Lassiter v. Department Of Social Services - Oral Argument

ORAL ARGUMENT OF LEOWEN EVANS, ESQ., ON BEHALF OF THE PETITIONER PRO HAC VICE

Chief Justice Burger: We'll hear arguments next in Lassiter v. the Department of Social Services.

Mr. Evans.

Mr. Evans: Mr. Chief Justice Burger, and may it please the Court:

The issue before the Court today is whether appointed counsel is a process that is due indigent parents when the state initiates actions to terminate their parental rights.

The State of North Carolina terminated the parental rights of Abby Gail Lassiter, an indigent imprisoned mother, without affording her the assistance of appointed counsel.

This contested proceeding was initiated and prosecuted by the State through its authorized official, the Durham County Department of Social Services, the respondent before this honorable court.

The respondent was represented by staff attorneys, and by a social worker.

In rendering its decision to terminate parental rights, the trial court expressly stated that it relied upon the testimony before the court and the record before the court.

The North Carolina Court of Appeals affirmed this decision, holding that the right to family integrity is a constitutionally protected right, that the State has invaded this constitutionally protected right, but that this invasion was not so serious or unreasonable as to compel the Court to hold that appointed counsel was a process that was constitutionally due the poor.

To the contrary, Mr. Justices, appointed counsel is a process that must be due if indigent parents are to be afforded an adequate opportunity to be heard in termination proceedings.

There is a per se need for appointed counsel because of the inherent risk that exists otherwise.

Unidentified Justice: Has this Court ever gone, counsel, ever gone beyond the criminal proceedings in requiring states to appoint counsel in particular proceedings?

Mr. Evans: No, Mr. Justice, not a purely civil proceeding.

This Court hasn't gone beyond... hasn't appointed counsel in a purely civil proceeding.

This Court has held that in a noncriminal proceeding, such as Gagnon, that the right to appointed counsel may exist.

Unidentified Justice: In re Gault is another one, isn't it?

Mr. Evans: Pardon?

Unidentified Justice: Gault, the Gault case?

Mr. Evans: Yes, yes, Your Honor, in Gault.

Unidentified Justice: And the State, at least, denominated that a noncriminal proceeding.

Mr. Evans: Yes, Mr. Justice.

And I... a plurality of the Court recognized in Vitek v. Jones the need for appointed counsel.

Unidentified Justice: Has the Court required appointed counsel in federal habeas corpus proceedings as a constitutional requirement?

Mr. Evans: I do not know, Mr. Justice.

Unidentified Justice: No.

The answer is, no.

Mr. Evans: All parties involved have a compelling reason to prevent erroneous terminations.

Unidentified Justice: Before we leave that, Mr. Evans, is it not inherent in the rationale of the Gault and the other cases that because the juvenile proceeding was so nearly a criminal proceeding, that the criminal safeguards in various respects had to be incorporated?

Isn't that the rationale?

Mr. Evans: I think, Mr. Justice, that was the rationale for Gault.

However, in Vitek v. Jones, the Court was dealing with the transfer of a prisoner to a mental institution involuntarily.

There was no question about his right to freedom from bodily restraint being involved there.

That right had already been extinguished and the majority of the Court recognized that there was a right to... I'm sorry... a plurality of the Court recognized there was a need for appointed counsel in those cases to protect the interests involved.

Practical considerations will not mitigate against the indigent parent's compelling need to be heard.

Specifically, the case at bench is distinguishable from the vast majority of civil cases.

Fiscal and administrative burdens involved do not justify the denial of such fundamental right.

Unidentified Justice: Well, now, I don't quite follow that.

You say that the Constitution protects family integrity?

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: And while you may or may not be right, there's certainly nothing in the explicit words of the Constitution that do protect that.

Mr. Evans: No.

Unidentified Justice: But the Constitution explicitly protects a person from being deprived of his property without due process of law, and that's what happens in the mine run, run of the mill civil case if the defendant loses.

He is deprived of his property, some of his property, if there's a judgment against him for money.

And therefore, why doesn't your argument apply in spades to every civil case?

Mr. Evans: Well, Mr. Justice, this case is distinguishable from the vast majority of civil cases under--

Unidentified Justice: Only in that this one does not involve something explicitly protected by the Constitution.

Mr. Evans: --Well, this Court has recognized, Mr. Justice, that the right to integrity of the family unit is a constitutionally protected right, a Fourteenth Amendment due process liberty interest.

Unidentified Justice: Well, but the... and that's by judicial decision of this Court, assuming you're correct.

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: But the Constitution literally and explicitly protects somebody from losing his property without due process of law.

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: So why isn't that an a fortiori case?

An ordinary run of the mill civil case?

Mr. Evans: Yes, Mr. Justice, but this case is distinguishable from that, Mr. Justice, on the weight of the liberty interest involved.

Unidentified Justice: You think that something that this Court has dreamed up is more weighty than something that's in the Constitution itself?

Mr. Evans: The right to one's children, the right to keep one's relationship intact with his child is more fundamental than property interests.

Unidentified Justice: Well, that has to be your argument, I expect, doesn't it?

Mr. Evans: Yes, Mr. Justice.

This Court has recognized that the right to integrity of the family unit is far more precious than property rights, comes that... this right comes to the Court with more respect than those liberties arrived from strictly economic arrangements.

Lower courts have recognized that the integrity of the parent child relationship may be more precious than freedom from bodily restraint.

Even some lower courts have recognized that the right to integrity of the parent child relationship is more precious than the right to life itself.

Unidentified Justice: Well, Mr. Evans, the Fourteenth Amendment says that no state shall deprive any person of life, liberty, or property without due process of law.

Do you think this Court is free to say that one is more important than the other, when the Constitution has equated them?

Mr. Evans: Yes, Mr. Justice, I think that this Court has recognized that liberty interests are more fundamental than property interests.

Unidentified Justice: Didn't Stanley v. Illinois say just that?

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: That there was a liberty interest in keeping the family together?

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: Stanley said that--

Mr. Evans: Right.

And Stanley said expressly that the liberty interest involved there was far more precious than property rights, and was more precious than those liberty interests derived from shifting the economic arrangements.

