Cox v. Stayton, 81-73

• Decision Date: 06 July 1981
• Docket Number: No. 81-73,81-73
• Citation: 273 Ark. 298,619 S.W.2d 617
• Parties: Alfred COX, et ux., Appellants, v. James Ray STAYTON, et ux., et al., Appellees.
• Court: Arkansas Supreme Court

Page 617

619 S.W.2d 617

273 Ark. 298

Alfred COX, et ux., Appellants, v. James Ray STAYTON, et ux., et al., Appellees.

No. 81-73.

Supreme Court of Arkansas.

July 6, 1981.

Rehearing Denied Sept 14, 1981.

East Texas Legal Services by David J. Manley, Texarkana, Tex., for appellants.

Joe C. Short, Hope, and Dowd, Harrelson & Moore by C. Wayne Dowd, Texarkana, for appellees.

HAYS, Justice.

This litigation involves adoption proceedings of three infant children, Patricia Ann, Peggy and Bill Don Jurls. The appellants are the natural grandparents and bring this appeal challenging the adoption of the children by the appellees, who are their foster parents. We affirm the decrees of adoption.

In January 1979, Arkansas Social Services filed a petition in Hempstead County Juvenile Court alleging dependency-neglect of Patricia Ann Jurls, age 3 years. Upon a hearing in the matter, the Juvenile Court ordered Patricia Ann, Billy Don, age 2, and Peggy, age 1, taken from the custody of their parents, George and Daisy Jurls, and placed with their grandparents, Alfred and Emma Cox, the appellants. On April 27, 1979, the deputy prosecuting attorney filed a petition for immediate removal of the children from the Cox home as being necessary to protect the health and physical well being of the children from immediate harm. On this petition, the Juvenile Court entered an order taking immediate custody of the children from the Cox home and placing them with a local agency, Southwest Arkansas Counselling and Mental Health Center. However, the Coxes promptly sought and obtained a writ of habeas corpus and the children were returned to the Cox home. This development was followed by a hearing in Juvenile Court on the April 27th petition and custody of the children was again granted to the Center with instructions to place the children in foster homes. Unable to place all three in the same home, the two girls were placed with appellees, James Ray Stayton and his wife, Phyllis Dale Stayton, and Billy Don with Thomas William Massey and his wife, Anita Karen Massey, also appellees here.

In January 1980 the Center petitioned the Hempstead Probate Court to terminate the parent-child relationship of the children from George and Daisy Jurls and to permit their adoption by the foster parents. Summons was issued and served upon George and Daisy Jurls and counsel for the appellants-grandparents filed an answer on their behalf. However, Daisy Jurls later filed an affidavit to the effect that she did not wish to be so represented and neither natural parent responded further to the petitions for adoption or appeared at the hearings below. The Staytons intervened seeking adoption of Patricia and Peggy and the Masseys intervened seeking to adopt Billy Don. The appellants, Alfred and Emma Cox, were also permitted to intervene in the proceedings alleging it would not be in the best interest of the children to grant the adoptions. They did not, however, seek to adopt the children themselves. On June 20, 1980, the Probate Court entered decrees of adoption in favor of the appellees on each of the petitions and appellants now bring this appeal.

First, the appellants argue that the probate court erred in failing to appoint legal counsel for the indigent minor children, Peggy, Patricia Ann, and Billy Don Jurls, in violation of their Fourteenth Amendment rights to due process. We disagree. It should be noted here that the record reveals that the court did appoint counsel for the children. However, there is no indication that the attorney so named was ever given notice of the appointment and the record does not reveal any appearance on his part nor any participation in the proceedings. The appellants do not argue ineffectiveness of counsel on this appeal and we find it unnecessary to consider such an argument, had it been raised, since we conclude for the reasons stated below that appointment of counsel was not required.

In support of their contention that counsel must be appointed for indigent minors in adoption proceedings, appellants cite this court to State v. Wade, 19 Or.App. 314, 527 P.2d 753 (1974). However, the appellants have disregarded later cases of Matter of D, 24 Or.App. 601, 547 P.2d 175 (1976), and Segrest v. Bradshaw, 275 Or. 431, 551 P.2d 456 (1976), which specifically overturned the Wade holding. In Segrest, the Oregon court held that independent counsel for the indigent minors in an adoption proceeding was required only when "in the judgment of the trial court, it is necessary in the particular case for the protection of the child's interest." Segrest, at 458. We believe this approach is sound. In Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), the Supreme Court, in dicta, has evidently approved a case by case determination of whether independent counsel is required. In Smith, the issue of a right to counsel for the indigent adoptees was not argued on appeal, counsel for the children having been appointed in the trial court below. However, in its discussion of the circumstances of the Smith case, the court noted in its footnote 44 that it approved of the appointment of independent counsel for the children where it appeared necessary to protect the interests of the children. In this case, we believe that given the ages of the children at the time of the hearing, the strong advocacy of the appellants, their natural grandparents, and of the appellees, their foster parents, we conclude that the welfare of the children was adequately protected by the parties to the adoption as to the central issue of the proceeding, i. e., the best interest of the children. Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961), and Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).

The appellants also argue that the trial court erred in failing to appoint independent counsel for the indigent natural parents, Daisy and George Jurls. We disregard this argument because the appellants have no standing to raise such an issue. Constitutional rights, including the guarantee of due process, are personal rights and may not be asserted by a third party. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). A very narrow exception exits where the issue presented to the court would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the rights of the other party would be vigorously asserted and, thus, adequately represented. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). We agree that the issue of the childrens' possible right to counsel would not otherwise be susceptible to judicial review, and therefore we reach that issue as stated above. However, any right to counsel by the parents could be as well asserted by the parents themselves and would be easily reviewable had the parents joined in this appeal to claim such right, or had they remained as parties to the proceedings below. We therefore decline to recognize standing by these appellants to raise constitutional...