NCJ Number
15320
Date Published
1973
Length
14 pages
Annotation
CONSTITUTIONAL ARGUMENTS IN SUPPORT OF AN INDIGENT PARENT'S RIGHT TO COURT-APPOINTED COUNSEL TO PROTECT HIS RIGHTS IN CUSTODY DETERMINATIONS.
Abstract
PARENTS' DUE PROCESS RIGHTS TO APPOINTED COUNSEL IN DEPENDENCY AND NEGLECT CASES DERIVE FROM SUPREME COURT RECOGNITION OF A RIGHT TO COUNSEL IN MANY CRIMINAL PROSECUTIONS. IN LIGHT OF THE SUPREME COURT'S ABROGATION OF THE CIVIL-CRIMINAL DISTINCTION, THE CRUCIAL ISSUE HAS BECOME THE SEVERITY OF THE DEPRIVATION OF LIBERTY AT STAKE. DEPRIVATION OF PARENTAL RIGHTS, EVEN TEMPORARILY, IS SUFFICIENTLY SERIOUS FOR DUE PROCESS TO REQUIRE THE APPOINTMENT OF COUNSEL FOR INDIGENTS. THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT GIVES SPECIAL PROTECTION TO FUNDAMENTAL RIGHTS. PARENTS' RIGHTS TO RAISE THEIR OWN CHILDREN IN THE MANNER THEY CHOOSE HAS BEEN RECOGNIZED BY THE SUPREME COURT AS FUNDAMENTAL. UNLESS THERE IS A COMPELLING STATE INTEREST TO JUSTIFY A CLASSIFICATION WHICH IS BASED ON SUSPECT CRITERIA AND AFFECTS FUNDAMENTAL RIGHTS, THE CLASSIFICATION WILL BE HELD TO BE A DENIAL OF EQUAL PROTECTION. THE MORE IMPORTANT THE FUNDAMENTAL RIGHT INVOLVED, THE LESS SUSPECT THE CLASSIFICATION NEED BE FOR A COURT TO SUBJECT IT TO STRICT SCRUTINY AND REQUIRE THE STATE TO MEET A HIGHER BURDEN THAN MERE RATIONALITY TO JUSTIFY THE CLASSIFICATION. THE IMPORTANCE OF THE PARENTS' RIGHTS REQUIRE THAT WEALTH BE TREATED AS SUSPECT SO THAT INDIGENT PARENTS WILL BE PROVIDED WITH APPOINTED COUNSEL. IF WEALTH IS CONSIDERED SUSPECT HERE, THE STATE WILL HAVE TO SHOW A MORE COMPELLING REASON FOR DENYING COUNSEL TO PARENTS CONFRONTED WITH POTENTIAL LOSS OF THEIR CHILDREN THAN THE PARENTS' POVERTY. PROBABLY THE STATE'S ONLY ARGUMENTS IN SUPPORT OF THE CLASSIFICATION WILL BE ADMINISTRATIVE CONVENIENCE AND ECONOMY, BUT THESE HAVE BEEN HELD NOT TO BE COMPELLING. WITHOUT A COMPELLING STATE INTEREST, THE FAILURE TO PROVIDE COUNSEL TO INDIGENTS WOULD BE A DENIAL OF EQUAL PROTECTION.