Lassiter v. Department of Social Services (1981): Is There a Right to a Free Lawyer in a Termination Case?

The short answer

In Lassiter v. Department of Social Services, the U.S. Supreme Court held that the Constitution does not require a court-appointed lawyer for every poor parent in every case to end parental rights. Instead, the trial court decides case by case, and its decision can be reviewed on appeal Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

Texas law sets its own rule. In a suit filed by a governmental entity asking to terminate parental rights or name a conservator, a Texas court must appoint an attorney ad litem for an indigent parent who responds in opposition Tex. Fam. Code §107.013(a). An attorney ad litem is a lawyer the court appoints. Indigent means unable to afford a lawyer.

What the case was about

In 1975, a North Carolina court heard evidence that Abby Gail Lassiter had not given her infant son proper medical care. It found him to be a neglected child and placed him in the custody of the Durham County Department of Social Services Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981). A year later, Ms. Lassiter began a prison sentence of 25 to 40 years Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

The Department then asked the court to terminate her parental rights. She was brought from prison to the hearing, held August 31, 1978. The court did not postpone the hearing. Ms. Lassiter did not claim she was indigent, and the court did not appoint a lawyer for her Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981). She cross-examined the Department's social worker herself. The court ended her status as her son's parent Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

On appeal she made one argument: because she was indigent, the Due Process Clause of the Fourteenth Amendment entitled her to a lawyer. The North Carolina Court of Appeals disagreed, and the Supreme Court of North Carolina denied review. The U.S. Supreme Court agreed to hear her claim Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

What the court decided

Justice Stewart wrote the opinion of the Court, and the vote was 5–4 Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981) Santosky v. Kramer, 455 U.S. 745 (1982). Chief Justice Burger joined that opinion and added a short concurrence. Justice Blackmun and Justice Stevens wrote dissents Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

The Court began with its earlier cases on free lawyers. From them it drew a presumption: an indigent person has a right to appointed counsel "only when, if he loses, he may be deprived of his physical liberty." Everything else is measured against that presumption Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

Next, the Court weighed three factors from an earlier case, Mathews v. Eldridge: the private interests at stake, the government's interest, and the risk of a wrong decision Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981). It called a parent's interest in an accurate termination decision "a commanding one." It said the State shares that interest because it cares about the child's welfare. The State's interest in saving money was "hardly significant enough" to outweigh the parent's interest. And termination issues "are not always simple" Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

The Court said that in a case where the parent's interests were strongest, the State's were weakest, and the risk of error was highest, due process could require a lawyer. Because cases differ, the Court could not say the Constitution requires counsel in every termination case. It left that call to the trial court first, subject to appeal Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

On Ms. Lassiter's facts, the Court found no specially troublesome points of law. It said a lawyer "could not have made a determinative difference." It held that the trial court did not err by not appointing counsel, and affirmed Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

The Court then added that the Constitution sets only a minimum. It noted that 33 States and the District of Columbia already provided appointed counsel in termination cases by statute. It said nothing in its opinion implies that those standards are "other than enlightened and wise" Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

Chief Justice Burger called the holding "narrow." Justice Blackmun's dissent argued that a parent's rights cannot constitutionally be ended in formal court proceedings without a lawyer. Justice Stevens wrote that the issue was "one of fundamental fairness, not of weighing the pecuniary costs against the societal benefits" Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981). These separate opinions are not the Court's holding.

In the court's words

A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.

In plain English: the Court treated a parent's stake in a termination case as very high Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

The parents are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation.

In plain English: the Court recognized that a termination hearing can overwhelm a parent who has no lawyer Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution.

In plain English: States are free to give parents more protection than the Constitution requires Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).

Why it matters for Texas families

Lassiter sets the constitutional minimum. Texas has written a stronger rule into the Family Code. In a suit filed by a governmental entity asking to terminate parental rights or name a conservator, the court must appoint an attorney ad litem for an indigent parent who responds in opposition Tex. Fam. Code §107.013(a). If you have no lawyer at your first court appearance, the court must tell you about your right to one Tex. Fam. Code §107.013(a-1). To claim indigence, you file an affidavit of indigence before the court holds a hearing on it Tex. Fam. Code §107.013(d). If you are found indigent, the lawyer is paid from the county's general funds Tex. Fam. Code §107.015(c).

Texas also requires appointed lawyers in court-ordered services cases. There, the court must appoint a lawyer for each parent whose participation is requested, right after the filing and before the hearing Tex. Fam. Code §264.203(h). See Court-Ordered Services in Texas CPS Cases (Family Code §264.203).

Even before court, DFPS must tell you about lawyers. At first contact in an investigation, DFPS's written summary must include your right to seek legal counsel Tex. Fam. Code §261.307(a). DFPS must also tell you out loud about the right to a court-appointed attorney if you are indigent, you are the child's parent, and DFPS seeks certain court orders Tex. Fam. Code §261.307(a).

Section 107.013(a) is written for suits filed by a governmental entity. If someone else filed your case, ask a lawyer what applies. For the details, see Your Right to a Lawyer in a Texas CPS Case. This page is legal information, not legal advice.

Related

• Your Right to a Lawyer in a Texas CPS Case
• Court-Ordered Services in Texas CPS Cases (Family Code §264.203)
• Your Rights When Texas CPS Contacts You (Family Code §261.307)
• Santosky v. Kramer (1982): The Proof Needed to End Parental Rights
• M.L.B. v. S.L.J. (1996): A Parent's Termination Appeal Cannot Depend on Ability to Pay