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101 S.Ct. 2153
68 L.Ed.2d 640
(Cite as:
452 U.S. 18, 101 S.Ct. 2153)
0
Supreme Court of the United States
Abby Gail LASSITER, Petitioner,
v.
DEPARTMENT OF SOCIAL SERVICES OF DURHAM COUNTY, NORTH
CAROLINA.
No. 79‑6423.
Argued Feb. 23, 1981.
Decided June 1, 1981.
Rehearing Denied Aug. 28, 1981.
See 453 U.S. 927, 102 S.Ct. 889.
The District Court, Durham County, Samuel F.
Gantt, J., terminated a mother's parental rights and appeal was taken. The North Carolina Court of Appeals, Robert
M. Martin, J., 43 N.C.App. 525, 259 S.E.2d 336 affirmed, and
certiorari was granted. The Supreme
Court, Justice Stewart, held that failure to appoint counsel for indigent
parents in proceeding for termination of parental status did not deprive parent
of due process in light of circumstances which included that petition contained
no allegations upon which criminal charges could be based, no expert witnesses
testified, case presented no specially troublesome points of law, and presence
of counsel could not have made a determinative difference for petitioner; such decision does not imply that
appointment of counsel is other than enlightened and wise.
Affirmed.
Chief Justice Burger filed concurring
opinion.
Justice Blackmun filed a dissenting opinion
in which Justice Brennan and Justice Marshall joined.
Justice Stevens filed dissenting opinion.
West Headnotes
[1]
Constitutional Law 
0251
92k251 Most
Cited Cases
Due process
has never been, and perhaps can never be, precisely defined. U.S.C.A.Const. Amend. 14.
[2]
Constitutional Law 
0251
92k251 Most
Cited Cases
Due
process expresses requirement of fundamental fairness. U.S.C.A.Const. Amend. 14.
[3]
Constitutional Law 
0252.5
92k252.5 Most
Cited Cases
Applying
the due process clause is an uncertain enterprise which must discover what
fundamental fairness consists of in a particular situation by first considering
any relevant precedents and then by assessing the several interests that are at
stake. U.S.C.A.Const. Amend. 14.
[4] Trial 
021
388k21 Most
Cited Cases
The
preeminent generalization that emerges from United States Supreme Court's
precedents on an indigent's right to appointed counsel is that such a right has
been recognized to exist only where the litigant may lose his physical liberty
if he loses the litigation. U.S.C.A.Const.
Amend. 6, 14.
[5] Trial 
021
388k21 Most
Cited Cases
As a
litigant's interest in personal liberty diminishes, so does his right to
appointed counsel. U.S.C.A.Const.
Amend. 14.
[6]
Constitutional Law 
0317(2)
92k317(2) Most
Cited Cases
There
is a presumption that an indigent litigant has a right to appointed counsel
only when, if he loses, he may be deprived of his physical liberty and the
other element of the due process decision, i. e., the private interest at
stake, the government's interest, and the risk that the procedures used will
lead to erroneous decision, must be balanced against each other and then
weighed against the presumption. U.S.C.A.Const.
Amends. 6, 14.
[7] Child
Custody 
022
76Dk22 Most
Cited Cases
(Formerly
285k2(1))
A
parent's desire for and right to the companionship, care, custody, and
management of his or her children is an important interest that undeniably
warrants deference and, absent a powerful countervailing interest,
protection. N.C.G.S. §§ 7A‑289.24,
7A‑289.25(6), 7A‑289.27, to 7A‑
289.30, 7A‑289.34, 7A‑587.
[8]
Infants 
0205
211k205 Most
Cited Cases
Parent's
interest in accuracy and justice of decision to terminate parental status is an
extremely important one. N.C.G.S.
§§ 7A‑289.24, 7A‑ 289.25(6), 7A‑289.27,
to 7A‑289.30, 7A‑289.34, 7A‑587.
[9]
Infants 
0194.1
211k194.1 Most
Cited Cases
(Formerly
211k194)
[9]
Infants 
0205
211k205 Most
Cited Cases
In a
proceeding to terminate parental status, the state shares with the parent an
interest in a correct decision, has a relatively weak pecuniary interest in
avoiding the expense of appointed counsel and cost of lengthened proceedings
his presence may cause, and, in some but not all cases, has a possibly stronger
interest in informal procedure. N.C.G.S.
