Moore v. Hall

• Citation: 62 A.3d 1203
• Decision Date: 15 February 2013
• Docket Number: No. 27,2012.,27
• Parties: Christopher MOORE, Respondent Below, Appellant, v. Charlene M. HALL, Petitioner Below, Appellee.
• Court: United States State Supreme Court of Delaware

62 A.3d 1203

Christopher MOORE,¹ Respondent Below, Appellant,

v.Charlene M. HALL, Petitioner Below, Appellee.

No. 27, 2012.

Supreme Court of Delaware.

Submitted: Jan. 23, 2013.

Decided: Feb. 15, 2013.

William J. Wade, Esquire (argued), Kelly E. Farnan, Esquire, Jaclyn C. Levy, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware, for appellant.

David C. Gagne, Esquire, Woloshin, Lynch, Natalie & Gagne, Wilmington, Delaware, for appellee.

Before HOLLAND, BERGER, JACOBS, RIDGELY, Justices and GLASSCOCK, Vice Chancellor,² constituting the Court en Banc.

HOLLAND, Justice.

Charlene M. Hall (the “Mother”) filed a petition to terminate the parental rights of Christopher Moore (the “Father”) with regard to a child (the “Child”) born on August 24, 2005. The Family Court granted the Mother's petition. This is the Father's appeal from that final judgment.

The Father has raised two issues. First, he argues that the Family Court violated his right to due process under the United States and Delaware Constitutions by not appointing new counsel to represent him, after it allowed his court-appointed attorney to withdraw. Second, the Father contends that the record does not support the Family Court's decision to terminate his parental rights.

We have concluded that the Father's due process rights were violated. Therefore, this matter must be reversed and remanded to the Family Court for a new hearing after an attorney is appointed to represent the Father. Consequently, we do not address the Father's second argument.

Facts

The Father and the Mother have never been married to one another. The Father and the Mother began dating in March, 2003. They began living together, but then separated in August, 2005. The Mother gave birth to the Child on August 24, 2005. The Father was not present for the Child's birth. The Father and the Mother reconciled and began living together again in September, 2005. They ended their relationship in February or March of 2006. In July, 2006, the Mother alleged domestic abuse and obtained a Protection from Abuse Order against the Father.

The Father was incarcerated in December of 2006, and is currently serving a thirteen year sentence for Burglary in the Second Degree at the James T. Vaughn Correctional Center. The Father's criminal record indicates a “good time release date” of January 29, 2019.

The Father has not seen the Child since the Child was nine months old. According to the Father, he does not have the Child's address and has not contacted the Child from prison. In his answer to the Mother's petition, the Father alleges the Mother “left for work and daycare with [Child], never to return.” The Child has lived with the Mother since birth and with the Mother and her husband since approximately the age of two.

On March 22, 2011, the Mother filed a Petition for the Termination of Parental Rights (“TPR”). On August 18, 2011, the Family Court appointed counsel to represent the Father, after finding him indigent. On October 31, 2011, the Father's appointed counsel filed a motion to withdraw from her representation of the Father and a motion to continue the termination proceedings that were scheduled for December 1, 2011.

The Family Court held a hearing on the motion to withdraw on November 18, 2011. At the hearing, the Father's court-appointed counsel stated that “there's been a breakdown in the lawyer/client relationship.” In addition to requesting leave to withdraw, the Father's appointed counsel requested “that the hearing be continued for a few months to allow [the Father] to obtain new representation given the importance of the issues [to be decided] in a few weeks.”

The Family Court asked the Father to state his position on his attorney's request to withdraw. The Father stated that he agreed. The Family Court then asked the Father, who is both indigent and incarcerated, if he was “going to hire new counsel.” The Father stated that he was not. The Family Court then told the Father: “[Y]ou're going to represent yourself. I'm not going to appoint another attorney because you can't get along with your present attorney.” The Father stated that “it's not that we can't get along, it's just that nothing was done.” The Father then explained why he felt nothing was done. The Family Court did not ask the Father or his appointed counsel any further questions.

