McBride v. McBride

• Decision Date: 02 July 1993
• Docket Number: No. 419PA92,419PA92
• Citation: 431 S.E.2d 14,334 N.C. 124
• Court: North Carolina Supreme Court
• Parties: Donna McBRIDE v. Terry McBRIDE.

Page 14

431 S.E.2d 14

334 N.C. 124

Donna McBRIDE v. Terry McBRIDE.

No. 419PA92.

Supreme Court of North Carolina.

July 2, 1993.

On appeal of right, pursuant to N.C.G.S. § 7A-30(1), and on discretionary review of a decision of the Court of Appeals, 108 N.C.App. 51, 422 S.E.2d 346 (1992), affirming an order entered by Fuller, J., in District Court, Davidson County, on 7 June 1991. Heard in the Supreme Court on 13 May 1993.

Central Carolina Legal Services, Inc. by Stanley B. Sprague, Greensboro, for defendant-appellant.

No counsel contra.

MITCHELL, Justice.

On 12 January 1989, the defendant signed a Voluntary Support Agreement in which he agreed to pay $40 per week in child support. On the same day, that agreement was approved and signed by a District Court Judge and thereby became a court order. On 10 May 1991, after the defendant failed to appear in court to respond to a motion to show cause why he should not be held in contempt for failure to pay child support as required by the 12 January 1989 order, an order was entered for his arrest. On 7 June 1991, the defendant was brought before the District Court, Davidson County, for a contempt hearing. The defendant was not represented by counsel, and the issue of whether the defendant was entitled to appointed counsel because of indigence was not raised. The defendant represented himself. The trial court found the defendant in willful contempt of court and ordered that he be held in custody until he purged himself of contempt by paying $1,380.46, the full amount of child support arrearage which he owed. The trial court, however, made no determination as to whether the defendant was presently able to pay that amount.

The defendant remained in jail until 2 July 1991, when he gave notice of appeal and was released pending his appeal. He argued on appeal to the Court of Appeals that, because he was indigent at the time of the contempt hearing which resulted in his incarceration, the trial court had violated his constitutional right to due process by failing to appoint counsel to represent him at that hearing. The Court of Appeals, relying on this Court's holding in Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980), rejected the defendant's due process arguments. 108 N.C.App. at 54, 422 S.E.2d at 347. The defendant filed a notice of appeal to this Court on 8 December 1992, as a matter of right under N.C.G.S. § 7A-30(1), involving a substantial question arising under the Constitution of the United States. Additionally, on 11 February 1993, we allowed the defendant's petition for discretionary review of the decision of the Court of Appeals.

In Jolly, this Court considered whether an indigent defendant facing incarceration in a civil contempt proceeding brought to enforce compliance with a child support order is constitutionally entitled to representation by appointed counsel. We distinguished the right to counsel in a civil contempt proceeding from the right to counsel in a criminal proceeding, stating that the source of any right to counsel in a civil contempt action is the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, while the Sixth and Fourteenth Amendments are the source of a criminal defendant's right to counsel. 300 N.C. at 92, 265 S.E.2d at 142. In Jolly, we held that

due process does not require that counsel be automatically appointed for indigents in such cases; rather, the minimum requirements of due process are satisfied by evaluating the necessity of counsel on a case-by-case basis.... [D]ue process requires appointment of counsel for indigents in nonsupport civil contempt proceedings only in those cases where assistance of counsel is necessary for an adequate presentation of the merits, or to otherwise ensure fundamental fairness.

Id. at 93, 265 S.E.2d at 143 (citing Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656, 666 (1973)). Subsequent decisions by the Supreme Court of the United States and other courts pertaining to the issue of an indigent defendant's right to appointed counsel in a civil contempt proceeding, however, now compel us to re-examine the validity of our holding in Jolly.

After our decision in Jolly, the Supreme Court of the United States considered whether an indigent parent in a parental status termination proceeding is entitled to appointed counsel by virtue of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Lassiter v. Dept. of Social Servs. of Durham County, 452 U.S. 18, 24, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640, 647 (1981). Although in Lassiter the Court concluded that there was no due process requirement of automatic appointment of counsel in a proceeding to terminate parental rights, the Court's analysis in that case is instructive with regard to the analysis which this Court must apply in addressing the issue which we face here.