§§ 7A‑289.24, 7A‑289.25(6), 7A‑289.27,
to 7A‑289.30, 7A‑289.34, 7A‑587; U.S.C.A.Const. Amends. 6, 14.
[10]
Infants 
0205
211k205 Most
Cited Cases
Complexity
of proceeding to terminate parental status and incapacity of uncounselled parent
could be, but would not always be, great enough to make risk of an erroneous
deprivation of parent's rights insupportably high. N.C.G.S. §§ 7A‑289.24,
7A‑289.25(6), 7A‑289.27, to 7A‑289.30,
7A‑289.34, 7A‑587; U.S.C.A.Const. Amends. 6, 14.
[11] Constitutional
Law 
0274(5)
92k274(5) Most
Cited Cases
If, in
a given proceeding for termination of parental status, the parent's interests
were at their strongest, the state's interests were at their weakest, and the
risks of error were at their peak, it could not be said that due process did
not require appointment of counsel. N.C.G.S.
§§ 7A‑289.24, 7A‑289.25(6), 7A‑289.27,
7A‑289.29, 7A‑289.30, 7A‑289.34,
7A‑ 587; U.S.C.A.Const.
Amend. 14.
[12]
Constitutional Law 
0274(5)
92k274(5) Most
Cited Cases
Constitution
does not require appointment of counsel in every parental termination
proceeding and decision whether due process calls for appointment of counsel
for indigent parent in such proceedings must be answered in first instance by
trial court subject to appellate review.
N.C.G.S. §§ 7A‑289.24 7A‑289.25(6),
7A‑289.27, 7A‑289.29, 7A‑289.30,
7A‑289.34, 7A‑ 587; U.S.C.A.Const. Amend. 14.
[13]
Constitutional Law 
0274(5)
92k274(5) Most
Cited Cases
Failure
to appoint counsel for indigent parents in proceeding for termination of
parental status didnot deprive parent of due process in light of circumstances which
included that petition contained no allegations upon which criminal charges
could be based, no expert witnesses testified, case presented no specially
troublesome points of law, and presence of counsel could not have made a
determinative difference for petitioner;
such decision does not imply that appointment of counsel is other than
enlightened and wise. N.C.G.S. §§
7A‑289.24, 7A‑289.25(6), 7A‑289.27,
7A‑289.29, 7A‑289.30, 7A‑
289.34, 7A‑587;
U.S.C.A.Const. Amend. 14.
[14]
Constitutional Law 
0305(1)
92k305(1) Most
Cited Cases
Fourteenth
Amendment imposes on state the standards necessary to ensure it that judicial
proceedings are fundamentally fair. U.S.C.A.Const.
Amend. 14.
[15]
Constitutional Law 
0251
92k251 Most
Cited Cases
A wise
public policy may require that higher standards be adopted than those minimally
tolerable under the Constitution. U.S.C.A.Const.
Amend. 14.
**2155 Syllabus [FN*]
FN* The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of Decisions for
the convenience of the reader. See United
States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287,
50 L.Ed. 499.
*18
In 1975, a North Carolina state court adjudicated petitioner's infant
son to be a neglected child and transferred him to the custody of respondent
Durham County Department of Social Services.
A year later, petitioner was convicted of second‑degree murder,
and she began a sentence of 25 to 40 years of imprisonment. In 1978, respondent petitioned the court to
terminate petitioner's parental rights.
Petitioner was brought from prison to the hearing on the petition, and
the court, after determining, sua sponte, that she had been given ample
opportunity to obtain counsel and that her failure to do so was without just
cause, did not postpone the proceedings.
Petitioner did not aver that she was indigent, and the court did not
appoint counsel for her. At the hearing, petitioner cross‑examined a
social worker from respondent, and both petitioner and her mother testified
under the court's questioning. The
court thereafter terminated petitioner's parental status, finding that she had
not contacted respondent about her child since December 1975, and that she had
"wilfully failed to maintain concern or responsibility for the welfare of
the minor." The North Carolina
Court of Appeals rejected petitioner's sole contention on appeal that because
she was indigent, the Due Process Clause of the Fourteenth Amendment required
the State to provide counsel for her.
The North Carolina Supreme Court summarily denied discretionary review.
Held :
1. The Constitution does not require the
appointment of counsel for indigent parents in every parental status
termination proceeding. The decision
whether due process calls for the appointment of counsel is to be answered in
the first instance by the trial court, subject to appellate review. Pp. 2158‑2162.