The lower courts have recognized a per se need for appointed counsel.

They justify this position on the fact that inherent risk cause erroneous terminations in such cases.

These inherent risks are that the poor be overborne by the resources of the state, that the final decision terminating parental rights will be based on incompetent and inadmissible evidence.

Thirdly, that existing procedural safeguards will be lost, and fourthly, that crucial factual disputes and complex issues will go unresolved.

The case at bench is certainly illustrative of each of these inherent risks.

Unidentified Justice: --Isn't each of those characteristics present in the civil case that Mr. Justice Stewart was putting to you?

Is that not a potential in every civil case?

Mr. Evans: The... not in every civil case, Mr. Justice.

In the majority of civil cases, you have private party initiating and prosecuting the action.

However, in the case at bench, we have the state initiating and prosecuting the action.

Unidentified Justice: What about a state condemnation action, where the state initiates an action to condemn so much of your property?

Mr. Evans: Yes, Mr. Justice.

In that situation you do have the state acting.

And you may well have to look to other aspects of this case for distinction, distinguishing this case from that case.

Now, this case can be distinguished from the vast majority of civil cases under each prong of the Mathews v. Eldridge analysis.

Under the first prong, the--

Unidentified Justice: Mr. Evans, let me go back to the prior question.

Suppose this case had been instituted by a foster parent, not the state.

Would you be here?

Mr. Evans: --In North Carolina, Mr. Justice, I believe so.

The initiation of the action by a private party there would be the only difference between that case and this case.

In a foster parent case you would have the state having a substantial interest in the outcome of the litigation.

You would have the state having a parens patriae duty to protect the best interests of the child, to protect the integrity of the family, and indeed you would have, if there's an answer filed in that case, if the indigent parent files an answer in that case, you would have the state appointing counsel to represent the child.

So in essence you would have a possibility of the very same case here.

An attorney for the child could very well be the adversary to the parent rather than an attorney for the state.

In distinguishing this case from the vast majority of civil cases, under each prong of the Mathews v. Eldridge analysis we can distinguish this case.

The first prong of the Mathews v. Eldridge analysis is the protectable interest implicated by the governmental action.

We've already discussed that this case deals with the government initiating and prosecuting an action.

In the vast majority of cases we simply do not have that.

This case deals with a basic human right, the right to integrity of the parent child relationship.

Unidentified Justice: Well, suppose, Mr. Evans, you had a profession that required a state license in order to practice, and a proceeding was brought to revoke, by the state, to revoke the practitioner's license and he were indigent.

Would your argument today apply in this case also?

Mr. Evans: Yes, Mr. Justice, I think so.

Unidentified Justice: You think so?

Mr. Evans: I think that my argument that this case would be distinguished from those cases would apply.

Unidentified Justice: On what ground would you distinguish it?

Mr. Evans: Again, the interest that is implicated.

In that case--

Unidentified Justice: That certainly would be... a license, what would it be?

A property interest, a liberty interest, or both?

Mr. Evans: --I would think that it could be either, but it would be distinguishable from this case on the weight of the interest involved.

This case deals with perhaps the most basic right known to man.

Unidentified Justice: Well, here's a man about to lose his livelihood.

He may no longer practice his profession.

Isn't that a rather significant interest?

Mr. Evans: Yes, Mr. Justice, and perhaps in future cases this Court may weigh the factors involved and decide that that should be protected.

Unidentified Justice: Well, then you do concede that if we agree with you in this case, we're not going to be able to contain it out of the principle to this kind of case.

We're going to have to face up to it in a lot of other types of cases, aren't we?

Mr. Evans: I would certainly think that the Court would have to face up to it but the Court definitely can distinguish this case from those cases.

It would not be automatic.

Unidentified Justice: Well, surely your rule would require that the child be represented?

Mr. Evans: Mr. Justice, certainly I think the child should be represented in these cases.

However, I am not sure as to whether this Court--

Unidentified Justice: I would think it would be a fortiori.

Mr. Evans: --Pardon?

Unidentified Justice: I would think it would be an a fortiori argument, At least the parent is an adult, and supposedly capable of representing himself.

I suppose guardians ad litem are really appointed because the child is a minor.

Is that right?

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: But your argument, I would think, would require the appointment of a counsel for the child.

Mr. Evans: The reason that a public counsel was granted, need to be granted in these cases, is that there's a constitutionally protected liberty interest that has been recognized by the courts, that needs to be protected.

Now, I recognize the--

Unidentified Justice: But that is a two way street, the integrity of the parent child relationship.

Mr. Evans: --Yes, but this Court has not recognized as of yet, Mr. Justice, that the child has a constitutionally protected right in the integrity of the family.

And that is a point of distinction.

Unidentified Justice: Mr. Evans, hasn't the State of North Carolina already recognized that and passed a statute giving counsel in juvenile hearings?

Mr. Evans: Yes, Mr. Justice.

The State of North Carolina does grant--

Unidentified Justice: Well, certainly if there was a relinquishment proceeding, where the parent was going to relinquish the child to the state, I would suppose your argument would be that the child would have to be represented?

Well, isn't that exactly what the statute says on page 20?

The new statute?

What is the statute in the Joint Appendix?

The Joint Appendix at page 20.

Mr. Evans: --Okay.

The new stat?

The Joint Appendix on page 20 or the brief?

Unidentified Justice: The Joint Appendix.

Mr. Evans: Okay.

That statute says, Mr. Justice, that in abuse and neglect and dependency cases, the right to appointed counsel will be granted to indigent parents.

Unidentified Justice: So they do recognize that where you're taking children from the parents, in some instances you're entitled to counsel?

Mr. Evans: Yes, Mr. Justice, it does.

Unidentified Justice: But what effect does that have on this case?

Mr. Evans: Well, Mr. Justice, it--

Unidentified Justice: If any?

Mr. Evans: --I think it shows that... a basic inconsistency.

The recognizing of the right to appointed counsel for parents, indigent parents, in abuse, neglect, and dependency cases in which the parental rights is faced with a temporary removal, but not recognizing the same right in a case in which the parental rights is faced with a total severance, certainly is inconsistent.

