II.

THE VALUE OF PROCEDURE

Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, v.

John KELLY et al.
397 U.S. 254 (1970)
U.S. Supreme Court
March 23, 1970

Mr. Justice BRENNAN delivered the opinion of the Court.

[I] The question for decision is whether a State that terminates public assistance
payments to a particular recipient without affording him the opportunity for an
evidentiary hearing prior to termination denies the recipient procedural due process in
violation of the Due Process Clause of the Fourteenth Amendment.
[P] This action was brought in the District Court for the Southern District of New
York by residents of New York City receiving financial aid under the federally assisted
program of Aid to Families with Dependent Children (AFDC) or under New York State’s
general Home Relief program.1 Their complaint alleged that the New York State and
New York City officials administering these programs terminated, or were about to
terminate, such aid without prior notice and hearing, thereby denying them due process of
law.2 At the time the suits were filed there was no requirement of prior notice or hearing
of any kind before termination of financial aid. However, the State and city adopted
procedures for notice and hearing after the suits were brought, and the plaintiffs,
appellees here, then challenged the constitutional adequacy of those procedures.
[F] The State Commissioner of Social Services amended the State Department of
Social Services’ Official Regulations to require that local social services officials
proposing to discontinue or suspend a recipient’s financial aid do so according to a
procedure that conforms to either subdivision (a) or subdivision (b) of §351.26 of the

1
AFDC was established by the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. §§ 601-
610 (1964 ed. and Supp. IV). It is a categorical assistance program supported by federal grants-in-aid but
administered by the States according to regulations of the Secretary of Health, Education, and Welfare....
Home Relief is a general assistance program financed and administered solely by New York state and local
governments.... It assists any person unable to support himself or to secure support from other sources....
2
Two suits were brought and consolidated in the District Court. The named plaintiffs were 20 in number,
including intervenors. Fourteen had been or were about to be cut off from AFDC, and six from Home
Relief. During the course of this litigation most, though not all, of the plaintiffs either received a ‘fair
hearing’ ...or were restored to the rolls without a hearing. However, even in many of the cases where
payments have been resumed, the underlying questions of eligibility that resulted in the bringing of this suit
have not been resolved. For example, Mrs. Altagracia Guzmán alleged that she was in danger of losing
AFDC payments for failure to cooperate with the City Department of Social Services in suing her estranged
husband. She contended that the departmental policy requiring such cooperation was inapplicable to the
facts of her case. The record shows that payments to Mrs. Guzmán have not been terminated, but there is
no indication that the basic dispute over her duty to cooperate has been resolved, or that the alleged danger
of termination has been removed. Home Relief payments to Juan DeJesús were terminated because he
refused to accept counseling and rehabilitation for drug addiction. Mr. DeJesus maintains that he does not
use drugs. His payments were restored the day after his complaint was filed. But there is nothing in the
record to indicate that the underlying factual dispute in his case has been settled.
regulations as amended.3 The City of New York elected to promulgate a local procedure
according to subdivision (b). That subdivision, so far as here pertinent, provides that the
local procedure must include the giving of notice to the recipient of the reasons for a
proposed discontinuance or suspension at least seven days prior to its effective date, with
notice also that upon request the recipient may have the proposal reviewed by a local
welfare official holding a position superior to that of the supervisor who approved the
proposed discontinuance or suspension, and, further, that the recipient may submit, for
purposes of the review, a written statement to demonstrate why his grant should not be
discontinued or suspended. The decision by the reviewing official whether to discontinue
or suspend aid must be made expeditiously, with written notice of the decision to the
recipient. The section further expressly provides that ‘(a)ssistance shall not be
discontinued or suspended prior to the date such notice of decision is sent to the recipient
and his representative, if any, or prior to the proposed effective date of discontinuance or
suspension, whichever occurs later.’
Pursuant to subdivision (b), the New York City Department of Social Services
promulgated Procedure No. 68-18. A caseworker who has doubts about the recipient’s
continued eligibility must first discuss them with the recipient. If the caseworker
concludes that the recipient is no longer eligible, he recommends termination of aid to a
unit supervisor. If the latter concurs, he sends the recipient a letter stating the reasons for
proposing to terminate aid and notifying him that within seven days he may request that a
higher official review the record, and may support the request with a written statement
prepared personally or with the aid of an attorney or other person. If the reviewing
official affirms the determination of ineligibility, aid is stopped immediately and the
recipient is informed by letter of the reasons for the action. Appellees’ challenge to this
procedure emphasizes the absence of any provisions for the personal appearance of the
recipient before the reviewing official, for oral presentation of evidence, and for
confrontation and cross-examination of adverse witnesses.4 However, the letter does