The Family Court granted the Father's counsel's request to withdraw, but ordered the Father's counsel to “remain as standby counsel” for the Father “in the event that he requests legal advice from [counsel] on legal issues that may arise during the trial.” The Family Court stated that standby counsel's role was only advisory and that the Father “will be trying his own case or he will be retaining other counsel to represent him.” The Family Court then denied the continuance, finding no reason why the hearing, scheduled in less than two weeks, could not move forward as scheduled.

The Father did not retain alternate counsel before the December 1, 2011 hearing. The Father's standby counsel appeared at the hearing. Standby counsel's only participation in the hearing was to ask what her role was to be at the hearing. The Family Court explained:

[Standby counsel] is not taking any direct participation in this proceeding. She is not obligated to present evidence on behalf of [the Father], nor to cross examine any witness proffered by—that is offered by the Petitioner. She is here if [the Father] has any questions, procedural questions that he needs—wants advice on procedurally or questions about the law in an area, then he may confer with [standby counsel] to offer that purpose.

The Father has a fourth grade education. The Father's only participation in the hearing was to cross examine one witness. That cross-examination consisted of two questions. The Father did not give an opening statement, present testimony on his behalf, call witnesses, present any physical evidence, object to the admission of any evidence, or give a closing argument.

Following the hearing, the Family Court terminated the Father's parental rights on the grounds of unintentional abandonment under title 13, section 1103(a)(2)(b) of the Delaware Code and on the grounds that the Father failed to plan for the Child's needs under title 13, section 1103(a)(5).

Due Process Right to Counsel

The right to have counsel appointed at State expense in any proceeding is determined by the due process requirementsof the United States Constitution ³ and the Delaware Constitution.⁴ The term “due process of law” in the Federal Constitution is synonymous with the phrase “law of the land” as used in Article 1, Sections 7 and 9 of the Delaware Constitution.⁵ The United States Supreme Court has determined that the due process requirement of the United States Constitution is a flexible concept that calls for such procedural and substantive protections as the situation demands.⁶ Accordingly, the United States Supreme Court has held that the Due Process Clause of the United States Constitution is not a fixed concept but implicitly means “fundamental fairness” in the context of specific circumstances.⁷

In the Delaware Constitution, however, the phrase “law of the land” is connected conjunctively with the phrase “justice administered according to the very right of the cause.” ⁸ Therefore, “although the flexible concept of due process is only implicit in the United States Constitution, the framers of Delaware's Constitution explicitly guaranteed fundamental fairness in the administration of justice for the citizens of Delaware, with regard to the specific context, in all causes of action.” ⁹ Consequently, in some circumstances, the textual differences between the United States Constitution and the Delaware Constitution have led to different interpretations of their respective due process provisions.¹⁰

Nevertheless, with regard to an indigent parent's right to have counsel appointed at State expense, this Court's construction of the Delaware Constitution's mandate for due process “according to the very right of the cause” ¹¹ is consistent with the flexible standards of due process guaranteed by the United States Constitution. In a TPR proceeding, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that trial courts determine whether or not to appoint counsel on a case-by-case basis.¹² In In re Carolyn S.S.,¹³ this Court held that, in a termination proceeding, a parent's due process right to the appointment of counsel guaranteed by the Delaware Constitution is also decided on a case-by-case-basis.¹⁴ This “case-by-case” analysis, under both the United States and Delaware Constitutions, requires an examination of the factors set forth in Mathews v. Eldrige,¹⁵ which are:

(1) the private interest that will be affected by the official action; (2) the risk that there will be an erroneous deprivation of the interest through the procedures used and the probable value of additional or substitute procedural safeguards; and (3) the government interest involved, including the added fiscal and administrative burdens that addition or substitute procedure would require.¹⁶

Applying the Eldridge factors to the facts of this case, the Family Court determined that the indigent Father had a due process right to appointed counsel.¹⁷

In the context of this termination proceeding, our due process analysis is the same under both the United States and Delaware Constitutions, and provides an independent, alternative basis for our holding.¹⁸ Since a determination had already been made by the Family Court that the indigent Father had a due process right to representation by a court-appointed attorney, we directed the parties to submit supplemental memoranda addressing the following question: should a motion to withdraw by counsel be subject to the same searching inquiry that is required when a court-appointed attorney moves to withdraw in a criminal case? More specifically, we...