Frase v. Barnhart

Concurring opinion by CATHELL, J. in which BELL, C.J. and ELDRIDGE, J. join. I concur with the majority in respect to the general result it reaches. In respect to the appealability issue, however, although I agree that the matters are appealable, I do so on the basis that what occurred here was a change in the conditions of custody and was, therefore, immediately appealable pursuant to the provisions of Courts and Judicial Proceedings Article, Section 12-303(3)(x). I strongly disagree with the majority’s refusal to address the primary issue presented to us — in my view the most certiorari-worthy issue in the case.

There are many attributes that contribute to the making of a good judge. They include honesty and integrity, intellect, scholarliness, hard work, attention to detail, proper temperament, diligence and thick skin, amongst others. It has been my experience since I have been on this Court, that all of my colleagues are amply imbued with these positive judicial characteristics. In my view, there is an even more important quality that all judges should strive to achieve — decisiveness.

Judges decide. It is the very essence of what we do. And it can be argued that it is the most important element of a judge’s role. The majority declines to address an issue I believe to be properly presented that goes to the very center of the American constitutional, and extra-constitutional promises — equality under the law.

I am fully aware that there may be serious ¹³⁰ concerns as to the reaction of the other branches of government, of the organized Bar (and other members of the profession) and of the people, in respect to any decision this court might reach in addressing this most important question: do the poor receive equal treatment in a matter concerning the most basic of fundamental, and constitutional, rights — the matter of the custody, visitation, and control of children by their parents? Rather than answer, or attempt to answer it, the question is avoided by a majority of the Court. It is always easiest to decline to address controversial issues. It is, perhaps, the safest thing to do, even for courts.

But the avoiding of such issues is best left to the political processes of the other branches of government. It is our branch of government, the judiciary, under the express and implied doctrine of the separation of powers, to which the toughest and most difficult decisions are delegated. It is our primary role to ensure that the fundamental constitutional rights, which are reserved to the people, are protected. One of the most important roles of the judiciary is to see that the laws equally protect all people — the poor as well as the wealthy.

Cicero, in his De Re Publica De Legibus, I, xxxii, 49, (as translated by Keyes) raised questions, one of which, with the majority’s decision not to address it in this case, remains partially unanswered today. As relevant here he stated: “Therefore, since law is the bond which unites the civic association, and the justice enforced by law is the same for all, by what justice can an association of citizens be held together when there is no equality among the citizens? For if we cannot agree to equalize men’s wealth, and equality of innate ability is impossible, the legal rights at least of those who are citizens of the same commonwealth ought to be equal. For what is a State except an association or partnership in justice?” In the consideration of whether counsel should be provided in cases involving a significant interference with, or loss of, the right to parent, the words of the late President Lyndon B. Johnson, even though spoken in a much different context, nonetheless convey an important message: ¹³¹ “We seek not just freedom but opportunity.

We seek not just legal equity, but human ability. Not just equality as a right and a theory but equality as a fact and equality as a result.” Address, Howard University Commencement Exercises, June 4, 1965. This Court has very recently considered the matter of the importance of the constitutional right of a parent — to parent. We noted in In Re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 669-70 , 796 A.2d 778, 780 (2002): “Certain fundamental rights are protected under the Constitutions.

Among those rights is the right to child rearing, i.e., parenting. Supreme Court case law has consistently reaffirmed parental rights. “We recently stated in Boswell v. Boswell that: ‘A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. See Wisconsin v. Yoder; Stanley v. Illinois[ 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972)] (discussing the right of parents to raise their children); Prince v. Massachusetts[ 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944)] (observing that “the custody, care, and nurture of the child reside first in the parents”); Skinner v. Okla homa[ 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942)] (stating the right to rear a child is encompassed within a parent’s “basic civil rights”). . . . ’ “In accordance with the Supreme Court, Maryland has declared that a parent’s interest in raising a child is a fundamental right that cannot be taken away unless clearly justified.” [Citations omitted.] See also In re Mark M., 365 Md. 687, 705 , 782 A.2d 332, 342-43 (2001).

Recently, in a case in which the issue of counsel was not present, the United States Supreme Court opined on the ¹³² importance of the rights of parents to raise their children without interference by non-parents, albeit the Court was addressing a very broad statute that permitted any person to petition for visitation rights. That Court stated, as relevant to the point I now make, that: “The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ “The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago ... we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later ... we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained ... that ‘[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ We returned to the subject ... and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ “... In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” ¹³³ Troxel v. Granville, 530 U.S. 57, 65-66 , 120 S.Ct. 2054, 2059-60 , 147 L.Ed.2d 49, 56-57 (2000) (citations omitted).