(a) With regard to what the "fundamental
fairness" requirement of the Due Process Clause means concerning the right
to appointed counsel, there is a presumption that an indigent litigant has a
right to appointed counsel only when, if he loses, he may be deprived of his
physical liberty. The other elements
of the due process decision‑‑the private interest at stake, the
government's interest, and the risk that the procedures used will lead to
erroneous decisions, *19Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18‑‑must
be balanced against each other and then weighed against the presumption. Pp. 2158‑2160.
(b) The parent's interest in the accuracy and
justice of the decision to terminate parental status is an extremely important
one (and may be supplemented by the dangers of criminal liability inherent in
some termination proceedings); the
State shares with the parent an interest in a correct decision, has a
relatively weak pecuniary interest in avoiding the expense of appointed counsel
and the cost of the lengthened proceedings his presence may cause, and, in some
but not all cases, has a possibly **2156 stronger interest in informal
procedures; and the complexity of the
proceeding and the incapacity of the uncounseled parent could be, but would not
always be, great enough to make the risk of an erroneous deprivation of the
parent's rights insupportably high.
Thus if, in a given case, the parent's interests were at their
strongest, the State's interests were at their weakest, and the risks of error
were at their peak, the Eldridge factors would overcome the presumption
against the right to appointed counsel, and due process would require
appointment of counsel. Pp. 2159‑2162.
2. In the circumstances of this case, the trial
judge did not deny petitioner due process of law when he did not appoint
counsel for her. The record shows, inter
alia, that the petition to terminate petitioner's parental rights contained
no allegations of neglect or abuse upon which criminal charges could be
based; no expert witnesses
testified; the case presented no
specially troublesome points of law;
the presence of counsel could not have made a determinative difference
for petitioner; she had expressly
declined to appear at the 1975 child custody hearing; and the trial court found that her failure to make an effort to
contest the termination proceeding was without cause. Pp. 2162‑2163.
43 N.C.App. 525, 259 S.E.2d 336,
affirmed.
Leowen Evans, Raleigh, N.C., for petitioner,
pro hac vice, by special leave of Court.
Thomas Russell Odom, Bolton, N.C., for
respondent.
*20 Steven Mansfield Shaber, Raleigh,
N.C., for state of North Carolina, as amicus curiae, by special leave of Court.
Justice STEWART delivered the opinion of the
Court.
I
In the late spring of 1975, after hearing
evidence that the petitioner, Abby Gail Lassiter, had not provided her infant
son William with proper medical care, the District Court of Durham County, N.
C., adjudicated him a neglected child and transferred him to the custody of the
Durham County Department of Social Services, the respondent here. A year later, Ms. Lassiter was charged with
first‑degree murder, was convicted of second‑degree murder, and
began a sentence of 25 to 40 years of imprisonment. [FN1] In 1978 the Department *21 petitioned
the court to terminate Ms. Lassiter's parental rights because, the Department
alleged, she "has not had any contact with the child since December of
1975" and "has willfully left the child in foster care for more than
two consecutive years without showing that substantial progress has been made
in correcting the conditions which led to the removal of the child, or without
showing a positive response to the diligent efforts of the Department of Social
Services to **2157 strengthen her relationship to the child, or to make
and follow through with constructive planning for the future of the
child."
FN1. The North Carolina Court of Appeals,
in reviewing the petitioner's conviction, indicated that the murder occurred
during an altercation between Ms. Lassiter, her mother, and the deceased:
"Defendant's mother told [the deceased] to 'come
on.' They began to struggle and
deceased fell or was knocked to the floor.
Defendant's mother was beating deceased with a broom. While deceased was still on the floor and
being beaten with the broom, defendant entered the apartment. She went into the
kitchen and got a butcher knife. She
took the knife and began stabbing the deceased who was still prostrate. The body of deceased had seven stab
wounds...." State v. Lassiter,
No. 7614SC1054 (June 1, 1977).
After her conviction was affirmed on appeal, Ms. Lassiter
sought to attack it collaterally.
Among her arguments was that the assistance of her trial counsel had
been ineffective because he had failed to "seek to elicit or introduce
before the jury the statement made by [Ms. Lassiter's mother,] 'And I did it, I
hope she dies.' " Ms. Lassiter's
mother had, like Ms. Lassiter, been indicted on a first‑degree murder
charge; however, the trial court
granted the elder Ms. Lassiter's motion for a nonsuit. The North Carolina General Court of
Justice, Superior Court Division, denied Ms. Lassiter's motion for collateral
relief. File No. 76‑CR‑3102
(Mar. 20, 1979.)
