State ex rel. Juvenile Dept. of Lane County, Children's Services Div. v. Stevens
| Decision Date | 14 February 1990 |
| Citation | 786 P.2d 1296,100 Or.App. 481 |
| Parties | In the Matter of William James Stevens, A Child. STATE ex rel JUVENILE DEPARTMENT OF LANE COUNTY, CHILDREN'S SERVICES DIVISION, William James Stevens and Martin Mitchell Stevens, Respondents, v. Virginia Jaye STEVENS, aka Virginia O'Brien, Appellant. In the Matter of William James Stevens, A Child. STATE ex rel JUVENILE DEPARTMENT OF LANE COUNTY, CHILDREN'S SERVICES DIVISION and Virginia Jaye Stevens, aka Virginia O'Brien, Respondents, v. Martin Mitchell STEVENS, Appellant. In the Matter of Ronald Joseph Stevens, A Child. STATE ex rel JUVENILE DEPARTMENT OF LANE COUNTY, CHILDREN'S SERVICES DIVISION, Ronald Joseph Stevens and Martin Mitchell Stevens, Respondents, v. Virginia Jaye STEVENS, aka Virginia O'Brien, Appellant. In the Matter of Ronald Joseph Stevens, A Child. STATE ex rel. JUVENILE DEPARTMENT OF LANE COUNTY, CHILDREN'S SERVICES DIVISION and Virginia Jaye Stevens, aka Virginia O'Brien, Respondents, v. Martin Mitchell STEVENS, Appellant. In the Matter of Jamie Ian Stevens-Johnston, A Child. STATE ex rel JUVENILE DEPARTMENT OF LANE COUNTY, CHILDREN'S SERVICES DIVISION, Jamie Ian Stevens-Johnston and Sandy John Johnston, Respondents, v. Virginia Jaye STEVENS, aka Virginia O'Brien, Appellant. In the Matter of Jamie Ian Stevens-Johnston, A Child. STATE ex rel JUVENILE DEPARTMENT OF LANE COUNTY, CHILDREN'S SERVICES DIVISION, Jamie Ian Stevens-Johnston and Virginia Jaye Stevens, aka Virginia O'Brien, Respondents, v. Sandy John JOHNSTON, Appellant. 86-655; 83-469; 88-113, CA A60866; CA A60893; CA A60894. |
| Court | Oregon Court of Appeals |
Susan A. Schmerer, Eugene, argued the cause and filed the brief for appellant Virginia Jaye Stevens.
Diane M. DePaolis, Eugene, argued the cause for appellant Martin Mitchell Stevens. With her on the brief was DePaolis, Evans, Shepard & Vallerand, Eugene.
Katherine M. Blaser, Eugene, argued the cause and filed the brief for appellant Sandy John Johnston.
Michael C. Livingston, Asst. Atty. Gen. Salem, argued the cause for respondent State of Or. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
No appearance for other respondents.
Three parents appeal the trial court's judgment terminating their rights to three children. All of the children have the same mother. We affirm without further discussion on all issues involving the mother and the father of the youngest child. We write only to discuss constitutional arguments that Martin Stevens, the father of the two older children, raises. We affirm the termination of his rights.
At the time of trial, Stevens was in prison in Washington on a federal conviction. Because he was indigent, the court appointed an attorney to represent him in this proceeding. However, it refused to order the state to pay the $2,500 to $3,700 that it would cost to bring him to Eugene and hold him in the Lane County Jail for the duration of the trial. Instead, Stevens testified by telephone. He argues that the court's refusal to pay for his appearance in person violated several state and federal constitutional provisions.
Stevens first asserts that he had a right, under Article I, section 11, of the Oregon Constitution, to receive effective assistance of counsel and to confront the witnesses face to face. He could exercise those rights, he argues, only if he were present. The problem with that argument is that Article I, section 11, applies "[i]n all criminal prosecutions"; a proceeding to terminate parental rights is not a criminal prosecution. It is true, as the Supreme Court has noted, that such a proceeding is "one of the most drastic actions the state can take against its inhabitants" and that the consequences of denial of counsel "are as serious as they are in most criminal prosecutions." State v. Jamison, 251 Or. 114, 117-18, 444 P.2d 15, 444 P.2d 1005 (1968). The importance of a termination proceeding does not, however, make it a criminal prosecution. Article I, section 11, does not grant rights that apply in termination cases. 1
Next, Stevens claims that the court's action denied him due process of law under the Fourteenth Amendment. To the degree that he bases his claim on the rights that the Due Process Clause incorporates from the Fifth and Sixth Amendments, his argument has the same infirmity as does his claim under Article I, section 11. Those rights apply only in criminal prosecutions. It may be that similar rights are available in termination cases, but, if so, the reason is that fundamental fairness requires them in a particular case or category of cases. In Lassiter v. Department of Social Services, 452 U.S. 18, 24-27, 101 S.Ct. 2153, 2158-2160, 68 L.Ed.2d 640 (1981), the Supreme Court recognized that a termination case threatens the parent with "a unique kind of deprivation" and that, as a result, the parent has a commanding interest in the justice and accuracy of the decision. The Court held, nevertheless, that fundamental fairness does not require the appointment of counsel for a parent in all termination cases.
