State v. Jamison

444 P.2d 15 (1968)

In the matter of Valerie Mae Mitchell, John Charles Mitchell, Floydette Mitchell, Veronica Rose Mitchell, Children.
STATE of Oregon, Respondent,
v.
Veronica Tias JAMISON, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 8, 1968. Decided July 26, 1968.

Thomas Mosgrove, Pendleton, argued the cause for appellant. On the briefs were Mosgrove, Walton & Yokom, Pendleton.

Jack Olsen, Deputy Dist. Atty., Pendleton, argued the cause for respondent. On the brief were Riney J. Seeger, Dist. Atty., and Raley F. Peterson, Deputy Dist. Atty., Pendleton.

Before PERRY, C.J., and McALLISTER, O'CONNELL, GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

Argued and Submitted at Pendleton May 8, 1968.

GOODWIN, Justice.

The mother of five children born out of wedlock appeals from an order of the juvenile court terminating her parental rights, ORS 419.523 and 419.525, and awarding custody to the Umatilla County Public Welfare Commission. ORS 419.527 (1) (a).

As the cause must be reversed on due-process grounds, we express no opinion upon the ultimate question of the fitness of the mother to retain her rights as a parent under ORS 419.523.

The first assignment of error asserts that the summons served upon the mother did not comply with ORS 419.486. That section requires that the summons set forth a brief statement of the facts which bring the child within the jurisdiction of the court under ORS 419.476. The summons that was served advised the mother only that the petitioner (a welfare official) would seek an order of permanent commitment to his agency. A proper summons should also have advised the parent against whom termination proceedings were brought why the child was alleged to be within the jurisdiction of the court and whether the parent's alleged fault in the matter consisted of unfitness, nonsupport, desertion, or a combination of such faults. Since the case must be reversed on other grounds, however, it is not necessary for us to consider the various questions that have been raised concerning the sufficiency of notice. In the event of future proceedings against this mother, a new petition and a new summons will be required. We assume that statutory procedures will be followed.

The principal assignment of error has to do with the failure of the juvenile court to advise the mother, who was indigent, that she was entitled to the assistance of a court-appointed attorney. On behalf of the juvenile court, it must be acknowledged that prior to the decision of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), there was some doubt whether, in the absence of statute, a juvenile court was obliged to supply counsel to indigent children. In Oregon, since 1959, ORS 419.498 (2)^[1] has provided that the court may appoint counsel "to represent the child in any case." But no decision in this state has required the juvenile court, as a matter of constitutional due process, to supply counsel to indigent parents.

It is the general rule that where the state is the adversary party and is attempting to take a child permanently from a parent, the parent is entitled to the assistance of retained counsel. See Annotation, 60 A.L.R.2d 691, 692 (1958). We now hold that, where the parent in a termination proceeding is indigent, counsel must be supplied at public expense. We need not now decide whether constitutional due process requires the appointment of counsel in other types of juvenile hearings.

The permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants. It would be unconscionable for the state forever to terminate the parental rights of the poor without allowing such parents to be assisted by counsel. Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state. See In re Gault, supra. If the parents are too poor to employ counsel, the cost thereof must be borne by the public as in cases under ORS 419.498(2).

The state points out that in the case at bar the mother did not request counsel and contends, therefore, that she waived counsel. We hold that waiver cannot be inferred from a failure to request court-appointed counsel by a person who, insofar as the record reveals, does not know of her right to counsel.

The indigent are frequently the least able to cope with government in its official functions. See Paulsen, Juvenile Courts, Family Courts, and the Poor Man, 54 Calif.L.Rev. 694 (1966). The case at bar was routine for the welfare workers and other juvenile court staff. For the indigent mother, however, the entire proceedings were incomprehensible. To say under such circumstances that if the mother wanted a lawyer she should have asked for one is to disregard the realities of the culture of poverty. In a matter as grave as the permanent loss of parental rights, we hold that the waiver of counsel must be shown to have been a knowing waiver. This is the rule in criminal cases. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). While the case at bar is not a criminal matter, the consequences of the denial of counsel are as serious as they are in most criminal prosecutions.

The importance of the aid of counsel in a termination case involving the poor is well illustrated by the record in this case. Without counsel, the informality usually associated with ex parte hearings prevailed. The juvenile court was led to proceed on the basis of incompetent evidence and evidence that had remote, if any, connection with the issues made up by the petition. We need not be detained now by the numerous assignments of error that have been urged in this appeal. In a hearing in which both sides had been represented by counsel, most, if not all, of the alleged errors would have been avoided.

The order of termination is reversed.

NOTES

[1] ORS 419.498(2) "If the child, his parent or guardian requests an attorney but is without sufficient financial means to employ an attorney, the court shall appoint an attorney to represent him. The court may appoint an attorney to represent the child in any case. An attorney appointed pursuant to this subsection shall be paid a reasonable fee fixed by the court, to be paid in the same manner as fees for attorneys appointed in criminal cases in the circuit court."