

to the State. But given approximately 250 terminations a year,

Among these are actions in tort, to collect debts, to condemn property,

to foreclose tax liens, to revoke licenses, and others. Plainly, these can

affect a person’s home or means of livelihood. Some involve the possibility

of criminal liability. Their importance should not be gainsaid.

**Boddie v. Connecticut, U.S. at 385 (Douglas, J. concurring). See, also,

State ex rel. Hellerv. Miller, supra at 15 (Holmes, J. dissenting) (“Where will

the right to appointed counsel. . . at state expense end?”’).

*®The challenge has begun. In the wake of Boddie v. Connecticut, supra,

two courts have faced the question of appointed counsel in domestic

cases. Kiddie v. Kiddie, supra; In re Smiley, supra.

At this time in North Carolina, a case is pending which asks the State to

appoint counsel for respondents in paternity/child support actions. Wake

County e» rel. Carrington v. Townes, No. 8010 DC 1024 (North Carolina

Court of Appeals, filed Oct. 24, 1980).

fees of only a few hundred dollars per case would total over

$100,000. This is not de minimus, and there must be added to

it the additional administrative costs.

D. Appointed Counsel Would Not be Needed in Every

Termination of Parental Rights Case.

In response to the suggestion that appointed counsel are

always needed at parole and probation revocations, this

Court said:

While such a rule has the appeal of simplicity, it

would impose direct costs and serious collateral

disadvantages without regard to the need or

likelihood in a particular case for a constructive

contribution by counsel.

Gagnon v. Scarpelli,

411 U.S. at 787

Gangnon analyzed at least seven factors in weighing the

need for counsel: the purpose of the proceeding, its form

and formality, the interests served, the safeguards present,

the cost to the State, the existence of a “timely and

colorable” defense, and the fundamental fairness of the

procedures. We consider these factors seriatim.

First, as discussed above, termination actions are meant to

protect children, not punish parents. They arise after efforts

to restore the family have failed and, in this respect, are

analogous to Gagnon, where it is said that parole revocation

is a failure of rehabilitative efforts. Id. at 785. This Court

concluded in Gagnon that parole officers have professional

reasons to avoid unmerited revocations, and the same is true

of terminations, as is evinced by the North Carolina statistics

explained above.

Second, while termination actions are more formal than

parole revocations, it should be remembered that they

usually arise, as this one did, after the children have been

removed from the home, and parents have had the

opportunity to learn what is the matter. The procedure in

termination cases does not include the technicalities which

are present in criminal law, such as, for example, sufficiency

of a warrant, questions of double jeopardy, or motions to

suppress evidence. This reduces the need for counsel. See,

id. at 789. While it is true that an unrepresented parent will

not know the rules of evidence, he is singularly able to speak

to the facts which allegedly constitute grounds for

termination, and he does not have the added problem of

speaking to a jury. Nor is the hearing entirely formal. The

judge has considerable discretion at the disposition stage,

N.C.G.S. 7A-289.31 (1979 Cum. Supp.), in determining

whether the termination would be in the child’s best

interests, irrespective of the fact that grounds exist. It is

significant that the data shows that parents (even represented

by counsel) are more likely to prevail on this discretionary

ground than they are to rebut the county’s formal proof that

grounds for termination do exist.

The third, forth and fifth factors are analyzed above, and

need not be repeated. The question of a timely and colorable

defense is, however, a new matter. As to timeliness, it should

be noted as evidence of a need for a timeliness requirement,

that Petitioner utterly failed to answer the termination

petition filed against her. Her presence at the hearing was

entirely due to counsel for the Respondent. If this factor is to

be given weight, it would seem that, at a minimum, no right

to counsel attaches to a parent who neither answers nor

voluntarily appears at the hearing.

As to a colorable defense, Petitioner had one, her claim

that social services was not helpful. However, in many

circumstances, it is hard to conceive of a reasonable defense

or extenuating circumstances. Thus, if a child is neglected

because abandoned, N.C.G.S. 7A-289.32(2) (1979

Cum.Supp); N.C.G.S. 7A-517(21) (1979 Cum.Supp.), it is hard

to imagine a colorable defense. The same is true of an

illegitimate child who, though known to his father, has never

been legitimated or supported, N.C.G.S. 7A-289.32(6) (1979

Cum. Supp.), and of children left in foster care without being

given reasonable support. N.C.G.S. 7A-289.32(4) (1979 Cum.

Supp.). Finally, the Court must be aware of the fact that very

many terminations are uncontested.

