Adoption of K.A.S., Matter of

• Decision Date: 27 April 1993
• Docket Number: No. 920130,920130
• Citation: Adoption of K.A.S., Matter of, 499 N.W.2d 558 (N.D. 1993)
• Parties: In the Matter of the ADOPTION OF K.A.S. D.S. and B.R.S., Petitioners and Appellees, v. T.D.K., Respondent and Appellant, and Executive Director of North Dakota Department of Human Services, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 558

499 N.W.2d 558

In the Matter of the ADOPTION OF K.A.S D.S. and B.R.S., Petitioners and Appellees, v. T.D.K., Respondent and Appellant and Executive Director of North Dakota Department of Human Services, Respondent.

Civ. No. 920130.

Supreme Court of North Dakota.

April 27, 1993.

Kenneth L. Dalsted (argued), of Gilje, Greenwood & Dalsted, Jamestown, for petitioners and appellees.

David Boeck (argued), Legal Assistance of North Dakota, Bismarck, for respondent and appellant.

LEVINE, Justice.

We are confronted with the issue of the right of an indigent parent to appointed counsel in an involuntary termination of parental rights under NDCC Chapter 14-15. T.D.K. ["Tom"], ¹ denied the right to appointed counsel below, appeals from a district court judgment which terminated his parental rights to K.A.S. ["Karl"], and granted the petition of D.S. ["Debra"] and B.R.S. ["Brad"] for Brad to adopt Karl. We hold that Tom was entitled to court-appointed counsel in these proceedings to involuntarily terminate his parental rights and we reverse and remand for a new trial.

Tom and Debra were married in 1981. Karl was born to the couple in 1983. Tom and Debra were divorced in 1986 and Debra was awarded custody of Karl. Debra married Brad in 1990. In late 1991, Debra and Brad petitioned the court for an order terminating Tom's parental rights to Karl and allowing Brad to adopt him. The petition alleged that Tom, without justifiable cause, had "failed to make any significant communication with the child," had "failed to exercise ... reasonable visitation rights for a period in excess of one year," and had "failed to provide any support for the child since January, 1990."

After being served with the notice of hearing, Tom wrote to the trial court that he was "categorically opposed to the petition for adoption of my son." He requested that the hearing be transferred from Stutsman County to Cass County because he was "currently incarcerated in Cass County Jail." The hearing was held in Cass County.

In response to the trial court's request as the hearing began, counsel for Debra and Brad submitted a brief on whether Tom was entitled to a court-appointed attorney. Tom told the court that "I wish I could afford an attorney but I am not able to...." The court "assume[d]" that Tom could not afford to hire an attorney, told Tom he could respond to opposing counsel's brief on the right to a court-appointed attorney, and said that he was "fairly certain" he had no obligation to appoint counsel for Tom because the proceedings were brought under the Revised Uniform Adoption Act, NDCC Chapter 14-15, rather than under the Uniform Juvenile Court Act, NDCC Chapter 27-20. The court did not appoint counsel to represent Tom. During the hearing, Tom attempted to cross-examine witnesses; he testified on his own behalf.

After determining that Debra and Brad had "established the presumption that [Tom] intended to abandon [Karl]," the trial court terminated Tom's parental rights, ruled that Tom's consent to the adoption was unnecessary, and granted the adoption petition. Tom, represented on appeal by Legal Assistance of North Dakota, asserts that the judgment should be reversed because the trial court denied him his right to court-appointed counsel.

I

Involuntary termination of parental rights may be accomplished under three separate provisions of our law: (1) the Uniform Juvenile Court Act [see NDCC Sec. 27-20-45]; (2) the Uniform Parentage Act [see NDCC Sec. 14-17-24]; or (3) the Revised Uniform Adoption Act [see NDCC Sec. 14-15-19]. Under the Uniform Juvenile Court Act [Juvenile Court Act], parental rights may be involuntarily terminated if the parent has abandoned the child or if the child is "deprived," as defined by statute. See NDCC Sec. 27-20-44(1). Under the Uniform Parentage Act [Parentage Act], the parental rights of a biological father may be terminated if he fails to appear at the hearing or fails to claim custodial rights to the child. See NDCC Sec. 14-17-24(3) and (4).