I think it can be agreed that the quality of justice received, even in our system, arguably the best system of justice ever conceived, is impacted by the presence or absence, and the quality of, legal representation of the respective parties. I readily understand that it may well be beyond our power to create a perfectly equal system, but, that acknowledged, there is no acceptable reason to avoid doing what we can do, even if it is perceived that what we do may not be well received by other governmental entities that will have to address the impact of our rulings. As Justice Brandeis said in Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520 , 44 S.Ct. 412, 416 , 68 L.Ed. 813, 829 (1924), “if we would guide by the light of reason, we must let our minds be bold.” Without the willingness to address difficult and divisive issues by courts, there would not be any representation of poor criminal defendants and the public defender systems that have been created would not now exist; many school systems may not have yet been integrated; ‘Jim Crow' would be not only alive, but vigorous, in some areas of our country. Without judges willing to resolve great issues there would be no ‘right of privacy.’ Without the courts’ willingness to assume all of its responsibilities our country, and our state, might well be very different.

It is, in my view, an important function of this Court to answer questions such as is presented in this case — whatever way we answer it. And I believe that we, at the least, should begin the process of considering the matter of ensuring equal access to justice by determining whether, and if applicable, when, legal counsel should be provided for economically deprived parents, who become defendants at the instigation of the State, or of third parties as in this case, and are faced with the prospect of losing the most fundamental and constitutional of rights, the right to parent. By our failure to determine the constitutional limits of the rights, if any at all, of the indigent to provided representation, the issue remains a ‘bouncing ball,’ ¹³⁴ subject to being bounced back and forth between the legislative, executive, and judicial branches of government, each branch leaving it to the other to address. Until the advocates for provided representation know whether such rights are constitutional in nature in the first instance, and if so, the limits of the constitutional rights, they cannot sufficiently take their case to the other branches of government.

It is with this Court, not with the other branches of government, that the duty has evolved under the separation of powers doctrine, to determine constitutional issues. The answers being sought in this Court, whatever the answers may be, cannot be found anywhere else. In my view, we should no longer leave them, and this issue, in limbo. A member of the criminal milieu of our society is guaranteed and provided counsel.

But the majority of the Court today declines to resolve whether parents of low economic means, are entitled to a constitutional right to provided counsel in judicial proceedings which others have initiated in which parents may lose their right to be a full parent to their children. I think, simply, that it is wrong to avoid the issue. The facts in the present custody related case are not even as egregious as many we see. In many cases a poor, sometimes undereducated and unsophisticated, parent is faced with the full might of the State, an entity that itself seeks to deprive the parent of his or her children.

If a poor person is faced with the prospect of going to jail for a minor theft offense, she is provided counsel. Yet, if the same person is forced into court where she is faced with the prospect of losing a child, or losing partial or full parental rights, to the State or to a third party, she is not provided counsel. While I certainly cannot speak for the individual judges of this Court, it is my belief that there is no judge on this Court that believes in his or her heart or mind, that justice is equal between the poor and the rich — even in the tradition hallowed halls of our appellate courts. Each of us knows, I believe, that an unrepresented parent involved in the appellate process in respect to custody, visitation, or parental termination issues, ¹³⁵ when opposed by competent counsel for the opposing party (sometimes opposed by an organ of the State with its legions of lawyers), is normally not afforded the equal protection of the laws, i.e., an equal access to justice to which all citizens are entitled — in spite of the efforts of this Court to afford that equality.

With the constraints of the adversarial court system, and the prohibitions it (and our cases) place upon judges not to assist either side, the poor, unrepresented parent faced with experienced counsel on the other side is at a great, system-built-in, disadvantage. I am fully aware that the United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S.Ct. 2158 , 68 L.Ed.2d 640 (1981) (a case involving the State’s attempt to terminate parental rights), over twenty years ago, held that the right to counsel under the federal constitution did not extend beyond the loss of physical liberty, stating: “The pre-eminent generalization that emerges from this Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.... “Significantly, as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.... “In sum, the Court’s precedents speak with one voice about what ‘fundamental fairness’ has