Ms. Lassiter was served with the petition and
with notice that a hearing on it would be held. Although her mother had retained counsel for her in connection
with an effort to invalidate the murder conviction, Ms. Lassiter never
mentioned the forthcoming hearing to him (or, for that matter, to any other
person except, she said, to "someone" in the prison). At the behest of the Department of Social
Services' attorney, she was brought from prison to the hearing, which was held
August 31, 1978. The hearing opened,
apparently at the judge's insistance, with a discussion of whether Ms. Lassiter
should have more time in which to find legal assistance. *22
Since the court concluded that she "has had ample opportunity to
seek and obtain counsel prior to the hearing of this matter, and [that] her
failure to do so is without just cause," the court did not postpone the
proceedings. Ms. Lassiter did not aver
that she was indigent, and the court did not appoint counsel for her.
A social worker from the respondent Department
was the first witness. She testified
that in 1975 the Department "received a complaint from Duke Pediatrics
that William had not been followed in the pediatric clinic for medical problems
and that they were having difficulty in locating Ms. Lassiter...." She said that in May 1975 a social worker
had taken William to the hospital, where doctors asked that he stay
"because of breathing difficulties [and] malnutrition and [because] there
was a great deal of scarring that indicated that he had a severe infection that
had gone untreated." The witness
further testified that, except for one "prearranged" visit and a
chance meeting on the street, Ms. Lassiter had not seen William after he had come
into the State's custody, and that neither Ms. Lassiter nor her mother had
"made any contact with the Department of Social Services regarding that
child." When asked whether
William should be placed in his grandmother's custody, the social worker said
he should not, since the grandmother "has indicated to me on a number of
occasions that she was not able to take responsibility for the child" and
since "I have checked with people in the community and from Ms. Lassiter's
church who also feel that this additional responsibility would be more than she
can handle." The social worker
added that William "has not seen his grandmother since the chance meeting
in July of '76 and that was the only time."
After the direct examination of the social
worker, the judge said:
"I notice we made extensive findings in June of '75
that you were served with papers and called the social *23 services and
told them you weren't coming; and the serious lack of medical treatment. And, as I have said in my findings of the
16th day of June '75, the Court finds that the grandmother, Ms. Lucille
Lassiter, mother of Abby Gail Lassiter, filed a complaint on the 8th day of
May, 1975, alleging that the daughter often left the children, Candina, Felicia
and William L. with her for days without providing money or food while she was
gone.''
Ms. Lassiter conducted a cross‑examination
of the social worker, who firmly reiterated her earlier testimony. The judge explained several times, with
varying degrees of clarity, that Ms. Lassiter should only ask questions at this
stage; many of her questions were
disallowed because they were not really questions, but arguments.
Ms. Lassiter herself then testified, under
the judge's questioning, that she had properly cared for William. Under cross‑examination, she said
that she had seen William more than five or six times after he had been taken
from her custody and that, if William could not be with her, she wanted him to
be with her mother since "He knows us.
Children know they family....
They know they people, they know they family and that child knows us
anywhere.... I got four more other
children. Three girls and a boy and
they know they little brother when they see him."
**2158 Ms. Lassiter's mother was then
called as a witness. She denied, under
the questioning of the judge, that she had filed the complaint against Ms.
Lassiter, and on cross‑examination she denied both having failed to visit
William when he was in the State's custody and having said that she could not
care for him.
The court found that Ms. Lassiter "has
not contacted the Department of Social Services about her child since December,
1975, has not expressed any concern for his care and welfare, and has made no
efforts to plan for his future." Because *24 Ms. Lassiter thus had
"wilfully failed to maintain concern or responsibility for the welfare of
the minor," and because it was "in the best interests of the
minor," the court terminated Ms. Lassiter's status as William's parent.
[FN2]
FN2. The petition had also asked that the
parental rights of the putative father, William Boykin, be terminated. Boykin was not married to Ms. Lassiter, he
had never contributed to William's financial support, and indeed he denied that
he was William's father. The court
granted the petition to terminate his alleged parental status.