As Gagnon recognizes, the final test of due process is

“fundamental fairness.” id. at 790. Given the balance of

interests among the child, its parents and the State, given that

termination is not desired except where rehabilitative efforts

have failed, and given the real financial and administrative

costs to the State, it is not unfair at all to require that a parent

answer the petition as a prerequisite to appointed counsel. It

is not unfair to demand that the parent suggest a substantial

defense to the action, something more than Petitioner’s

mistaken claim that children naturally know and love their

families or her frivolous claim that she had seen her son on

the street in addition to her only visit at the department of

social services. Actually, it is not fundamentally unfair to

proceed without appointed counsel at all.

il. A Right To Appointed Counsel For Indigent Parents in

Termination Of Parental Rights Cases Must Be Given

Wholly Prospective Effect.

Amicus is keenly aware that decisions by this Court

involving important personal rights are frequently given

retrospective application. Of course, this is not always so. Eg.,

Linkletter v. Walker, 381 U.S. 618 (1965). In its decisions

dealing with non-retroactivity, the Court has considered

three separate factors.

First, the decision to be applied non-retroactively

must establish a new principle of law, either by

overruling clear past precent upon which litigani

may have relied [citation omitted], or by deciding

an issue of first impression whose resolution was

will further or retard its purpose [citation omitted].

Second, it has been stressed that ‘‘we must... weigh

the merits and demerits in each case by looking to

the prior history of the rule in question, its purpose

and effect, and whether retrospective operation

will further or retard its purpose [citation omitted].

Finally, we have weighed the inequity imposed by a

retroactive application, for “... there is ample basis

in our cases for avoiding ‘injustice or hardship’

by a holding of nonretroactivity.” [Citation

omitted. ]

Chevron Oil Co. v. Huson,

404 U.S. 97, 106-107 (1971)

The third factor, ‘“‘hardship’’, alone precludes

retrospective application of any decision adverse to

Respondent and amicus, whether the decision calls for an

absolute right to counsel or one to be accorded on a case-by-

case basis. Retroactive application would threaten several

hundred adoptions in North Carolina, and thousands

nationally. In addition it would threaten even more

completed terminations where the child is in a pre-adoptive

placement or in well-settled long-term foster care. The mere

knowledge that a retrospective result was possible would

make adopted children and their new parents anxious.

Certainly, these people had no reason to suspect that an

adoption or termination would be vulnerable to a collateral

attack. To the contrary, the adoption statute indicates that

final adoptions are nearly impregnable, N.C.G.S. 48-28

(1976), and children, parents and agencies alike will have

relied on this. In light of this, retrospective application would

contradict the Court’s often expressed concern for the

realities of child placement and its understanding that a

child’s real present attachments are worthy of great

protection and deference. Eg., Quilloin v. Walcott, 434 U.S. at

244; Smith v. Organization of Foster Families. 431 U.S. at 844.

Turning to the other factors, we see that this is plainly a case

of first impression and one not clearly foreshadowed by this

Court. The contrary is the case, as is seen from the Court’s

emphasis on physical freedom as the touchstone of a right to

appointed counsel, Scott v. Illinois, supra; In re Gault, supra,

and its criminal, Sixth Amendment orgins, Gideon v.

Wainwright, supra; In re Gault, supra, coupled with the

Court’s decision ten years ago not to hear the issue. Kaufman

v. Crater, supra.

Finally, the history of the old rule, that counsel will not be

appointed in civil cases, runs to time out of mind. To change

that now, even in this single instance, is to rewrite history. On

the other hand, the purpose of the new rule, accurate

fact-finding in a matter of great importance, will not be

served because (1) the fact-finding is already inherently

accurate and amply protected, and (2) the importance of

relitigating a settled case and, just perhaps, returning a child

to natural parents is out-weighed by the need not to sunder

the child’s new family.

This Court has indicated that prospective application is

appropriate in similar circumstances. Eg., Caban v.

Mohammed, 441 U.S. at 416 (Steven, J. dissenting); Griffin v.

Illinois, 351 U.S. at 25 & 26 (Frankfurther, J. dissenting). So,

too, have other courts. Crist v. Department of Youth and

Family Services, 320 A.2d at 211. Amicus respectfully suggests

that this case is one where, if the Court makes new law, that

law should be explicitly prospective.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully urges

the Court to affirm the decision of the North Carolina Court

of Appeals and thereby reaffirm the traditional and

well-reasoned rule denying appointed counsel in civil

actions not involving personal freedom.

Respectfully submitted,

RUFUS L. EDMISTEN

ATTORNEY GENERAL

STEVEN MANSFIELD SHABER

Assistant Attorney General

North Carolina Department

of Justice

Post Office Box 629

Raleigh, North Carolina

27602

Telephone: (919) 733-4618

Member of the United States

Supreme Court Bar

ATTORNEYS FOR AMICUS

CURIAE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.