Unidentified Justice: And you're making an equal protection argument there?

This is the choice of the legislature, to provide counsel in that situation.

Now, are you suggesting it's going to have unequal protection, not to supply it here?

Mr. Evans: Mr. Justice, I think that there may even be an equal protection argument.

We do not reach that today.

The argument that we have made today is that the Due Process Clause requires appointment of counsel in these cases.

Unidentified Justice: What's the reach of this statute, Mr. Evans?

What is a juvenile petition?

What's that refer to?

A particular kind of proceeding or something?

Mr. Evans: Yes, an action that's filed in juvenile court.

Unidentified Justice: And which is not this case?

Mr. Evans: Yes, I think this--

Unidentified Justice: In this case?

Was this case brought by something called juvenile petition?

Mr. Evans: --Yes, the action was filed by a juvenile, or juvenile--

Unidentified Justice: Well, if that's so, why doesn't this statute apply then, as my brother Marshall suggested?

Mr. Evans: --Well, this statute was passed after the case at bench.

Unidentified Justice: Well, I know but, why shouldn't we send it back and ask your state courts to look at the case in light of that statute?

Mr. Evans: Right.

And it applies only in abuse, neglect, and dependency cases.

This is a termination case.

Unidentified Justice: Oh, I see.

Mr. Evans: And it does not apply.

Unidentified Justice: So this is limited, then?

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: With respect to that statute, Mr. Evans, it reads,

"In cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent, the parent has a right to counsel and to appointed counsel in cases of indigency, unless the parent waives the right. "

Does that suggest that even a parent who could retain counsel if he were not indigent, or she were not indigent, did not before the enactment of that statute have the right to appear by counsel?

Mr. Evans: I'm sorry, Mr. Justice.

Unidentified Justice: I mean, at those proceedings before the enactment of the statute, was anybody permitted to have an attorney?

Mr. Evans: Yes, Mr. Justice.

The right to retain counsel was granted at those proceedings, are granted at those proceedings.

All parties involved have a compelling reason to prevent the erroneous deprivations of parental rights.

The parent has a compelling interest of preventing a denial of her right to care, custody, and companionship to her child.

She has the compelling interest of maintaining the right to transfer cultural or religious and political values to the next generation.

The child loses his right to receive care, custody, and companionship and love from his mother, from his brothers and sisters, and from his grandparents.

The child also loses the right to receive its cultural, religious, and political heritage, or the cultural, religious, and political heritage of his people.

Unidentified Justice: Mr. Evans, you're arguing the right of the child, right now.

Was there a guardian ad litem in this case?

There was not, was there?

Mr. Evans: No, Mr. Justice.

Unidentified Justice: Would that also be constitutional error, in your view?

Mr. Evans: I think a guardian ad litem should be appointed, Mr. Justice, but I'm not sure--

Unidentified Justice: You think the Constitution requires... in other words, is it a necessary consequence of agreeing with you that we should appoint two lawyers in every parental termination case?

Mr. Evans: --No, Mr. Justice.

Unidentified Justice: Well, why not?

Because, why isn't the child's interest that you're just arguing now, also entitled to constitutional protection and be sure that there aren't arguments with regard to the child's interest that are possibly conflicting with the parents that might be overlooked in the proceeding?

Mr. Evans: I think, Mr. Justice, that the right should certainly be protected, but first the Court would have to recognize that the child's right to integrity of the family unit is a constitutionally protected right, and as of this point the Court hasn't recognized that.

Society... the state has a substantial interest in preventing erroneous deprivations also.

The state has the parens patriae duty to protect the best interests of the child.

The best interests of children simply are not protected by allowing erroneous deprivations of parental rights.

The state has a substantial interest in protecting the family unit.

The family unit is responsible for transferring sacred societal values such as morals, cultural beliefs, and political values.

The state cannot transfer these values and once the child is placed into foster case, then the state is confronted with the problem of, how do we prepare this child for his future obligations, such as these sacred values that are needed for a well rounded child in our society?

Unidentified Justice: Mr. Evans, when will this woman, the mother, be eligible for parole?

Mr. Evans: Next year, Mr. Justice.

Unidentified Justice: Next year.

I was wondering, you were talking about the family unit.

There is no family unit now.

Mr. Evans: Well, Mr. Justice, there is the grandmother in this case, who appeared at the termination of parental rights hearing, stated that she was willing to take this child and take care of the child.

She is presently taking care of petitioner's other four children, and certainly the... if the state had placed this child with the grandmother, then this child's parent child relationship could have remained intact.

This child's--

Unidentified Justice: That's all in the record?

Mr. Evans: --But this?

That is in the trial transcript.

Unidentified Justice: So there is in the transcript, and it's lodged here.

Mr. Evans: It is lodged.

Unidentified Justice: Thank you.

So, who is it that should have the appointed counsel?

The grandmother or the mother here?

Mr. Evans: The mother, Mr. Justice.

The state alleged that the mother did not make a constructive plan for the future of her child.

This indigent imprisoned mother made perhaps the only plan.

She asked that her child be placed with a member of the extended family.

An indigent imprisoned person cannot make any other plans, and must look to the family, its family, to help her.

And this plan would have been the most constructive plan for everybody involved.

It would have kept the parent child relationship intact; this lady is getting out in a year; she can come home to her family.

Unidentified Justice: Well, now you're addressing the proposition that the decision of the court was wrong.

It made a bad and unwise decision.

Mr. Evans: Yes.

Unidentified Justice: That's not before us, is it?

Mr. Evans: Well, Mr. Justice, that aspect of the case is before the Court from the perspective that the parent in this case lost certain procedural due process rights.

She lost her right to be able to present favorable evidence.

She had favorable defenses to present in this case.

Unidentified Justice: And the inference is that had she been represented by counsel those rights would have been preserved and not lost?

Mr. Evans: Yes, Mr. Justice.

Unidentified Justice: And the decision would have been right and not wrong?

Mr. Evans: Yes, Mr. Justice.