On appeal, Ms. Lassiter argued only that,
because she was indigent, the Due Process Clause of the Fourteenth Amendment
entitled her to the assistance of counsel, and that the trial court had
therefore erred in not requiring the State to provide counsel for her. The North Carolina Court of Appeals decided
that "[w]hile this State action does invade a protected area of individual
privacy, the invasion is not so serious or unreasonable as to compel us to hold
that appointment of counsel for indigent parents is constitutionally
mandated." In re Lassiter,
43 N.C.App. 525, 527, 259 S.E.2d 336, 337. The Supreme Court of North Carolina summarily denied Ms.
Lassiter's application for discretionary review, 299 N.C. 120, 262 S.E.2d
6, and we granted certiorari to consider the petitioner's claim under
the Due Process Clause of the Fourteenth Amendment, 449 U.S. 819, 101
S.Ct. 70, 66 L.Ed.2d 21.
II
[1][2][3] For all its
consequence, "due process" has never been, and perhaps can never be,
precisely defined. "[U]nlike some
legal rules," this Court has said, due process "is not a technical
conception with a fixed content unrelated to time, place and
circumstances." Cafeteria
Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6
L.Ed.2d 1230. Rather, the phrase
expresses the requirement of "fundamental fairness," a requirement
whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is
therefore an uncertain enterprise which *25 must discover what "fundamental fairness" consists of
in a particular situation by first considering any relevant precedents and then
by assessing the several interests that are at stake.
A
[4] The pre‑eminent
generalization that emerges from this Court's precedents on an indigent's right
to appointed counsel is that such a right has been recognized to exist only
where the litigant may lose his physical liberty if he loses the
litigation. Thus, when the Court
overruled the principle of Betts v. Brady, 316 U.S. 455, 62
S.Ct. 1252, 86 L.Ed. 1595, that counsel in criminal trials need be
appointed only where the circumstances in a given case demand it, the Court did
so in the case of a man sentenced to prison for five years. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799. And thus Argersinger v. Hamlin, 407
U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, established that counsel must
be provided before any indigent may be sentenced to prison, even where the
crime is petty and the prison term brief.
That it is the defendant's interest in
personal freedom, and not simply the special Sixth and Fourteenth Amendments
right to counsel in criminal cases, which triggers the right to appointed
counsel is demonstrated by the Court's announcement in In re Gault,
387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, that "the Due Process
Clause of the Fourteenth **2159 Amendment requires that in respect of
proceedings to determine delinquency which may result in commitment to an
institution in which the juvenile's freedom is curtailed," the
juvenile has a right to appointed counsel even though proceedings may be styled
"civil" and not "criminal." Id., at 41, 87 S.Ct., at 1451
(emphasis added). Similarly, four of
the five Justices who reached the merits in Vitek v. Jones,
445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552, concluded that an
indigent prisoner is entitled to appointed counsel before being involuntarily
transferred for treatment to a state mental hospital. The fifth Justice differed from the other four only in declining
to exclude the "possibility that the required assistance *26 may be
rendered by competent laymen in some cases." Id., at 500, 100 S.Ct., at 1267
(separate opinion of POWELL, J.).
[5] Significantly, as a
litigant's interest in personal liberty diminishes, so does his right to appointed
counsel. In Gagnon v.
Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the
Court gauged the due process rights of a previously sentenced probationer at a
probation‑revocation hearing. In
Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593,
2599, 33 L.Ed.2d 484, which involved an analogous hearing to revoke
parole, the Court had said: "Revocation deprives an individual, not of the
absolute liberty to which every citizen is entitled, but only of the
conditional liberty properly dependent on observance of special parole
restrictions." Relying on that
discussion, the Court in Scarpelli declined to hold that indigent
probationers have, per se, a right to counsel at revocation hearings,
and instead left the decision whether counsel should be appointed to be made on
a case‑by‑case basis.
Finally, the Court has refused to extend the
right to appointed counsel to include prosecutions which, though criminal, do
not result in the defendant's loss of personal liberty. The Court in Scott v. Illinois,
440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, for instance, interpreted
the "central premise of Argersinger" to be "that actual
imprisonment is a penalty different in kind from fines or the mere threat of
imprisonment," and the Court endorsed that premise as "eminently
sound and warrant[ing] adoption of actual imprisonment as the line defining the
constitutional right to appointment of counsel." Id., 440 U.S., at 373, 99 S.Ct., at 1162. The Court thus held "that the Sixth
and Fourteenth Amendments to the United States Constitution require only that
no indigent criminal defendant be sentenced to a term of imprisonment unless
the State has afforded him the right to assistance of appointed counsel in his
defense." Id.,
at 373‑374, 99 S.Ct., at 1162.