The Court in Lassiter emphasized that, in determining whether due process requires the appointment of counsel for an indigent litigant in a particular proceeding, a court must first focus on the potential curtailment of the indigent's personal liberty rather than on the "civil" or "criminal" label placed on the proceeding. Where due process is concerned, "it is the defendant's interest in personal freedom ... which triggers the right to appointed counsel." Lassiter, 452 U.S. at 25, 101 S.Ct. at 2158, 68 L.Ed.2d at 648. The Court noted that, irrespective of the "civil" or "criminal" label placed on a proceeding, "as a litigant's interest in personal liberty diminishes, so does his right to appointed counsel." Id. at 26, 101 S.Ct. at 2159, 68 L.Ed.2d at 649. Thus, a defendant in a "civil" juvenile delinquency proceeding is entitled to counsel if the proceeding "may result in commitment to an institution in which the juvenile's freedom is curtailed," id. at 25, 101 S.Ct. at 2159, 68 L.Ed.2d at 648 (quoting In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527, 554 (1967)), while, even in criminal prosecutions, an indigent defendant is not entitled to appointed counsel if the prosecution does not result in actual imprisonment. Id. (citing Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383, 389 (1979)).

The Supreme Court concluded in Lassiter that "[t]he pre-eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation." Id. The Court further concluded that its precedents establish "the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured." Id. 452 U.S. at 26-27, 101 S.Ct. at 2159, 68 L.Ed.2d at 649. The Supreme Court thus determined that a presumption against appointed counsel exists when there is "the absence of at least a potential deprivation of physical liberty" in a particular proceeding. Id. at 31, 101 S.Ct. at 2162, 68 L.Ed.2d at 652.

Because there was no potential deprivation of physical liberty in the proceeding at issue in Lassiter--a proceeding to terminate parental rights--the Court considered the following three factors: (1) the private interests at stake in the proceeding; (2) the government's interest; and (3) the risk that the procedures being used will lead to erroneous decisions. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 649 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976)). The Court then weighed these three factors against the presumption that a defendant is not entitled to appointed counsel in a proceeding in which his physical liberty is not at stake. Based on this analysis, the Court concluded that due process does not require the appointment of counsel in every parental termination proceeding and adopted the case-by-case standard set forth in Gagnon v. Scarpelli, 411 U.S. at 790, 93 S.Ct. at 1763, 36 L.Ed.2d at 666, for determining whether appointed counsel is required in a proceeding to terminate parental rights.

In Gagnon, the Supreme Court held that an indigent, previously sentenced probationer has a due process right to appointed counsel in a probation revocation hearing only on a case-by-case basis--the state authority administering the probation and parole system has discretion to determine whether counsel is necessary in a particular case to preserve the fundamental fairness of the proceeding. Id. The Court reasoned that a probationer has a more limited right to due process than does a criminal defendant who has not yet been convicted of the criminal offense of which she is accused. 411 U.S. at 789, 93 S.Ct. at 1763, 36 L.Ed.2d at 666. Because probationers and parolees already have been convicted of the crimes which resulted in their probation or parole, and restrictions have been placed on their continued physical freedom, they have only a conditional interest in physical liberty. See Morrisey v. Brewer, 408 U.S. 471, 481-82, 92 S.Ct. 2593, 2600-01, 33 L.Ed.2d 484, 494-95 (1972).

In Jolly, this Court relied upon Gagnon as the basis for our holding that, in nonsupport civil contempt cases, "the minimum requirements of due process are satisfied by evaluating the necessity of counsel on a case-by-case basis." 300 N.C. at 93, 265 S.E.2d at 143. We reasoned that the potential loss of liberty in parole or probation revocation proceedings "is much more serious and extensive than in nonsupport civil contempt cases," focusing on our assumption that "a person in civil contempt holds the key to his own jail by virtue of his ability to comply" and on our finding of a general lack of complexity involved in civil contempt proceedings for nonsupport. Id. Recent practical experience in the courts of...