And there are three basic defenses that she had had that were meritorious, that certainly counsel could have presented for her.

Unidentified Justice: Did they allow her... was she paroled from prison in order to appear in the hearing?

Mr. Evans: She was brought to the hearing, Mr. Justice.

Yet she was unable to cross examine the social worker that testified against her.

The trial transcript indicates that she continually tried to testify while she was supposed to be cross examining.

The juvenile court continually admonished her to stop doing so, and finally she gave up her efforts to cross examine.

In the process she also gave up her right to contest the veracity of this proceedings.

Mr. Justice, I see that I have five minutes.

I would like to reserve the rest of my time for rebuttal.

Chief Justice Burger: Very well, Mr. Evans.

Mr. Odom.

ORAL ARGUMENT OF THOMAS RUSSELL ODOM, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Odom: Mr. Chief Justice Burger, and may it please the Court:

At the outset I would like to point out to you that under North Carolina law there are two different proceedings by which the Department of Social Services makes an effort to address family problems.

The statute provides, the statutory scheme provides that the Department of Social Services must investigate and to the extent necessary intervene in those cases where parents can no longer be presumed to be giving proper care and supervision to their children.

Those cases I will denominate custody cases which in addressing the statute that was called into question a few minutes ago I will also call abuse, neglect, and dependency proceedings.

It is this proceeding which represents the initial intrusion into the family unit, into what Mr. Evans would call the family integrity.

The child is still with the parents, the parents are presumed, as they are entitled to, to be providing proper care and supervision.

It comes to the attention of the Department of Social Services that they are not, and the Department brings this action to court.

Because it is the initial and most, I would argue, significant intrusion into the family unit, the Legislature of North Carolina has provided that both the parent and the child be provided with an attorney if they cannot afford one.

That is the purpose of the statute, Mr. Justice Marshall, that you asked about earlier.

Now, there is a different statutory scheme in North Carolina for the termination of parental rights.

That is a totally separate proceeding from the abuse, neglect, dependency custody proceeding.

Unidentified Justice: This statute quite definitely does not apply in that proceeding?

Mr. Odom: That is correct, Mr. Justice Brennan.

At the initial custody hearing, if the court determines that the child is to be removed and placed in the custody of the Department of Social Services, which is what happened in this case in May of 1975, the Department's interest tends to shift very subtly from that of parens patriae to in loco parentis.

The court has given the Department of Social Services certain responsibilities in providing for the interests of this individual child.

There are provisions in the law that are being refined constantly by which the court can direct both the parents and the Department of Social Services to work together to try to reunify this family, to put the child back into the home.

There are provisions in the law now that require that the custody decision that removed the child be reviewed every six months to make sure that the court's mandate is being followed.

Now, that did not happen in this case.

That statutory provision has been enacted subsequent to this.

But what happened in this case was that the family, once the child was removed from the home, the family abandoned this child, in foster care.

The mother testified that she had seen him once or twice, she had in fact visited with him once at the request of the social worker, but she had not seen him any other time.

And there was a period of more than a year from the time that the child was in fact removed from her custody until she went into prison, at which time or during which time you could presume that she had the freedom to make some contest or some--

Unidentified Justice: This was testimony at the hearing?

Mr. Odom: --Yes, sir.

Unidentified Justice: Without a lawyer?

Mr. Odom: Yes, sir.

It was... well, this record was before, the initial custody proceeding was tried before this very judge who looked back through the file and made a determination that--

Unidentified Justice: Did he have a right to do that?

Mr. Odom: --Yes, sir.

The juvenile--

Unidentified Justice: Well, was anybody there to contest whether he had that right?

Mr. Odom: --He has the right under North Carolina law.

Unidentified Justice: Well, I mean... what did the... could a lawyer contest that?

Mr. Odom: He could have contested it but it would have been a fruitless contest under North Carolina law.

Unidentified Justice: Well, then it's your point it wouldn't do them any good to have had a lawyer anyhow.

I hope you're not arguing that.

Mr. Odom: Well, I'm not going to stand here and argue the ineffectiveness of lawyers, but I'm saying that the statutory scheme on balance would make their effectiveness in this kind of proceeding minimal, as compared to the state's interest in not requiring by statute that they be appointed.

Unidentified Justice: Well, Mr. Odom, do I understand that presently, under your present law, there could not be a termination proceeding until there had first been a custody proceeding at which the custody was turned over to a state agency?

Mr. Odom: The Department of Social Services cannot initiate--

Unidentified Justice: Well, that's what I'm talking about.

Mr. Odom: --Until they had in fact been given custody by a court's--

Unidentified Justice: All right.

But now, under your present regime, under this new statute, the mother would have had counsel at the custody proceeding?

Mr. Odom: --That is correct, yes, sir.

Unidentified Justice: And, at least she'd have had counsel there?

Mr. Odom: Yes, that is correct.

Unidentified Justice: And she might have prevailed against the award of custody to the state agency, which would have meant there would never be a termination proceeding.

Is that correct?

Mr. Odom: That is correct.

Unidentified Justice: At least one initiated by the state agency.

Is that right?

Mr. Odom: That is correct.

Unidentified Justice: Well, then, there is some connection between this new statute and this case, isn't there?

Mr. Odom: Many judges tend to... if in fact, this case arose after the effective date of that statute in January of 1980, the court will continue the appointment of counsel so that if in fact the child is removed at a hearing at which the parent was represented, that the parent will have the benefit of continued--

Unidentified Justice: Later in the termination proceeding?

Mr. Odom: --If in fact it comes up in a termination court--

Unidentified Justice: Then, I do suggest there's some relevance of this new statute to this case.

Mr. Odom: --It can be construed in that fashion subsequent to the effective date, but of course this all started before then.

Unidentified Justice: Well, wouldn't the child have a right to counsel too?

Mr. Odom: Mr. Justice Rehnquist, what happened--

Unidentified Justice: Under the new statute, that's correct?

In a custody proceeding?

Mr. Odom: --He did under the old statute, and I'll explain why.

The Department, as I pointed out, takes on the role of in loco parentis, the parent role to the child, and is therefore presumed to be acting in the best interest of the child.