[6] In sum, the Court's
precedents speak with one voice about what
"fundamental fairness" has meant when the Court has considered
the right to appointed counsel, and we thus draw from them the presumption that
an indigent litigant has a *27 right to appointed counsel only when, if
he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in
the due process decision must be measured.
B
The case of Mathews v. Eldridge,
424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, propounds three
elements to be evaluated in deciding what due process requires, viz., the
private interests at stake, the government's interest, and the risk that the
procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set
their net weight in the scales against the presumption that there is a right to
appointed counsel only where the indigent, if he is unsuccessful, may lose his
personal freedom.
[7] This Court's decisions have
by now made plain beyond the need for multiple citation that a parent's desire
for and right to "the companionship, care, custody and management of his
or her children" is an important interest that "undeniably warrants
deference and, absent a powerful **2160 countervailing interest,
protection." Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.
551. Here the State has sought not
simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of
deprivation. Cf. May v.
Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221; Armstrong v. Manzo, 380
U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. A parent's interest in the accuracy and injustice of the
decision to terminate his or her parental status is, therefore a commanding
one. [FN3]
FN3. Some parents will have an additional
interest to protect. Petitions to terminate parental rights are not uncommonly
based on alleged criminal activity.
Parents so accused may need legal counsel to guide them in understanding
the problems such petitions may create.
Since the State has an urgent interest in the
welfare of the child, it shares the parent's interest in an accurate and just
decision. For this reason, the State
may share the indigent parent's interest in the availability of appointed
counsel. *28 If, as our
adversary system presupposes, accurate and just results are most likely to be
obtained through the equal contest of opposed interests, the State's interest
in the child's welfare may perhaps best be served by a hearing in which both
the parent and the State acting for the child are represented by counsel,
without whom the contest of interests may become unwholesomely unequal. North Carolina itself acknowledges as much
by providing that where a parent files a written answer to a termination
petition, the State must supply a lawyer to represent the child. N.C. Gen.Stat. § 7A‑ 289.29
(Supp.1979).
The State's interests, however, clearly diverge
from the parent's insofar as the State wishes the termination decision to be
made as economically as possible and thus wants to avoid both the expense of
appointed counsel and the cost of the lengthened proceedings his presence may
cause. But though the State's
pecuniary interest is legitimate, it is hardly significant enough to overcome
private interests as important as those here, particularly in light of the
concession in the respondent's brief that the "potential costs of
appointed counsel in termination proceedings ... is [sic] admittedly de
minimis compared to the costs in all criminal actions."
Finally, consideration must be given to the
risk that a parent will be erroneously deprived of his or her child because the
parent is not represented by counsel.
North Carolina law now seeks to assure accurate decisions by
establishing the following procedures:
A petition to terminate parental rights may be filed only by a parent
seeking the termination of the other parent's rights, by a county department of
social services or licensed child‑placing agency with custody of the
child, or by a person with whom the child has lived continuously for the two
years preceding the petition. §
7A‑289.24. A petition
must describe facts sufficient to warrant a finding that one of the grounds for
termination exists, § 7A‑289.25(6), and the parent must be
notified of the petition and given 30 days in which to file a written answer to
it, *29 § 7A‑289.27. If that answer denies a material allegation, the court must, as
has been noted, appoint a lawyer as the child's guardian ad litem and
must conduct a special hearing to resolve the issues raised by the petition and
the answer. § 7A‑289.29. If the parent files no answer, "the
court shall issue an order terminating all parental and custodial rights ...;
provided the court shall order a hearing on the petition and may examine the
petitioner or others on the facts alleged in the petition." §
7A‑289.28. Findings of fact are made by a court sitting without a
jury and must "be based on clear, cogent, and convincing
evidence." § 7A‑289.30. Any party may appeal who gives notice of
appeal within 10 days after the hearing.
§ 7A‑ 289.34. [FN4]
FN4. The respondent also points out that
parental termination hearings commonly occur only after a custody proceeding in
which the child has judicially been found to be abused, neglected, or
dependent, and that an indigent parent has a right to be represented by
appointed counsel at the custody hearing.
§ 7A‑587.
Ms. Lassiter's hearing occurred before some of these
provisions were enacted. She did not,
for instance, have the benefit of the "clear, cogent, and convincing"
evidentiary standard, nor did she have counsel at the hearing in which William
was taken from her custody.
**2161 The respondent argues that the
subject of a termination hearing‑‑the parent's relationship with
her child‑‑far from being abstruse, technical, or unfamiliar, is
one as to which the parent must be uniquely well informed and to which the
parent must have given prolonged thought.
