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ADOPTION R. I. (12/04/73)

decided: December 4, 1973.

IN RE: ADOPTION OF R. I.


Appeal from decree of Court of Common Pleas of Lawrence County, No. 22 of 1972, in re adoption of Robin Iwanejko.

COUNSEL

S. Sanford Kantz, with him Levine and Kantz, for appellants.

Kenneth E. Fox, Jr., with him Sherman K. Levine, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Pomeroy. Concurring Opinion by Mr. Justice Nix. Mr. Justice Manderino joins in this concurring opinion.

Author: O'brien

[ 455 Pa. Page 30]

On February 24, 1972, two of appellees,*fn1 filed a report of intent to adopt R. I. and a petition for involuntary termination of parental rights of the natural parents in the Orphans' Court Division of the Court of Common Pleas of Lawrence County. On March 9, 1972, a hearing on the petition was held, after which the court granted the petition but allowed the natural parent who had appeared unrepresented by counsel, time to secure legal counsel to contest the proposed decree.*fn2 The natural parent obtained counsel and proceeded to attack the termination decree. The matter was listed for argument, and on February 8, 1973, the court below dismissed appellant's exceptions and issued a final decree terminating appellant's parental rights and permitting appellees to adopt the child. This appeal followed.

Appellant raises several allegations of error. Although her allegations that the court's findings of fact were insufficient to support a decree terminating her parental rights are without merit,*fn3 her allegation that

[ 455 Pa. Page 31]

    she was denied due process because she was without representation at the hearing in which her rights were terminated and she was not informed that she was entitled to free counsel at that hearing, if she could not afford to pay for one, is a different matter.

It has long been established that an individual is entitled to counsel at any proceeding which may lead to the deprivation of "substantial rights." Coleman v. Alabama, 399 U.S. 1 (1970), In Re: Gault, 387 U.S. 1 (1967), United States v. Wade, 388 U.S. 218 (1967), Miranda v. Arizona, 384 U.S. 436 (1966), Com. ex rel. Rambeau v. Collins, 455 Pa. 8, 314 A.2d 842 (1973). Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968).

While the above-cited cases are criminal in nature, the logic behind them is equally applicable to a case involving an indigent parent faced with the loss of her child. In the words of the Court of Appeals of New York, which reached the same conclusions in the Matter of Ella R. B., 285 N.E. 2d 288, 290 (1972): "A parrent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right [citing cases] to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer. To deny legal assistance under such circumstances would -- as the courts of other jurisdictions have already held [citing cases] -- constitute a violation of his due process rights and, in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws

[ 455 Pa. Page 32]

    as well. As the Federal District Court wrote in the very similar Cleaver case [ Cleaver v. Wilcox, decided March 22, 1972 (40 U.S.L.W. 2658)], 'whether the proceeding be labelled "civil" or "criminal," it is fundamentally unfair, and a denial of due process of law for the state to seek removal of the child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel. . . . Since the state is the adversary . . . there is a gross inherent imbalance of experience and expertise between the parties if the parents are not represented by counsel. The parent's interest in the liberty of the child, in his care and in his control, has long been recognized as a ...


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