Danforth v. State Dept. of Health and Welfare

• Decision Date: 17 April 1973
• Citation: 303 A.2d 794
• Parties: Calvin DANFORTH et al. v. STATE DEPARTMENT OF HEALTH AND WELFARE et al.
• Court: Maine Supreme Court

Page 794

303 A.2d 794

Calvin DANFORTH et al. v. STATE DEPARTMENT OF HEALTH AND WELFARE et al.

Supreme Judicial Court of Maine.

April 17, 1973.

Patricia A. Danisinka, Pine Tree Legal Assistance, Inc., Skowhegan, Robert E. Mittel, Pine Tree Legal Assistance, Inc., Portland, for plaintiffs.

Janice M. Lynch, Robert B. Calkins, Asst. Attys. Gen., Agusta, John W. Philbrick, Portland, for amicus curiae.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, and ARCHIBALD, JJ.

POMEROY, Justice.

This appeal from a judgment entered by a Justice of this Court acting in the Superior Court in a habeas corpus proceeding raises an important question of first impression is this State.

The appellants are the natural parents of a minor child.

Proceeding agreeably to the provisions of 22 M.R.S.A. § 3792, the Department of Health and Welfare caused a petition seeking an order of the appropriate court that the custody of the minor child be taken from the parents and be given to the Department of Health and Welfare of the State of Maine.

This petition was initiated in the District Court, District #7, Kennebec County, which Court it is conceded had jurisdiction of the subject matter and the parties.

An Order issued removing the child from the custody of appellants and placing custody in the Department.

This habeas corpus petition followed.

There is no issue raised but that the District Court gave appropriate notice of the pendency of the petition to the appellants.

It is agreed that a hearing was had in the District Court and that both parents were in attendance and participated in such hearing.

It is established by stipulation that at all times material hereto the petitioners were indigent.

Also agreed is that the appellants were at no time advised by the District Court of any right to court-appointed counsel and were not aware that any such right might exist.

The issue with which we are faced is: In a proceeding initiated under 22 M.R.S.A. § 3792, do indigent parents, against whom the petition is directed, have a right to counsel appointed by the Court and provided at the State's expense?

The presiding Justice citing Robinson v. Kaufman, 8 Cal.App.3d 783, 87 Cal.Rptr. 678 (1970), cert. denied sub nom., Kaufman v. Carter, 402 U.S. 964, 91 S.Ct. 1624, 29 L.Ed.2d 128 (1971), as a leading authority, felt constrained in his role as a single Justice to give 'No' as his answer in recognition of the generally accepted distinction between 'criminal' and 'civil' proceedings.

We, not being so constrained, reach an opposite conclusion.

We hold that an indigent parent or parents against whom a custody petition is instituted under 22 M.R.S.A. § 3792 is entitled to have counsel appointed at the State's expense unless the right to counsel is knowingly waived.

We say this is so because the Constitution of the United States and the Constitution of Maine compel such conclusion.

The statute under which the Department of Health and Welfare purported to act in the instant case (22 M.R.S.A. § 3792) gives jurisdiction to the Probate Court of the County or appropriate District Court to take custody of a child from natural parents and 'order such child committed into the custody of the department or into the custody of any suitable person, provided that such person consents to accept custody of such child.' This may be done whenever 'after hearing, it appears' that any allegation of the complaint that a child,

'. . . named in the petition is living in circumstances which are seriously jeopardizing the health, welfare or morals of such child and is in need of protective custody . . ..'

is true.

Both the Court in Kaufman and the single Justice below premised the conclusion reached on the action being civil in its nature.

Few courts considering neglect statutes have addressed themselves to the basic question of whether there is a substantive constitutional right in parents to raise their children. The Constitution itself provides no readily apparent answer. Nowhere is the raising of children mentioned in the Federal Constitution and the power to define and regulate domestic relations has been generally thought to have been left to the states.

While the precise question here before us has never been squarely decided by the Supreme Court of the United States, there has been ample suggestion by that Court that the right to raise one's children is of constitutional dimension.

Over half a century ago Mr. Justice McReynolds, speaking for the court in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922), said:

'The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. 'No State shall . . . deprive any person of life, liberty, or property without due process of law.'

'While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' (Emphasis supplied) 262 U.S. at 399, 43 S.Ct. at 626.

Later in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1924), the Court restated its view that there is a constitutionally protected right of parents to bring up their children when it said:

'The fundamental theory of liberty upon which all governments in the Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.' 268 U.S. at 535, 45 S.Ct. at 573.

While this theory of substantive due process appeared to have been abandoned in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), (a case involving a statute regulating the business of debt adjusting); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and most recently Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), made it abundantly clear the theory of the existence of substantive due process is still viable. In Griswold both Mr. Justice Douglas, who delivered the opinion of the Court, and Mr. Justice Goldberg, in a concurring opinion ¹ in which he was joined by the Chief Justice and Mr. Justice Brennan, referred to the penumbra of specific guarantees of the Bill of Rights.

Whatever may be the portion of the Bill of Rights giving rise to the constitutional protection of the right to raise one's children, we are satisfied such protection exists under the Federal Constitution.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), Mr. Justice White summarized earlier decisions of that Court emphasizing the importance of the family as follows:

'The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, (1045, 29 A.L.R. 1446) (1923), 'basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, (1660), (1942), and '(r)ights far more precious . . . than property rights,' May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221, (1226) (1953). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can (n)either supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, (652), (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. (625), at 626, (67 L.Ed. at 1045), the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S. at 541, 62 S.Ct. (1110), at 1113, (86 L.Ed. at 1660), and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510, (522), (1965) (Goldberg, J., concurring).'

The importance of the natural right of a parent to have custody of his children has often been noted by this Court. Merchant v. Bussell, 139 Me. 118, 27 A.2d 816 (1942); Stanley v. Penley, 142 Me. 78, 46 A.2d 710 (1946).

Having decided, as we have, that the natural right of a parent to have custody of his children has constitutional dimensions, we turn to the question whether the constitutional requirement of procedural due process can be satisfied without the appointment of counsel at the State's expense for an indigent parent whose right to raise his children is sought to be abridged by the State.

There is no single set of procedural safeguards that may be applied, as a standard of due process, in all judicial proceedings. Due process is a flexible concept, to be applied in any action in a manner which is meaningful and appropriate in terms of the nature of that proceeding, with the ultimate objective of guaranteeing fairness in all judicial actions.

In Cafeteria Workers v. MeElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) the Court stated:

'. . . the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation . . .'

And further

'. . . what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.'

367 U.S. at 895, 81...