The respondent also contends that a termination hearing is not likely to
produce difficult points of evidentiary law, or even of substantive law, since
the evidentiary problems peculiar to criminal trials are not present and since
the standards for termination are not complicated. In fact, the respondent reports, the North Carolina Departments
of Social Services are themselves sometimes represented at termination hearings
by social workers instead of by lawyers. [FN5]
FN5. Both the respondent and the Columbia
Journal of Law and Social Problems, 4 Colum.J.L. & Soc.Prob. 230 (1968),
have conducted surveys purporting to reveal whether the presence of counsel reduces
the number of erroneous determinations in parental termination proceedings.
Unfortunately, neither survey goes beyond presenting statistics which, standing
alone, are unilluminating. The Journal
note does, however, report that it questioned the New York Family Court judges
who preside over parental termination hearings and found that 72.2% of them
agreed that when a parent is unrepresented, it becomes more difficult to
conduct a fair hearing (11.1% of the judges disagreed); 66.7% thought it became difficult to develop
the facts (22.2% disagreed).
*30
Yet the ultimate issues with which a termination hearing deals are not
always simple, however commonplace they may be. Expert medical and psychiatric testimony, which few parents are
equipped to understand and fewer still to confute, is sometimes presented. The parents are likely to be people with
little education, who have had uncommon difficulty in dealing with life, and
who are, at the hearing, thrust into a distressing and disorienting situation. That these factors may combine to overwhelm
an uncounseled parent is evident from the findings some courts have made. See, e. g. Davis v. Page,
442 F.Supp. 258, 261 (SD Fla.1977);
State v. Jamison, 251 Or. 114, 117‑118,
444 P.2d 15, 17 (1968). Thus,
courts have generally held that the State must appoint counsel for indigent
parents at termination proceedings. State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399
N.E.2d 66 (1980); Department of Public Welfare v. J. K. B.,
379 Mass. 1, 393 N.E.2d 406 (1979);
In re Chad S., 580 P.2d 983 (Okl.1978); In re Myricks, 85
Wash.2d 252, 533 P.2d 841 (1975);
Crist v. Division of Youth and Family Services, 128
N.J.Super. 402, 320 A.2d 203 (1974);
Danforth v. Maine Dept. of Health and Welfare, 303
A.2d 794 (Me.1973); In
re Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973). [FN6] The respondent is able to point to no
presently authoritative case, except for the North Carolina *31 judgment now before us, holding
that an indigent parent has no due process right to appointed counsel in
termination proceedings.
FN6. A number of courts have held that
indigent parents have a right to appointed counsel in child dependency or
neglect hearings as well. E. g., Davis v. Page,
640 F.2d 599 (CA5 1981) (en banc);
Cleaver v. Wilcox, 499 F.2d 940 (CA9 1974)
(right to be decided case by case); Smith v. Edmiston, 431
F.Supp. 941 (WD Tenn.1977).
C
[8][9][10] The dispositive
question, which must now be addressed, is whether the three Eldridge
factors, when weighed against the presumption that there is no right to
appointed counsel in the absence of at least a potential deprivation of
physical liberty, suffice to rebut that presumption and thus to lead to the
conclusion that the Due Process Clause requires the appointment of counsel when
a State seeks to terminate an indigent's parental status. To summarize the above discussion of the Eldridge
factors: the parent's interest is an
extremely important one (and may be supplemented by the dangers of criminal
liability inherent in some termination proceedings); the State shares with the parent an **2162 interest in a
correct decision, has a relatively weak pecuniary interest, and, in some but
not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the
incapacity of the uncounseled parent could be, but would not always be, great
enough to make the risk of an erroneous deprivation of the parent's rights
insupportably high.
[11][12] If, in a given case, the
parent's interests were at their strongest, the State's interests were at their
weakest, and the risks of error were at their peak, it could not be said that
the Eldridge factors did not overcome the presumption against the right
to appointed counsel, and that due process did not therefore require the
appointment of counsel. But since the Eldridge
factors will not always be so distributed, and since "due process is not
so rigid as to require that the significant interests in informality,
flexibility and economy must always be sacrificed," Gagnon v.
