State Ex Rel. Juvenile Department v. Stevens , 100 Or. App. 481 ( 1990 )

GRABER, J.

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 1, 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 P2d 15, 444 P2d 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 US 18, 24-27, 101 S Ct 2153, 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 US 319, 335, 96 S Ct 893, 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 US at 27. In Babcock v. Employment Division, 72 Or App 486, 491, 696 P2d 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 telephone² 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 factfinding process against a somewhat less marginal governmental interest. In In Re Darrow, 32 Wash App 803, 649 P2d 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 489. 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 private interest that will be affected” by the hearing and “the probable value, if any, of additional * * * safeguards” in the procedure. Mathews v. Eldridge, supra, 424 US at 335. The importance of Stevens’ interest does not necessarily translate into added value for the requested additional procedure. The dissent’s emphasis on his interest as the controlling factor causes it to overlook the narrowness of our inquiry. We must decide whether Stevens was afforded a full and fair opportunity to present evidence in his behalf and to rebut evidence offered against him and must decide only whether the incremental safeguard of personal appearance is not merely desirable, but constitutionally required. In this case, Stevens received that full and fair opportunity, and the denial of his request to be brought to the hearing at the state’s expense did not deny him due process.

Affirmed.

1 Stevens also cites Article I, section 10, as a source of the rights that he seeks. He does not explain how the failure to bring him to Eugene denied him a remedy in the due course of law for an injury done to him. See, e.g., Hale v. Port of Portland, 308 Or 508, 517-24, 783 P2d 506 (1989). Neither Article I, section 10, nor any other provision of the Oregon Constitution is analogous to the Due Process Clause of the Fourteenth Amendment. State v. Clark, 291 Or 231, 235 n 4, 630 P2d 810 (1981).

2 In State ex rel Juv. Dept. v. Gates, 86 Or App 631, 740 P2d 217 (1987), rev den 305 Or 45 (1988), we held, in a termination case, that taking the testimony of expert witnesses by telephone over the objection of a party violated ORS 45.010 and ORS 45.040. Stevens does not make a statutory challenge to taking his testimony by telephone.

3 We affirm on the merits of Stevens’ appeal.