Earlier this week, Justice John Paul Stevens passed away at age 99. Thirty-eight years ago, Justice Stevens wrote a dissent in Lassiter v. Department of Social Services (1981) that continues to resonate in our child welfare legal community today and frames much of our work.
The Supreme Court majority held in that case that parents have no constitutional right to counsel in termination proceedings. Justice Stevens disagreed and asserted that the reasons supporting rights to counsel in criminal proceedings under the Due Process Clause of the Fourteenth Amendment “apply with equal force” to termination of parental rights proceedings. He compared the deprivation of liberty in a criminal proceeding to the deprivation of parental rights in a child welfare case and concluded that although “both deprivations are serious, often the deprivation of parental rights will be the more grievous of the two.” As he explained, deprivations of liberty are often for a fixed term while the termination of parental rights involves the permanent deprivation of a parent’s freedom to associate with her child and a judicial decision through which “the natural relationship may be destroyed.”
Regarding his colleagues’ assessment that financial constraints should limit parents’ rights to counsel in termination cases, Justice Stevens responded:
The issue is one of fundamental fairness, not of weighing the pecuniary costs against the societal benefits. Accordingly, even if the costs to the State were not relatively insignificant, but rather were just as great as the costs of providing prosecutors, judges, and defense counsel to ensure the fairness of criminal proceedings, I would reach the same result in this category of cases. For the value of protecting our liberty from deprivation by the State without due process of law is priceless.” (emphasis added)
The intellectual rigor with which Justice Stevens approached this field was priceless. We are thankful for his work on the Court and for the legacy he leaves behind for the child welfare legal community.
Prudence Beidler Carr, JD, is the director of the ABA Center on Children and the Law.