Scarpelli, 411 U.S., at 788, 93 S.Ct., at 1762, neither can
we say that the Constitution requires the appointment of counsel in every
parental termination proceeding. We therefore adopt the standard found appropriate
in Gagnon v. Scarpelli, *32 and leave the decision whether due
process calls for the appointment of counsel for indigent parents in
termination proceedings to be answered in the first instance by the trial
court, subject, of course, to appellate review. See, e. g., Wood v. Georgia, 450 U.S. 261,
101 S.Ct. 1097, 67 L.Ed.2d 220.
III
Here, as in Scarpelli, "[i]t is
neither possible nor prudent to attempt to formulate a precise and detailed set
of guidelines to be followed in determining when the providing of counsel is
necessary to meet the applicable due process requirements," since here, as
in that case, "[t]he facts and circumstances ... are susceptible of almost
infinite variation...." 411
U.S., at 790, 93 S.Ct., at 1764.
Nevertheless, because child‑custody litigation must be concluded
as rapidly as is consistent with fairness, [FN7] we decide today whether the trial judge denied Ms.
Lassiter due process of law when he did not appoint counsel for her.
FN7. According to the respondent's brief,
William Lassiter is now living "in a pre‑adoptive home with foster
parents committed to formal adoption to become his legal parents." He cannot be legally adopted, nor can his
status otherwise be finally clarified, until this litigation ends.
[13] The respondent represents
that the petition to terminate Ms. Lassiter's parental rights contained no
allegations of neglect or abuse upon which criminal charges could be based, and
hence Ms. Lassiter could not well have argued that she required counsel for
that reason. The Department of Social
Services was represented at the hearing by counsel, but no expert witnesses
testified and the case presented no specially troublesome points of law, either
procedural or substantive. While
hearsay evidence was no doubt admitted, and while Ms. Lassiter no doubt left
incomplete her defense that the Department had not adequately assisted her in
rekindling her interest in her son, the weight of the evidence that she had few
sparks of such interest was sufficiently great that the *33 presence of counsel for Ms. Lassiter could
not have made a determinative difference.
True, a lawyer might have done more with the argument that William
should live with Ms. Lassiter's mother‑‑but that argument was quite
explicitly made by both Lassiters, and the evidence that the elder Ms. Lassiter
had said she could not handle another child, that the social worker's
investigation had led to a similar conclusion, and that the grandmother had
displayed scant interest in the child once he had been removed from her
daughter's custody was, though controverted, sufficiently substantial that the
absence of counsel's guidance on this point did not render the proceedings
fundamentally unfair. [FN8]
Finally, **2163 a court deciding whether due process requires the
appointment of counsel need not ignore a parent's plain demonstration that she
is not interested in attending a hearing.
Here, the trial court had previously found that Ms. Lassiter had expressly
declined to appear at the 1975 child custody hearing, Ms. Lassiter had not even
bothered to speak to her retained lawyer after being notified of the
termination hearing, and the court specifically found that Ms. Lassiter's
failure to make an effort to contest the termination proceeding was without
cause. In view of all these
circumstances, we hold that the trial court did not err in failing to appoint
counsel for Ms. Lassiter.
FN8. Ms. Lassiter's argument here that her
mother should have been given custody of William is hardly consistent with her
argument in the collateral attack on her murder conviction that she was
innocent because her mother was guilty.
See n.1, supra.
IV
[14][15] In its Fourteenth
Amendment, our Constitution imposes on the States the standards necessary to ensure
that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards
be adopted than those minimally tolerable under the Constitution. Informed
opinion has clearly come to hold that an indigent parent is *34 entitled
to the assistance of appointed counsel not only in parental termination
proceedings, but also in dependency and neglect proceedings as well. IJA‑ABA Standards for Juvenile
Justice, Counsel for Private Parties 2.3(b) (1980); Uniform Juvenile Court Act § 26(a), 9A U.L.A. 35 (1979); National
Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 39
(1969); U.S. Dept. of HEW, Children's
Bureau, Legislative Guide for Drafting Family and Juvenile Court Acts § 25(b)
(1969); U.S. Dept. of HEW, Children's
Bureau, Legislative Guides for the Termination of Parental Rights and
Responsibilities and the Adoption of Children, Pt. II, § 8 (1961); National
Council on Crime and Delinquency, Standard Juvenile Court Act § 19 (1959). Most significantly, 33 States and the
District of Columbia provide statutorily for the appointment of counsel in
termination cases. The Court's opinion
today in no way implies that the standards increasingly urged by informed
public opinion and now widely followed by the States are other than enlightened
and wise.
For the reasons stated in this opinion, the
judgment is affirmed.