In the majority of these cases in the index to our brief we try to point out some statistics that we were able to find... that in the majority of these cases the Department has long since exhausted all other alternatives for reuniting the family, and that by the time they bring this action that is a hopeless cause.

In only two cases out of 768 did the court find in a termination action that there were no grounds for termination.

Unidentified Justice: But in this case there was testimony that the grandmother wanted the child?

Mr. Odom: But there was conflicting testimony, Mr. Justice Marshall, to the effect that the grandmother had in fact told the case worker in discussions about that, that she couldn't take care of the child.

There was a flat out contradiction--

Unidentified Justice: Well, one thing, as I understand it, is North Carolina says you need two counsel, one for the child and one for the parent in a temporary procedure.

But you don't need any for a permanent procedure?

Mr. Odom: --That is correct.

But the distinction here--

Unidentified Justice: What else do I need to rule against you than that?

Mr. Odom: --I think if you could understand what actually happened in practice, you could see why the interest of the state in not doing it is substantial enough to not require it, especially as a matter of constitutional law.

What generally happens as a result of the child being removed is that not only as a matter of state law--

Unidentified Justice: Well, what can I do generally?

I don't have the slightest idea what generally happens in North Carolina, but I do have a record of this case.

Mr. Odom: --Well, also in this record, Mr. Justice Marshall, is the uncontroverted fact that the woman made no effort to see the child after he was removed and--

Unidentified Justice: And it's also in this record, uncontroverted, that she didn't have counsel who could have told her that.

Mr. Odom: --When a parent's child, when this woman's child was removed from her, had she... she didn't even appear at the custody hearing which took the child away from her.

That's uncontroverted.

She was given two different notices of that hearing.

Unidentified Justice: What do you mean, uncontroverted?

Mr. Odom: It's uncontested.

Unidentified Justice: Well, how can she contest without a lawyer?

Mr. Odom: The point I'm making is that it is understood by everyone that she was given notice of the original hearing.

Unidentified Justice: Well, it's not to me, unless you show it to me in the record.

Mr. Odom: All right.

It's in the trial transcript, the fact that she did not appear and was given notice of the--

Unidentified Justice: Well, on page 16 of that same record, Appendix, Narrative of Testimony,

"Although Respondent stated to the Court that she had informed officials at the North Carolina Correctional Center for Women, officials at that institution. "

--those officials

"took no action to help respondent receive the assistance of legal counsel. "

Is that correct?

Mr. Odom: --I'm not sure under North Carolina--

Unidentified Justice: Is that correct?

Mr. Odom: --That's what it says; yes, sir.

Unidentified Justice: It has your signature on it.

I take it that your comment was directed at the earlier hearing?

Mr. Odom: Yes, sir, that was the comment--

Unidentified Justice: Not at the hearing that's in the transcript.

Mr. Odom: --In question now.

Unidentified Justice: Well, then you say, at the first hearing she waived this future hearing?

Mr. Odom: She waived her right to appear at that hearing and contest the removal of the child from her, Mr. Justice Marshall.

Unidentified Justice: Well, it says here she asked for help.

Mr. Odom: In this proceeding.

She... well, she didn't ask for help in this proceeding.

What she said was, Judge, I've been talking with this lawyer about post conviction proceedings for four months.

Give me some time to go talk to him.

Unidentified Justice: Did she... could you read what, hear what I said.

She asked the Correctional Center.

Mr. Odom: But she didn't ask the court--

Unidentified Justice: Well, she wasn't anyplace else but in jail.

She wasn't out walking down the street.

Mr. Odom: --She was brought to the hearing.

Unidentified Justice: This doesn't say it here.

Mr. Odom: Yes, it does.

Keep reading on down.

Unidentified Justice: Where does it say she was brought to the hearing on that paragraph?

I'm talking about the bottom of the first paragraph, which you agreed is the narrative of the testimony.

Mr. Odom: But it says that she stated to the Court... and she had to be present to the Court to state it... she was in fact brought to the hearing, but she didn't ask--

Unidentified Justice: This says that--

Mr. Odom: --She did not ask for an appointed counsel.

She gave testimony--

Unidentified Justice: --Now, this woman was in jail?

Mr. Odom: --She was but she was brought to the hearing.

Unidentified Justice: Well, was she in custody?

Mr. Odom: When she was brought to the hearing, yes, sir.

Unidentified Justice: Was she ever out of custody?

Mr. Odom: She has not been out of custody since--

Unidentified Justice: Well, how could she get a lawyer while she was in custody?

Mr. Odom: --She had a lawyer.

Unidentified Justice: For her criminal affair.

Mr. Odom: But she never bothered to mention to it to him.

If her right to this child was so fundamental, more precious than the right to life itself, it's inconceivable that she wouldn't have said--

Unidentified Justice: Is this a lawyer of her own choice or an appointed lawyer?

Mr. Odom: --It's retained counsel, Your Honor.

Unidentified Justice: Yes.

And he was retained for a criminal conviction.

Does this lawyer do civil practice?

Mr. Odom: Yes, sir.

Unidentified Justice: Well, where do I find that?

Mr. Odom: It's inconceivable that she could not have at least mentioned the proceeding to him.

She--

Unidentified Justice: To me it's unimportant whether she mentioned to "Ab-ab".

The point was, she mentioned it to the authorities and she couldn't do anything without the permission of those authorities in that prison.

She couldn't do anything without their permission.

Correct?

Mr. Odom: --She could write.

She could write.

Unidentified Justice: Well, how could she get a lawyer by writing?

Mr. Odom: She obtained one through her mother who--

Unidentified Justice: Well, where is he in this case?

He was hired for one deal, not for two.

Mr. Odom: --But she was communicating with him, and the big issue was that she had... and the point to be made from this is that if she in fact were so concerned--

Unidentified Justice: Did you at the hearing ask her why she didn't say it?

Mr. Odom: --No, sir, I never did.

Unidentified Justice: That's your answer.

So I don't know, because you didn't give me the information.

Mr. Odom: But she did say that she had never mentioned this proceeding to him but had been communicating with him throughout.