In order to determine what due process requires before the government may deprive a person of an important right, the Supreme Court directs us to balance the interests that it identified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976):
"[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Emphasis supplied).
See Lassiter v. Department of Social Services, supra, 452 U.S. at 27, 101 S.Ct. at 2159. In Babcock v. Employment Division 72 Or.App. 486, 491, 696 P.2d 19 (1985), we applied the criteria of Mathews in considering whether a telephone hearing in an unemployment compensation case violated due process. We concluded that it did not. We reasoned that the claimant had an opportunity to cross-examine witnesses, personal appearances would not materially reduce the risk of erroneous decisions, and the Employment Division had a strong interest in telephone hearings as a fair and efficient way to conserve its limited resources.
We reach a similar conclusion in this case. Stevens' interest in his parental rights is undoubtedly great. For that reason, he received significant procedural protections. The state was required to prove the facts supporting its petition by clear and convincing evidence, ORS 419.525(3), at a trial at which Stevens was represented by appointed counsel. Our review of the decision against him is de novo. ORS 419.561(4). Stevens testified by telephone 2 and was able to consult with his counsel in the same way. His testimony followed that of the adverse witnesses and responded to it point by point, and his counsel was able to cross-examine the adverse witnesses meaningfully. Those facts suggest that he was able effectively to consult with counsel. Indeed, he does not claim that any specific portion of the trial was affected by his absence or that his inability to consult with counsel in person hampered any specific portion of trial preparation or strategy. In view of the extensive safeguards that Stevens did enjoy, we cannot say that the probable value of his physical presence in assuring an accurate and just decision was great. On the other hand, the only interest that the state asserts is financial. In contrast to Babcock v. Employment Division, supra, the record does not show that that interest extends beyond this particular case, to an extensive governmental program.
We must balance what would be at best a marginal improvement in the fact finding process against a somewhat less marginal governmental interest. In In re Darrow, 32 Wash.App. 803, 649 P.2d 858 (1982), the Washington Court of Appeals held that it was not a violation of due process for the state to refuse to pay to transport a prisoner from Arizona to Washington for a termination hearing. In that case the prisoner was represented by counsel but did not testify, by telephone or otherwise. We need not decide whether we would agree with the Washington court on identical facts. We do hold, however, that on the facts of this case the trial court did not deny Stevens due process when it refused to require the state to pay for his transfer to Eugene in order to participate in the trial. 3
The dissent's approach has two flaws. First, it assumes, as a matter of fact, that the trial court's inability to evaluate Stevens' demeanor in person was important here, because "[a] key witness adverse to father was the child's mother, who did appear in person." 100 Or.App. at 489, 786 P.2d at 1300. Testimony from witnesses, other than mother, during the lengthy trial bore on Stevens' fitness. Most significantly, Stevens admitted many of the key facts about which mother testified, including his participation in the manufacture of methamphetamines, his past abuse of drugs and alcohol, and his long criminal history; most recently, he had pled guilty to a federal charge of manufacturing marijuana. He admitted that the people with whom he was associating before his incarceration were dangerous to him and his family. Moreover, the trial court clearly viewed mother's testimony with caution, as shown by its termination of her parental rights. Even if we, on de novo review, accepted Stevens' version where it conflicted with mother's, we would still affirm the trial court's decision. On this record, it is not likely that his absence was in fact critical.
Second, the dissent blurs the distinction between two different considerations: "the...
To continue reading
Request your trial
-
1999 -NMCA- 35, State ex rel. Children, Youth and Families Dept. v. Ruth Anne E., 19266
...to recall state's witnesses for recross-examination, and have their attorney call additional witnesses on his or her behalf); Stevens, 786 P.2d at 1299 (parent permitted to testify by telephone following state's presentation of any adverse witness in order for parent's counsel to be able to......
-
In the Matter of The Involuntary Termination of Parent–child Relationship of C.G. v. Marion County Dep't of Child Serv.
...Youth and Families Dept. v. Ruth Anne E., 126 N.M. 670, 974 P.2d 164, 168–171 (N.M.Ct.App.1999); State ex rel. Juvenile Dept. v. Stevens, 100 Or.App. 481, 786 P.2d 1296, 1299 (1990); State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865, (2000); In re Christopher D., 191 Wis.2......
-
State ex rel. Jeanette H. v. Pancake
...counsel and where his opportunity to participate in proceedings via deposition was not impaired); State ex rel. Juvenile Dep't v. Stevens, 100 Or.App. 481, 786 P.2d 1296 (1990) (finding no due process violation where state was required to prove facts by clear and convincing evidence, father......
-
Adoption of J.S.P.L., Matter of
...of V.M.R., 768 P.2d 1268, 1270 (Colo.Ct.App.1989); Matter of Rich, 604 P.2d 1248, 1253 (Okla.1979); State ex rel. Juv. Dept. v. Stevens, 100 Or.App. 481, 786 P.2d 1296, 1298 (1990), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991). Even in criminal prosecutions, the accu......