By: Rikki Jean Cobb
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
Since Gideon v. Wainright the United States Supreme Court has held that the guarantee of counsel is a “fundamental and essential right made obligatory upon the states by the Fourteenth Amendment.” Yet, the Supreme Court has not afforded these protections to parents threatened with the judicial termination of their parental rights. The foregoing describes a progression of case law suggesting that counsel may be ruled necessary under due process in any case where the state has threatened an individual with the permanent termination of parental rights.
i. DUE PROCESS
The Fifth Amendment states that “No person shall be. . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. 5, Part 1 of 13. The Fourteenth Amendment states expressly that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. 14, Part 1 of 15.
Following the Gideon decision, the United States Supreme Court evaluated what due process meant for termination of social security benefits in Mathews v. Eldridge. Here, the court applies a test that is intended to determine what due process requires. The test creates a balancing act between the (a) private interests at stake, (b) the government’s interest, and (c) the risk that the procedures used will lead to erroneous decisions. Mathews v. Eldridge, 424 U.S. 319, 323, 96 S. Ct. 893, 897 (1976). The court stated that although Mathews had a property interest in such benefits, there were safeguards in place and there would be great administrative burdens and societal costs should every termination of benefits require a hearing.
Incidentally, Mathews was cited in Lassiter v. Dept. of Social Services to support the finding that a parent whose rights were being terminated were not afforded a constitutionally protected right to counsel. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2159 (1981). In a divided opinion, the United States Supreme Court discussed whether due process required that indigent parents be appointed counsel. The Court applied the Mathews test and discussed a variety of due process related cases. Id. at 20. Importantly, the Supreme Court cited to the Gideon decision, which established that indigent criminal defendants who may be sentenced to prison, regardless of length of imprisonment, have a right to counsel. Id. at 25. The Court concluded that only criminal defendants are entitled to counsel and only when they may be sentenced to prison. Id. Notwithstanding this, the Court discussed the parent’s important interest in the companionship, care, and custody of their child; the adversarial nature of termination proceedings; the minimal interest of the state, which it identifies as “pecuniary,” and “de minimis compared to the costs in all criminal actions”; and even discusses the risk of erroneous deprivation an unrepresented parent may suffer. Id. at 28-30. Yet the Court concludes that counsel for parents should be determined by state courts on a case-by-case basis. Id. at 35.
The two dissenting opinions in Lassiter were powerful. The first was a joint dissent written by Justice Blackmun, Justice Brennan and Justice Marshall and the second written by Justice Stevens separately. Most profoundly, the Justices say “[T]he Court avoids what seems to me the obvious conclusion that due process requires the presence of counsel for a parent threatened with judicial termination of parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in Gideon v. Wainwright.” Id. (citation omitted). Throughout the dissent, the Justices touch on multiple issues, including the adversarial and punitive nature of termination proceedings; their similarity to a criminal proceeding, including the fact that the state is represented by qualified attorneys; the disparate impact of such a hearing on parents with no legal training; and the severity of a complete severance of a parent’s bond with their children.
ii. FUNDAMENTAL RIGHTS
The Supreme Court has recognized that the court must reasonably exercise its judgment to identify fundamental rights and accord respect to those rights. Obergefell v. Hodges, 576 U.S. 644, 644, 135 S. Ct. 2584, 2588 (2015). Fundamental rights that are protected by the Due Process Clause of the Fourteenth Amendment include the right to establish a home, raise children, and control the education and custody of those children. Troxel v. Granville, 530 U.S. 57, 60, 120 S. Ct. 2054, 2057 (2000). For these reasons, the Supreme Court held that a Washington statute that permitted anyone to petition for visitation rights was unconstitutional. Id. at 73.
iii. EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS
The Supreme Court has recognized that in some civil cases, a state must provide access to its judicial process, notwithstanding the individual’s ability to pay. M.L.B. v. S.L.J., 519 U.S. 102, 106, 117 S. Ct. 555, 559 (1996). Fair access to the judicial process is necessary for due process and equal protection. Without these protections indigent litigants would be subjected to unfairness in state-ordered proceedings solely due to their inability to pay. In MLB, when a mother was barred from appealing her termination of parental rights when she was unable to pay $2,352.36 in record fees in advance. Id. The Court said that while an appeal was not necessarily a right, that the state could not “bolt the doors to equal justice” based upon her lack of funds. Id. at 110. In MLB the Court recognized the similarity of termination proceedings to criminal cases in that the parent in a termination proceeding is fighting a devastating adverse action taken by the state and those rights shall not be disposed of because a case is labeled as “civil.” Id. at 125-128.
iv. ALEXANDER HAMILTON BELIEVED THE SIXTH AMENDMENT WOULD INCLUDE CIVIL CASES
Hamilton alluded to the idea that the Sixth Amendment may, in the future, be necessary for civil cases. In Federalist Paper No. 83 he discusses the fact that the constitution is silent as to this protection for civil cases, but he further states that it is not true that, “The expression of one thing is the exclusion of another.” The Federalist No. 83, at 464 (Charles R. Kelser) (Clinton Rossiter ed., 1961). He continues to say that this exclusion or silence “does not abridge the power of the legislature to exercise that mode if it should be thought proper. . . .” Id. at 465. and that such a pretense would be “destitute of all just foundation.” Id. Hamilton discusses the fact that a trial by jury may be necessary in many civil cases, and further explains that it was not expressly included in the constitution because, “It is not very probable that the other States would entertain the same opinion of our institutions as we do ourselves.” Id. at 475.
Parental rights have been recognized for decades as fundamental. The termination of parental rights cannot be likened to the temporary termination of benefits. Termination of parental rights may not result in incarceration, but how can it be said that 6 months in prison is a more grievous loss than permanent severance of the parental child relationship? How can it be said to be fundamentally fair when indigent parents who lack legal training and aren’t so privileged as to afford counsel are left to fend for themselves against an adversary system? Many states that have recognized this disadvantage have likened termination proceedings to criminal cases and have concluded that parental right terminations require representation by counsel. The mere fact that a case is civil should not dispose of fundamental rights. Especially when it is clear that the founding fathers were aware that such rights, even for civil cases, were necessary and would likely come to be in the future.