Unidentified Justice: She needed counsel.

Don't you agree she needed counsel?

Mr. Odom: No, sir, I don't think so.

Unidentified Justice: She... well, who was protecting her rights?

Do you think the state, in respect to this very question, do you think the state could have prevented her from having counsel?

Mr. Odom: No, sir, and we would not purport to even argue that.

Unidentified Justice: Well, I know, but suppose the state did, would it be unconstitutional to keep her retained counsel out of the hearing?

Mr. Odom: Yes.

I would--

Unidentified Justice: Why?

She doesn't need counsel.

Mr. Odom: --I'm not arguing that counsel would not have been effective in perhaps presenting testimony to the court.

I am saying that under the facts of the case this decision that was made in the trial court was correct.

Unidentified Justice: Well, following up your answer to Mr. Justice White's question, why couldn't the state say that neither retained nor appointed counsel shall represent anybody in these proceedings?

It's too destructive of the family relationship to have every incident magnified and made into an adversarial situation, so that we're simply going to conduct these hearing without any lawyers, because we think lawyers louse up families.

Mr. Odom: It's possible, I suppose, that the Legislature could do that, but I think it would fly in the face of an inherent presumption that in any kind of legal action that was in fact brought in a court of law, a person is entitled to appear by retained counsel.

Now--

Unidentified Justice: Well, that's a presumption fostered by the legal profession, but that doesn't make it constitutional.

Mr. Odom: --Well, I think it would be one that would be given a great deal of attention.

Unidentified Justice: Well, it certainly would because most judges are lawyers.

Mr. Odom: What would happen, I think, what would happen, the Legislature could do, in North Carolina, it could create an administrative body to make a determination as to whether or not the Department can make a decision as to whether the woman's rights to the child would be totally and permanently severed.

But they chose not to do that.

They chose to make it, in fact, a judicial proceeding to take out of the hands of the Department of Social Services the right to make that determination, and they did that because of the recognition of the Legislature of the importance of the family right.

Unidentified Justice: Mr. Odom, I just want to be clear.

I think you told me earlier, did you not, that under the present regime the custody aspect calls for counsel by statute, now must be provided?

Mr. Odom: Yes, sir.

Unidentified Justice: If that results in the transfer of custody to a state agency, which then initiates a proceeding to terminate the parental relationship, then counsel as a matter of practice, even though the statute doesn't require it, is provided at the termination hearing also?

Mr. Odom: I think as a practical matter the court tends to extend the appointment of counsel--

Unidentified Justice: Does the court... is the practice in fact to do it?

Mr. Odom: --My experience has been that some judges do and some judges don't.

There is some discrepancy from judicial district to judicial district.

Unidentified Justice: Thank you.

Mr. Odom, when a lawyer is appointed pursuant to the new statute and for an indigent, which, as the statute requires, is that lawyer paid by the state?

Mr. Odom: Yes, sir.

Unidentified Justice: Mr. Odom, let me follow through on one factual thing that disturbs me.

Does the record disclose whether between the removal in 1975 and the termination in 1978 a Department social worker ever contacted the petitioner or her mother?

Mr. Odom: Yes, it does.

Unidentified Justice: And what does it show?

Mr. Odom: It shows that she contacted the mother and discussed with her the idea of perhaps giving the child up for adoption or terminating her rights or asking her what she wanted to do with the child, and all she said was, I want the child to live with my mother.

The social worker then contacted the mother and... at least the transcript... this particular record does not, but Mr. Evans had the transcript lodged with the court... shows that the worker says she contacted the grandmother on several occasions and was told by the grandmother, I can't take care of the child.

Unidentified Justice: On several occasions?

Mr. Odom: That's what the transcript says; yes, sir.

Unidentified Justice: At least two times you said that she saw... only two times in the year she saw her son?

Was that the time she was in jail?

Mr. Odom: No, sir, that was prior to her going to jail.

Unidentified Justice: Well, I was reading the transcript and I have great difficulty with it.

Go ahead.

I'm going to finish reading this transcript.

Mr. Odom: I thought you had asked me a question.

Unidentified Justice: Yes, that's the question I asked you.

She was in jail the year before?

Mr. Odom: Immediately preceding.

But the first year after the child was removed from her custody, she was not in jail, for in fact, for some 13 or 14 months after he was removed and placed in a foster home, she was not in jail, she was out on the street.

Unidentified Justice: But the record says she was in jail.

At that time, you said, she didn't see him for the first year.

For the last year she only saw him twice.

Mr. Odom: What the transcript shows is that she hadn't seen him at all since he had been removed, but two or three times, those occurring when, in fact, she was out on the street.

Unidentified Justice: Well, I'll take a look at it and give you the benefit of the doubt.

Mr. Odom: In fact, though, the petition was brought on two grounds and the court concluded as a matter of law that she had failed to maintain concern or responsibility as to the child's welfare.

And I would submit to the court that the fact that a parent is in prison does not prevent them from maintaining concern or responsibility as to the child's welfare.

And she had made no effort to do that.

Now, I wouldn't argue that it would have prevented a finding that she had willfully abandoned him, and that was not alleged in this case.

I think, in trying to sum up, the obverse of the problem that we're struggling with is, if this Court requires the appointment of counsel in a civil action as a matter of constitutional law, the Court will be hard pressed to limit it and will be placed in the position, from here on, of making a determination as to what right is most fundamental enough to require it, and those that are not fundamental enough to require it.

Unidentified Justice: Mr. Odom, you personally, as... what?

The Assistant County Attorney?

Mr. Odom: Yes, sir.

Unidentified Justice: --was assigned to this case and you were there from the beginning to the end?

Mr. Odom: Yes, sir.

Unidentified Justice: Thank you.

Mr. Odom: Thank you.

Chief Justice Burger: Mr. Shaber.

ORAL ARGUMENT OF STEVEN MANSFIELD SHABER, ESQ., ON BEHALF OF NORTH CAROLINA AS AMICUS CURIAE

Mr. Shaber: Mr. Chief Justice, and may it please the Court:

Perhaps I might begin, Justice Rehnquist, by following up on your question about whether or not the state could dispense with counsel altogether in these hearings.

