D., Matter of

• Jurisdiction: Oregon
• Parties: In the Matter of D., minor child. F. and F., Respondents, v. C., Appellant.
• Citation: 547 P.2d 175,24 Or. App. 601
• Court: Oregon Court of Appeals
• Decision Date: 08 March 1976

Page 175

547 P.2d 175

24 Or.App. 601

In the Matter of D., minor childF. and F., Respondents, v.C., Appellant.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Sept. 16, 1975.

Reargued and Submitted Jan. 20, 1976.

Decided March 8, 1976.

Diane W. Spies, Portland, argued the cause and filed the brief for appellant.

Ira L. Gottlieb, Portland, argued the cause for respondents.With him on the brief was Harvey W. Keller, Portland.

David L. Slader, Child Advocacy Project for the Metropolitan Public Defender, Portland, filed briefs amicus curiae.

LANGTRY, Judge.

This is a father's appeal from a decree of the circuit court terminating his parental rights and allowing the adoption of his son by the child's maternal grandfather and stepgrandmother.

Father and mother were married on June 26, 1970; their son--the child involved in this proceeding--was born October 6 of that same year.Following his discharge from the Marine Corps in February of 1971father and mother began experiencing domestic difficulties which became increasingly severe during the subsequent year when, due to father's failure to maintain steady employment, they were compelled to call upon their families for financial assistance.In the fall of 1972mother ultimately filed suit for dissolution of the marriage and moved from Portland to Bend where, with the aid of a brother, she hoped to establish a more stable life-style for herself and her son.During the pendency of the dissolution suit father made some efforts to effect a reconciliation which culminated in his traveling to Bend on December 21, 1972.His confrontation with mother on that date resulted in her homicide; father was thereafter convicted in the circuit court of manslaughter (ORS 163.125) and began serving a ten-year sentence at the Oregon State Correctional Institution in May of 1973. ¹

Immediately following the death of mother, her parents (petitioners) took the child involved into their home.An order temporarily committing him to their custody was issued by the Deschutes Countyjuvenile court on December 26, 1972 as a consequence of the filing of a petition alleging that he was within the court's jurisdiction.ORS 419.476.On May 15, 1973--following father's conviction in circuit court--a second order was entered temporarily committing the child to the Children's Services Division; incorporated into that commitment order was a recommendation that the petitioners continue to maintain physical custody of the child pending a final placement.² Pursuant to that order and recommendation the child has remained in the petitioners' home continuously to this date.

On January 18, 1974petitioners filed a petition pursuant to the terms of ORS 109.310, asserting that the child had been in their sole custody for more than a year and that they desired to adopt him.On motion of the district attorney the circuit court thereafter ordered the consolidation of the adoption proceeding and the still pending juvenile court matter (See note 2), both of which were found to involve 'much the same issue and circumstances.'ORS 419.559.Testimony was eventually taken during the summer of 1974, with the deposition of an important out-of-state witness finally being received into evidence in January of 1975.As authorized by the terms of ORS 109.310(3) and (4), the Children's Services Division filed with the court a report incorporating 'information regarding the status of the child and evidence as to the suitability of the proposed foster (adoptive) home * * *.'Although the Division's report included the recommendation that petitioners' petition for adoption be denied, ³the court concluded, after considering the alternative of a placement through the Division into an 'unrelated' adoptive family, that the interests of the child would be best served by permanent placement in the 'stable and secure' family environment which the petitioners were providing; the decree from which this appeal has been taken was accordingly entered on March 12, 1975.

In addition to contending that the evidence presented below was insufficient either to establish that petitioners are 'fit and proper'⁴ adoptive parents or to warrant the termination of his parental rights, ⁵father has raised two important questions for this court's consideration: (1) Did the 'subject' of the proceeding--the child--have a constitutional right to 'independent legal representation' which the circuit court improperly refused to recognize?(2) Is ORS 109.322, providing in relevant part that an adoption may be granted, over the objection of a natural parent imprisoned under a sentence of not less than three years, where it will 'best promote' the welfare of the child, unconstitutionally vague and does it deprive imprisoned parents of the due process and equal protection to which they are constitutionally entitled?

