Jefferson v. Arkansas Dhs
| Decision Date | 08 April 2004 |
| Docket Number | No. 03-596.,03-596. |
| Citation | 158 S.W.3d 129,356 Ark. 647 |
| Parties | Pamela JEFFERSON v. ARKANSAS DEPARTMENT OF HUMAN SERVICES. |
| Court | Arkansas Supreme Court |
Gray Allen Turner, Little Rock, for appellee.
Stasia Burk, Little Rock, Attorney Ad Litem.
On August 9, 2000, the Department of Human Services [DHS] received a report that D.J., the thirteen-year-old biological daughter of appellant, Pamela Jefferson, had been sexually abused by her older brother and her cousin. At the time the report was made, D.J., who lived with her grandmother, was visiting relatives in Michigan, and appellant was living in Georgia.
After Michigan Protective Services interviewed D.J., and after she returned to Arkansas where she was temporarily placed in foster care, DHS filed a petition seeking emergency custody of D.J. The petition was granted, and the trial court set a probable cause hearing. Appellant did not participate in these proceedings. Following the hearing, the trial court concluded that there was probable cause to remove D.J. from appellant's custody.
On October 13, 2000, an adjudication hearing was held to determine whether D.J. was dependent-neglected. Appellant was served with a copy of the petition filed by DHS when she arrived at the adjudication hearing. At that time, she was advised of her right to have legal representation during the proceedings. After briefly discussing the issue with the trial court, appellant chose to proceed with the hearing without an attorney.
On November 1, 2000, an order adjudicating D.J. dependent-neglected was entered. The trial court ordered that D.J. was to remain in the custody of DHS until appellant completed certain requirements. These requirements included entering a residential treatment facility for drug and alcohol abuse, locating housing and employment, and participating in therapy and parenting classes. The trial court in its order also appointed an attorney to represent appellant in future proceedings.
On March 22, 2001, August 9, 2001, February 28, 2002, and August 1, 2002, hearings were held to review the circumstances of the case and to determine proper placement for D.J. After each of the hearings, the trial court determined that returning D.J. to appellant's custody was contrary to D.J.'s welfare and that it was in her best interest for DHS to have continued custody.
On December 6, 2002, DHS filed a petition seeking to terminate appellant's parental rights to D.J. pursuant to Ark.Code Ann. § 9-27-341 (Repl.2002). On January 30, 2003, a hearing was held on DHS's petition. Thereafter, the trial court granted DHS's petition and terminated appellant's parental rights.
It is from this order that appellant appeals. She raises four points for our consideration, and we affirm the trial court.
In her first point on appeal, appellant argues that the trial court erred when it conducted an adjudication hearing without appointing an attorney to represent her. Appellant argues that the trial court's actions deprived her of her statutory right to counsel. Appellant also argues that to the extent that a person may waive this statutory right to counsel her waiver was not knowingly or intelligently made.
Arkansas Code Annotated § 9-27-316 (Repl.2002) provides:
Upon request by a parent or guardian and a determination by the court of indigence, the court shall appoint counsel for the parent or guardian in all proceedings to remove custody or terminate parental rights of a juvenile.
Id. We have explained that:
Whether due process requires the appointment of counsel in a particular parental-termination proceeding is a matter for the trial court to determine, subject to appellate review. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness. Id., 452 U.S. at 33-34, 101 S.Ct. 2153. Consequently, according to the to the Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings. Id. Rather, it is an issue that must be addressed on a case-by-case basis. Id. The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. § ACA 9-27-316(h) (Supp.1999). However, this is a State-conferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel.
Bearden v. Arkansas Dep't of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
In Bearden, we also held that a parent involved in a termination of parental rights proceeding may waive his right to counsel. However, we noted that the waiver should be voluntarily, knowingly, and intelligently made. We further noted that every reasonable presumption should be indulged against the waiver of such rights. Id. Finally, we explained:
A waiver of the fundamental right to the assistance of counsel is valid only when:
(1) the request to waive the right to counsel is unequivocal and timely asserted;
(2) there has been a knowing and intelligent waiver of the right to counsel; and
(3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues.
In Bearden, applying the foregoing principles, we determined that the trial court did not err when it refused to allow a parent to waive her right to counsel and proceed pro se during parental-termination hearings. Our conclusion was based on a review of a colloquy between the parent and the trial court. We concluded that the parent's waiver was "far from unequivocal." Id.
In Battishill v. Arkansas Dep't of Human Servs., 78 Ark.App. 68, 82 S.W.3d 178 (2002), our court of appeals was asked to consider a case in which the parents, who were involved in a termination of parental rights case, argued that the trial court erred when it found that they had waived their rights to counsel. The court of appeals discussed the principles articulated in Bearden, and adding to our analysis, noted:
In order to effectively waive counsel the parent must be `made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and that he has made his choice with his eyes open.'
Id. (quoting Bledsoe v. State, 337 Ark. 403, 406, 989 S.W.2d 510, 512 (1999)).
After reviewing the facts surrounding the parents' waivers, the court of appeals concluded that the trial court erred when it accepted their waivers. Specifically, the court of appeals concluded that the parents' waivers were not voluntarily or intelligently made because the trial court did not explain to them the desirability of having the assistance of an attorney during the proceedings or the disadvantages of not having an attorney during the proceedings. Battishill, supra.
In the case now before us, the following colloquy occurred:
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