And frankly, sir, I think not, notwithstanding Parham v. J.R. And the reason I think not is that the degree of importance that's attached to the family relationship in Stanley v. Illinois and the other child custody cases is such that the Court would not be able to hold that counsel could be barred from the hearings.

Justice Brennan, you asked if counsel that are appointed in neglect cases carry over?

Mr. Odom says that in practice they sometimes do.

It is not the position of the state that they necessarily are entitled to carry over, although that is the practice of many state district court judges.

The question simply has not been addressed in North Carolina law.

Unidentified Justice: Has there been any effort to have the Legislature address it?

I just wonder, why the distinction between the custody and the termination procedures?

Mr. Shaber: Your Honor, I can suggest a couple of possible distinctions.

I should say more than possible; I think they are the distinctions.

First is this, that the intrusion at the time of the neglect hearing is really the more important intrusion because that's what separates a child from the parent and disrupts the care and companionship of the child.

That's what really sunders the family, and from that point on what the parent has is not an interest in the companionship of the child but the expectation that with the help of the state the child may come back some time in the future.

That interest is a much lower interest.

The second point is this, that the County Department of Social Services being charged with this obligation to try and restore the family, and having this obligation not only from the time of the neglect hearing on, but prior to the neglect hearing, finds itself in sort of a conflict of interest situation.

It's supposed to protect the child on one hand and on the other hand it's supposed to try and put the family back together.

And one way to keep the County Department of Social Services out of trouble given this inherent conflict in its responsibilities is to appoint an attorney for the child and an attorney for the parent, and that's what the state does.

The third point, I think, is that very often, although not always, the neglect... sir?

Unidentified Justice: May I just interrupt?

Why isn't the same conflict present at the termination hearing?

Mr. Shaber: By the time the termination hearing comes along, Justice Stevens, the County Department of Social Services has made a decision that the child cannot go home and should not go home.

It no longer has an obligation to try and restore that family.

It is exclusively concerned with trying to protect the best interests of the child throughout the rest of its life.

And so it's not divided; it no longer has--

Unidentified Justice: It's kind of ironic, because at the first hearing it has a greater interest in the parent's side of the potential controversy and yet the parent has an independent right to counsel.

At the second hearing nobody speaks for the parent except a parent who, presumably, sometimes cannot do so effectively.

Mr. Shaber: --Yes, sir, Your Honor, I concede the irony in that, and I would nevertheless suggest that the reason is that by the time you get to the termination action, the state's interest is really not readily distinguishable from the interest of any other private person who under the termination statute might also have had standing to bring a termination of parental rights action.

Once the state... it settles in civil cases generally... the state stands as a private litigant and may bring its resources to bear against its opponent.

And when you eliminate that conflict of interest--

Unidentified Justice: But there are very few civil situations in which a state sues indigent litigants.

Mr. Shaber: --Your Honor, proportionately, yes, but in fact I think it's not uncommon.

Condemnation cases would be a--

Unidentified Justice: By hypothesis, somebody who owns a lot of real estate normally is not indigent.

Mr. Shaber: --Your Honor, I do a lot of food stamp law and AFDC law, and I find a lot of people with a small parcel of property who have nothing else, and their prospect would be, mortgage the property.

And perhaps they couldn't do that because of flaws in the title and so on, or don't eat.

So, I think that there are indigent persons who nonetheless would be subject to a property condemnation hearing.

Unidentified Justice: Well, I take it, anyway, Mr. Shaber, your Legislature has never expressly addressed the question, why not also counsel at the termination hearing?

Mr. Shaber: Your Honor, Mr. Odom includes in the appendix to his brief two bills which did go before the General Assembly but which did not pass.

Unidentified Justice: I see.

Mr. Shaber: I ought to tell the Court at this juncture that I have also drafted a bill which I understand will be submitted at this session.

It was drafted at the behest of certain members of the General Assembly.

Whether or not it will pass I do not know.

Unidentified Justice: Is it also true that there are a great many more custody hearings than there are termination hearings?

Mr. Shaber: Very many more.

Unidentified Justice: So the Legislature might have been more aware of the problem there?

Mr. Shaber: Yes, sir, that is a possibility, but I don't know--

Unidentified Justice: And typically, as in this case, a termination proceeding takes place only after there has been a loss by the parent of custody?

Mr. Shaber: --Yes, sir.

Unidentified Justice: Although it's not necessarily so in all situations?

Mr. Shaber: Your Honor, I think, in all instances where the government would--

Unidentified Justice: Then it is necessarily so?

Mr. Shaber: --It is necessarily so.

Because the County Department of Social Services first has to get custody--

Unidentified Justice: That was what you said in answer to my brother Brennan earlier.

Mr. Shaber: --Yes.

Unidentified Justice: But there are some situations in which there can be a termination hearing without an antecedent custody proceeding.

Mr. Shaber: Not when they're brought by the County--

Unidentified Justice: Not when they're brought--

Mr. Shaber: --Yes, sir; when they're brought by private parties.

I'm sorry.

That's correct.

Unidentified Justice: --But they're very rare?

Mr. Shaber: I would think that they're on the order of 50 or 60 a year.

Typically, they involve stepparent adoptions.

Unidentified Justice: Right.

Mr. Shaber: If I might, let me speak very briefly to the prospect that this decision might be held to be retroactive.

The state recognizes that it is asking this court to do something which it has only done once before, and that was in Morrissey v. Brewer.

We are saying that if the petitioner prevails on this case, we would like language in the opinion such as is in Morrissey to the effect that it is wholly prospective.

Justice Stevens saw fit to speak to the question of retroactive and prospective application in Caban v. Mohammed.

Justice Frankfurter did the same in his separate opinion in Griffin v. Illinois.

We think that this is really a unique case.

There are children in North Carolina who have been adopted, whose families are settled.

They ought not run the risk if this decision, if against us, is retroactive.

Likewise, there are children in North Carolina whose parental rights have been terminated and they--

Chief Justice Burger: We'll resume there at 1 o'clock.