Under the Revised Uniform Adoption Act [Adoption Act], parental rights may be terminated if any ground exists for termination under the Juvenile Court Act or the Parentage Act; if the child has been abandoned by the parent; if the child is suffering or probably will suffer serious harm because of the misconduct, faults, habits, or physical or mental incapacity of the parent; or, if the parent who does not have custody of the child unreasonably withholds consent to the termination, contrary to the best interests of the child. See NDCC Sec. 14-15-19(3).

Both the Juvenile Court Act and the Parentage Act give a party the right to legal counsel at all stages of the proceedings, and require the trial court to appoint counsel for a party who is financially unable to obtain counsel. See NDCC Secs. 27-20-26 and 14-17-18. The right, if any, to court-appointed counsel for an indigent party is less clear under the Adoption Act. NDCC Sec. 14-15-19(6) is the relevant section:

"6. Before the petition is heard, notice of the hearing thereon and opportunity to be heard must be given the parents of the child, the guardian of the person of the child, the person having legal custody of the child, and, in the discretion of the court, a person appointed to represent any party." ²

Tom asserts that the trial court's construction of NDCC Sec. 14-15-19(6) as not requiring appointment of counsel, and the court's consequent failure to provide court-appointed counsel to represent an indigent, non-consenting parent in a stepparent adoption proceeding, which can result in the termination of parental rights, violated his federal and state constitutional rights.

II

Before 1981, the vast majority of state and federal courts which had considered the issue held that the due process clause of the fourteenth amendment to the United States Constitution required appointment of counsel for all indigent parents in state-initiated parental-rights termination proceedings. See, e.g., Davis v. Page, 640 F.2d 599 (5th Cir.1981), vacated on other grounds, 458 U.S. 1118, 102 S.Ct. 3504, 73 L.Ed.2d 1380 (1982); Smith v. Edmiston, 431 F.Supp. 941 (W.D.Tenn.1977); Shappy v. Knight, 251 Ark. 943, 475 S.W.2d 704 (1972); In re Rodriguez, 34 Cal.App.3d 510, 110 Cal.Rptr. 56 (1973); Danforth v. State Department of Health and Welfare, 303 A.2d 794 (Me.1973) [federal and state due process grounds]; Department of Public Welfare v. J.K.B., 379 Mass. 1, 393 N.E.2d 406 (1979); Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (1976); In Interest of Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973); Crist v. New Jersey Div. of Youth & Family Services, 128 N.J.Super. 402, 320 A.2d 203 (1974), reversed on other grounds, 135 N.J.Super. 573, 343 A.2d 815 (1975); In re B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288 (1972); State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399 N.E.2d 66 (1980); Matter of Chad S., 580 P.2d 983 (Okl.1978) [federal and state due process and equal protection grounds]; State v. Jamison, 251 Or. 114, 444 P.2d 15 (1968); In re Welfare of Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974) [federal and state due process grounds]; State ex rel. LeMaster v. Oakley, 157 W.Va. 590, 203 S.E.2d 140 (1974) [federal and state due process grounds]. At least one court applied the same rationale to require appointment of counsel for an indigent parent when parental rights were being terminated through private adoption proceedings that were not initiated by the state. See, e.g., In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (1973). The right to counsel recognized by these courts was later codified in many of the same jurisdictions.

But in 1981, the United States Supreme Court cast real doubt on the validity of these decisions, insofar as they were premised on federal due process grounds. In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Court held that the due process clause of the fourteenth amendment does not require appointment of counsel for indigent parents in every parental-rights termination proceeding.

The Court reasoned that the Constitution generally requires the appointment of counsel for an indigent defendant only in a criminal prosecution involving possible loss of physical liberty, explaining that it is the defendant's interest in personal freedom that "triggers the right to appointed counsel." Lassiter, supra, 452 U.S. at 25, 101 S.Ct. at 2158. The Court noted that "as a litigant's interest in personal liberty diminishes, so does his right to appointed counsel." [Lassiter, supra, 452 U.S. at 26, 101 S.Ct. at 2159], and said that its 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 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." Lassiter, supra, 452 U.S. at 26-27, 101 S.Ct. at 2159.

The Court analyzed the three elements from Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), that must be weighed against the presumption that there is no right to appointed counsel when there is no risk of lost liberty: "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Lassiter, supra, 452 U.S. at 27, 101 S.Ct. at 2159.

In examining the private interests at stake, the Lassiter Court underscored the fundamental nature of a parent's rights to nurture and rear his or her child:

"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...