Shortly after the hearings below had been completed father filed with the court a motion for an order dismissing the proceedings, or in the alternative for a mistrial, on the ground that his son had not been and was not then 'independently represented by counsel.'Relying upon this court's opinion in State ex rel Juv. Dept. v. Wade, 19 Or.App. 314, 19 Or.App. 835, 527 P.2d 753, 528 P.2d 1382(1974), Sup.Ct.Review denied, appeal dismissed 423 U.S. 806, 96 S.Ct. 16, 46 L.Ed.2d 27(1975), father argues that the denial of this motion constituted reversible error.

Holding in Wade that where a proceeding may result in the severing of a parent-child relationship the child involved possesses an interest 'worthy of all the protection afforded the interests of (the) parents * * *'(19 Or.App. at 319, 527 P.2d at 755), we concluded that a child may not be deprived of his or her interest in that relationship without due process.⁶In light of the fact that the Oregon Supreme Court had previously characterized legal representation as an integral part of the 'due process' to which parties involved in a 'termination proceeding'--ORS 419.523 through 419.527--were entitled, ⁷we then concluded that due to potential conflicts of interests existing among all three of the necessary parties--parent, child and state--' independent' counsel responsible for representing the child was required in every termination case.As pointed out in State ex rel Juv. Dept. v. Gonzalez, 21 Or.App. 103, 533 P.2d 1382, Sup.Ct.Review denied (1975):

'* * * (O)ur decision in Wade was predicated upon a concern that the welfare of children may require, in certain circumstances, separate representation in termination proceedings, and, since such circumstances may not be known or may not exist in advance of the proceedings, the children should be represented by counsel in all proceedings.'21 Or.App. at 106, 533 P.2d at 1384.

Father contends, and we agree, that no valid distinction may be made between the proceeding at bar--a 'Chapter 109' adoption proceeding--and an action for the termination of parental rights--ORS 419.523 through 419.527--which would warrant the application of a different rule with respect to the protection of the rights of the children involved.We have nonetheless concluded that the denial of father's motion for dismissal or mistrial was not error.We are persuaded that the rule set forth in Wade is needlessly inflexible and has in application failed to serve the purposes for which it was designed; we are now satisfied that due process does not, in fact, require the presence of independent counsel in every case and that the implementation of a rule to that effect will, in many cases, fail to enhance the protection of the interests of children while unnecessarily complicating proceedings already involving difficult and complicated issues.

Expressing his own views in the case of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527(1967), Mr. Justice Harlan pointed out that the Supreme Court has repeatedly emphasized that determination of the procedural safeguards constitutionally required in any given situation requires recognition of both the interests affected and the circumstances involved.⁸Relying upon this rule of general application, Mr. Justice Harlan then concluded that requirements imposed upon state juvenile courts by the Due Process Clause of the Fourteenth Amendment ought to be determined by reference to three 'criteria':

'* * * first, no more restrictions should be imposed than are imperative to assure the proceedings' fundamental fairness; second, the restrictions which are imposed should be those which preserve, so far as possible, the essential elements of the State's purpose; and finally, restrictions should be chosen which will later permit the orderly selection of any additional protections which may ultimately prove necessary * * *.'387 U.S. at 72, 87 S.Ct. at 1467.

Developments since Wade have served to convince us that a rule requiring independent counsel in every case where the possibility exists that a child's relationship with a natural parent could be severed is, in fact, broader than necessary to assure that such a proceeding will meet the requirements of 'fundamental fairness.'

The primary purpose of both adoption and termination proceedings is the protection and promotion of a child's 'best interest.'⁹Two significant contributions a child's attorney might be expected to make in these proceedings are: (1) by serving as an advocate for a position taken by his 'client' relative to the issues involved, and (2) by ensuring that the record upon which the court must rely in exercising its discretion is as complete and accurate as possible.Where, however, the child involved is by reason of his immaturity incapable of having or communicating a view as to how his personal interests would be best served, counsel cannot possibly fulfill the first of his anticipated roles--that of an advocate.Whether, on the other hand, the presence of counsel at least theoretically responsible solely to the child is...