You have about three minutes left.

0 [Recess.]

You may resume, Mr. Shaber.

Mr. Shaber: --Mr. Chief Justice, and members of the Court:

If I may follow up on a question that Justice Brennan posed before lunch, the question about whether or not you can draw lines between categories of cases.

Justice Brennan asked, what would happen if perhaps a termination of parental rights action were brought by a private party instead of by a county Department of Social Services?

And in fact that case exists.

It's being held in abeyance in the Eastern District of North Carolina pending the result in this decision.

But there is a husband who is asserting that he has a right to an appointed attorney in a termination of parental rights action which was prosecuted by his wife, without any other government involvement in that.

Unidentified Justice: His wife married somebody else?

Mr. Shaber: Ah, yes, sir.

Unidentified Justice: His former wife?

Mr. Shaber: Yes, sir.

His former wife.

Similarly, there's a case pending in North Carolina--

Unidentified Justice: Did he explain to anyone how if he can't afford a lawyer he's going to support his child?

Mr. Shaber: --No, sir, he doesn't.

It is more ironic than that, Justice Burger, because the man prevailed in the termination action.

This is a 1983 action on behalf of the winner saying that notwithstanding the fact that I won I should have had an attorney at the earlier case.

It's an interesting little case.

We've got a case in North Carolina where the question is whether there should be appointed counsel on behalf of the respondent in a child support action which was prosecuted by the county.

And you know that in the light of Boddie v. Connecticut, there have been two State Supreme Court cases where the question is, whether or not a respondent in a domestic action has got a right to a court appointed attorney.

Now, this line, between cases involving personal liberty and your physical freedom, and all the other kind of civil cases, is under assault all over the country.

I would suggest that the Court needs to consider that very carefully and that if they do they're going to remember that the history of the right to counsel in a criminal case is one which shows that distinctions based on degree, distinctions based on the seriousness of the offense, are not distinctions which are going to be able to hold over time, we've moved from Powell to Argersinger and Scott.

What happens is--

Unidentified Justice: Do you think the American Bar Association has taken the position it does in this litigation because it's looking to the long run best interest of employment for lawyers?

Mr. Shaber: --Justice Stevens, I think not.

I think the Bar Association, and throughout its entire history, has emphasized the importance of counsel and it is strongly committed to provide lawyers for everybody.

Look at their position on law school enrollments, and compare it, perhaps, to the position of the American Medical Association in a similar situation.

Unidentified Justice: I suppose this may have an impact on the small claims courts in the states where they preclude any lawyers, along the lines of Mr. Justice Rehnquist's suggestion?

Mr. Shaber: I suggested to Justice Rehnquist that the counsel would have to be provided in those instances... perhaps not in your hypothetical... simply because this right to family integrity has been given special treatment by this Court in Stanley and the following cases.

Thank you very much.

Chief Justice Burger: You have about three minutes remaining, Mr. Evans.

Mr. Evans: Thank you, Mr. Justice.

There are several points I wanted to address that the Court raised.

The first is, drawing a line.

This case is certainly distinguishable from the majority of civil cases.

This case is formal and complex; adversarial... not informal.

The full panoply of evidentiary rules apply.

The full panoply of procedural safeguards apply.

A formal finding of fact and conclusions must be made.

It's judicial, not administrative; governmentally initiated, prosecuted, and financed.

The records that are used and the testimony that are used in these cases often involve testimony by a paid state agent and records that have been compiled by a paid state agent.

Likewise, you can look to each of the prongs of Mathews to find points of distinction.

Under the first point, state initiated, state prosecuted, the fundamentalness of the interests.

Under the governmental interest involved we have the government moving as a party, we have the government having a substantial parens patriae interest.

We just don't have that in other cases.

Under the third prong of Mathews v. Eldridge we have the government overbearing the indigent parent by his resources and advocacy skills.

In the vast majority of civil cases, we simply just do not have that.

ORAL ARGUMENT OF LEOWEN EVANS, ESQ., ON BEHALF OF THE PETITIONER PRO HAC VICE-- REBUTTAL

Unidentified Justice: And yet it's not your contention that this is a criminal prosecution, is it?

Mr. Evans: No, Mr. Justice.

Unidentified Justice: And that's the line that the Constitution draws, the Sixth Amendment to the Constitution.

Mr. Evans: The Sixth Amendment--

Unidentified Justice: Which guarantees counsel in all criminal prosecutions?

Mr. Evans: --The Sixth Amendment does, Justice Stewart.

As far as the questions as to what effort this parent... these... the family made towards obtaining this child after the child went into foster care, at the very outset the grandmother asked the Department of Social Services to place the child with her.

The mother wanted the child to be placed with her.

You can find reference to this request in the trial transcript at page 52.

Unidentified Justice: Is there some reference to the notion that she was not able to take care?

Mr. Evans: Yes, Mr. Justice.

There was an allegation by the social worker that she said that she could not take care of the child, that members of her church said that she could not take care of the child.

However, at the trial the grandmother testified that she never made such statements and indeed, that she never would make such statements, because these five children involved are her only grandchildren.

She has four children.

Petitioner is the only child that has children, and she said that this is my only family and there's no way that I would give up that right.

Likewise, in reference to Mr. Justice Blackmun's question about diligent effort, the Department of Social Services did not make a diligent effort in this case to try to strengthen the parent child relationship.

The Department made only one visit to this parent during the two years in issue, one visit.

This visit was made three months prior to filing a termination of parental rights petition, and the visit was made for the express purpose to ask the parent to give up her parent child relationship.

Two years, one visit, asking the parent to give up the parent child relationship, certainly cannot be classified as a diligent effort to strengthen the parent child relationship.

In reference to Mr. Justice Brennan's questions about abuse and neglect, abuse and neglect are grounds for termination of parental rights in North Carolina.

So that you do not have to have a prior adjudication in which the child is actually put into the custody of DSS, of Department of Social Services, and be any subsequent termination action under certain situations--

Chief Justice Burger: Your time has expired now, Mr. Evans.

Mr. Evans: --Yes.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.