Flores v. Flores

• Decision Date: 13 July 1979
• Docket Number: No. 3832,3832
• Parties: Christine FLORES, Petitioner, v. David FLORES, Respondent.
• Court: Alaska Supreme Court

Page 893

598 P.2d 893

Christine FLORES, Petitioner, v. David FLORES, Respondent.

No. 3832

Supreme Court of Alaska.

July 13, 1979.

Max F. Gruenberg, Jr., and G. R. Eschbacher, Anchorage, for petitioner.

Donald E. Clocksin and Lucinda McBurney, Alaska Legal Services, Anchorage, for respondent.

Dana Fabe, Asst. Public Defender and Brian Shortell, Public Defender, Anchorage, amicus curiae.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and MATTHEWS, JJ.

OPINION

MATTHEWS, Justice.

This petition for review presents a single issue: whether an indigent party has the right to court-appointed counsel in a private child custody proceeding in which her spouse is represented by Alaska Legal Services Corporation (ALSC). We hold that the due process clause of the Alaska Constitution ¹ guarantees such a right.

The petition for review stems from a divorce proceeding in which custody of the couple's child is the only contested issue. The petitioner, Christine Flores, and the respondent, David Flores, are both indigent. Christine is a California resident and has evidently remained in that state throughout the time period relevant here. On or about November 18, 1976, David removed the couple's child from California to Alaska without Christine's consent. He subsequently obtained the services of ALSC and filed for divorce in Anchorage on December 20, 1976, but service was not made on Christine until April of 1977. In the interim, she obtained the services of the Legal Aid Society of Sacramento and filed for dissolution of the marriage in the Sacramento court on January 21, 1977. Service was made on David, and on March 18 the California court found that it had jurisdiction and granted interim custody to Christine. David subsequently obtained service on Christine and was awarded interim custody by an Anchorage court.

At that point, Christine's California counsel contacted a private Anchorage attorney who agreed to make a limited appearance for the sole purpose of requesting appointment of permanent counsel for Christine. An initial hearing was held on August 31, 1977, on a motion to join the Public Defender Agency as the real party in interest since Christine was attempting to require that agency to represent her in the divorce proceeding. It was stipulated that ALSC was unable to take conflicting sides of a divorce and that ALSC was without funds to hire a private attorney. The trial judge subsequently signed an order permitting service on the Public Defender.

A second hearing was held on November 14, 1977, at which an attorney from the Public Defender Agency was present as well as an ALSC attorney representing David Flores and the private attorney representing Christine Flores. The trial judge ruled that permanent counsel would not be appointed due to lack of funds and that the case should proceed with Christine unrepresented.

Petition for review of this ruling was made pursuant to Alaska Appellate Rules 23 ² and 24, ³ and an entry of default in the divorce-child custody proceeding was stayed pending the outcome of the petition. ⁴

We exercised our discretion by granting immediate review because of a substantial likelihood that injustice would result if normal appellate procedure were allowed to take its course. ⁵ Because of the petitioner's need for immediate representation, we entered an order requiring the superior court to appoint private counsel for her, indicating that an opinion would follow and that the order "is not intended to intimate the view of the court on the ultimate issues."

In holding that the due process clause of the Alaska Constitution ⁶ guarantees the right to counsel in this case, we recognize that the right is one usually associated with criminal proceedings. We also note, however, that this court has consistently avoided any formalistic categorization of proceedings as "criminal" and "civil" when determining if strict due process safeguards are required. "Due process is flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding." ⁷ Thus we have previously held that the due process clause of the Alaska Constitution requires that counsel be provided for defendants in civil contempt proceedings, Otton v. Zaborac, 525 P.2d 537 (Alaska 1974), and in paternity suits, Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977), where the state supplies counsel to the mother.

The interest at stake in this case is one of the most basic of all civil liberties, the right to direct the upbringing of one's child. ⁸ This right has consistently been recognized by the United States Supreme Court as being among the "liberties" protected by the due process clause of the Federal Constitution. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

In Reynolds, we recognized the importance of the parent-child relationship. Although Reynolds was a paternity proceeding, we quoted with approval the decision of the Ninth Circuit in Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974), which was a class action brought by indigent parents seeking injunctive relief and a declaratory judgment to the effect that whenever indigent parents become involved in child dependency proceedings, they are entitled to appointment of counsel. The court refused to adopt an inflexible rule that counsel was required in all child dependency proceedings, but it did hold the following:

Parents are entitled to a judicial decision on the right to counsel in each case. The determination should be made with the understanding that Due process requires the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or of prolonged separation from a child.

Id. at 945 (footnote omitted) (emphasis added).

It is true that both Reynolds and Cleaver involved proceedings that were prosecuted by the state, but that does not remove the present case from the scope of their rationale. Although a private individual initiated the proceeding below, he was represented by counsel provided by a public agency. Fairness alone dictates that the petitioner should be entitled to a similar advantage. Furthermore, there is a strong state interest in divorce-child custody proceedings. Unlike commercial contracts, legally binding marriages and divorces are wholly creations of the state. ⁹ Any provision for child custody in a divorce order is fully enforceable by the state. ¹⁰ In this case, Christine Flores stands to lose a basic "liberty" just as surely as if she were being prosecuted for a criminal offense.

We have noted on previous occasions that "(c)hild custody determinations are among the most difficult in the law." ¹¹ Although the legal issues in a given case may not be complex, the crucial determination of what will be best for the child can be an exceedingly difficult one as it requires a delicate process of balancing many complex and competing considerations that are unique to every case. A parent who is without the aid of counsel in marshalling and presenting the arguments in his favor will be at a decided and frequently decisive disadvantage which becomes even more apparent when one considers the emotional nature of child custody disputes, and the fact that all of the principals are likely to be distraught. This disadvantage is constitutionally impermissible where the other parent has an attorney supplied by a public agency.

In this case, the legal issues are much more complex than usual because of jurisdictional problems and because divorce proceedings are taking place in two states. Regardless of the complexity of the case, however, a denial of the right to counsel will necessarily be fatal to the petitioner's cause, because she lacks the funds to come to Alaska and will therefore lose the custody proceeding by default. Her right to be heard will truly be meaningless unless she is afforded the right to counsel. ¹²

Having determined that there is a constitutional right to counsel in proceedings of this nature, it is necessary to further consider who will act as such and who will pay. Three sources from which counsel may be furnished have been suggested. They are ALSC, the Public Defender Agency, and the private bar.

ALSC contends that it cannot furnish attorneys to represent opposing sides in litigation. That conclusion follows if ALSC is viewed as an ordinary law firm to which the rule applies which bars all members of a firm from representing a client when one member of a firm has a conflict of interest. ¹³

It is not, however, an inevitable conclusion that ALSC could not under any circumstances furnish counsel to take both sides of a case. Regulations might be developed relating to such matters as record keeping, access to files, supervision, and physical separation of offices which would be sufficient to ensure that two attorneys employed by ALSC could represent conflicting positions in litigation, each having undivided loyalty to his client and fully able to exercise that independent professional judgment which is required by the Code of Professional Responsibility. ¹⁴ However, there now exist no such regulations and without them ALSC cannot realistically be considered as a source of legal representation.

Both parties contend that the Public Defender Agency has the statutory obligation to furnish counsel in this case. Their argument is that AS 18.85.100(a) requires the public defender to represent "(a)n indigent person who . . . is entitled to representation under the Supreme Court Rules of Children's Procedure . . ." and that Children's Rule 15(a)(3) requires the appointment of counsel in the...