3
The adoption in February 1968 and the amendment in April of Regulation §351.26 coincided with or
followed several revisions by the Department of Health, Education, and Welfare of its regulations
implementing 42 U.S.C. §602(a)(4), which is the provision of the Social Security Act that requires a State
to afford a ‘fair hearing’ to any recipient of aid under a federally assisted program before termination of his
aid becomes final. This requirement is satisfied by a post-termination ‘fair hearing’ under regulations
presently in effect.... A new HEW regulation, 34 Fed Reg. 1144 (1969), now scheduled to take effect in
July 1970, 34 Fed.Reg. 13595 (1969), would require continuation of AFDC payments until the final
decision after a ‘fair hearing’ and would give recipients a right to appointed counsel at ‘fair hearings.’ 45
CFR §205.10, 34 Fed.Reg. 1144 (1969); 45 CFR §220.25, 34 Fed.Reg. 1356 (1969).... Another recent
regulation now in effect requires a local agency administering AFDC to give ‘advance notice of questions it
has about an individual’s eligibility so that a recipient has an opportunity to discuss his situation before
receiving formal written notice of reduction in payment or termination of assistance.’ Id., pt. IV, §2300(d)
(5). This case presents no issue of the validity or construction of the federal regulations. It is only
subdivision (b) of §351.26 of the New York State regulations and implementing procedure 68-18 of New
York City that pose the constitutional question before us.... Even assuming that the constitutional question
might be avoided in the context of AFDC by construction of the Social Security Act or of the present
federal regulations thereunder, or by waiting for the new regulations to become effective, the question must
be faced and decided in the context of New York’s Home Relief program, to which the procedures also
apply.
4
These omissions contrast with the provisions of subdivision (a) of §351.26, the validity of which is not at
issue in this Court. That subdivision also requires written notification to the recipient at least seven days
prior to the proposed effective date of the reasons for the proposed discontinuance or suspension.
inform the recipient that he may request a post-termination ‘fair hearing.’ This is a
proceeding before an independent state hearing officer at which the recipient may appear
personally, offer oral evidence, confront and cross-examine the witnesses against him,
and have a record made of the hearing. If the recipient prevails at the ‘fair hearing’ he is
paid all funds erroneously withheld.... A recipient whose aid is not restored by a ‘fair
hearing’ decision may have judicial review. N.Y. Civil Practice Law and Rules, Art. 78
(1963). The recipient is so notified, 18 NYCRR s 84.16.

[I] The constitutional issue to be decided, therefore, is the narrow one whether the
Due Process Clause requires that the recipient be afforded an evidentiary hearing before
the termination of benefits. [P] The District Court held that only a pretermination
evidentiary hearing would satisfy the constitutional command, and rejected the argument
of the state and city officials that the combination of the post-termination ‘fair hearing’
with the informal pre-termination review disposed of all due process claims.... Although
state officials were party defendants in the action, only the Commissioner of Social
Services of the City of New York appealed. We noted probable jurisdiction, 394 U.S.
971 (1969), to decide important issues that have been the subject of disagreement in
principle between the three-judge court in the present case and that convened in Wheeler
v. Montgomery, 397 U.S. 280. We affirm.
[R] Appellant does not contend that procedural due process is not applicable to
the termination of welfare benefits. Such benefits are a matter of statutory entitlement for
persons qualified to receive them. Their termination involves state action that adjudicates
important rights. The constitutional challenge cannot be answered by an argument that
public assistance benefits are “a ‘privilege’ and not a ‘right.’” Shapiro v. Thompson, 394
U.S. 618, 627 n. 6 (1969). Relevant constitutional restraints apply as much to the
withdrawal of public assistance benefits as to disqualification for unemployment
compensation, Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption,
Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment,
Slochower v. Board of Higher Education, 350 U.S. 551 (1956). The extent to which
procedural due process must be afforded the recipient is influenced by the extent to which
he may be “condemned to suffer grievous loss,” Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123 (1951) (Frankfurter, J., concurring), and depends upon whether
the recipient’s interest in avoiding that loss outweighs the governmental interest in
summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers
Union, etc. v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748--1749, 6 L.Ed.2d 1230
(1961), ‘consideration of what procedures due process may require under any given set of
circumstances must begin with a determination of the precise nature of the government
function involved as well as of the private interest that has been affected by governmental
action.’...

However, the notification must further advise the recipient that if he makes a request therefor he will be
afforded an opportunity to appear at a time and place indicated before the official identified in the notice,
who will review his case with him and allow him to present such written and oral evidence as the recipient
may have to demonstrate why aid should not be discontinued or suspended. The District Court assumed
that subdivision (a) would be construed to afford rights of confrontation and cross-examination and a
decision based solely on the record. Kelly v. Wyman, 294 F.Supp. 893, 906-907 (1968).
 It is true, of course, that some governmental benefits may be administratively
terminated without affording the recipient a pre-termination evidentiary hearing. [1] But
we agree with the District Court that when welfare is discontinued, only a pre-termination
evidentiary hearing provides the recipient with procedural due process.... [2] For
qualified recipients, welfare provides the means to obtain essential food, clothing,
housing, and medical care.... Thus the crucial factor in this context--a factor not present
in the case of the blacklisted government contractor, the discharged government
employee, the taxpayer denied a tax exemption, or virtually anyone else whose
governmental entitlements are ended--is that termination of aid pending resolution of a
controversy over eligibility may deprive an eligible recipient of the very means by which
to live while he waits. Since he lacks independent resources, his situation becomes
immediately desperate. His need to concentrate upon finding the means for daily
subsistence, in turn, adversely affects his ability to seek redress from the welfare
bureaucracy.
[3] Moreover, important governmental interests are promoted by affording
recipients a pre-termination evidentiary hearing. From its founding the Nation’s basic
commitment has been to foster the dignity and well-being of all persons within its
borders. We have come to recognize that forces not within the control of the poor
contribute to their poverty. This perception, against the background of our traditions, has
significantly influenced the development of the contemporary public assistance system.
Welfare, by meeting the basic demands of subsistence, can help bring within the reach of
the poor the same opportunities that are available to others to participate meaningfully in
the life of the community. At the same time, welfare guards against the societal malaise
that may flow from a widespread sense of unjustified frustration and insecurity. Public
assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity.’ The same governmental
interests that counsel the provision of welfare, counsel as well its uninterrupted provision
to those eligible to receive it; pre-termination evidentiary hearings are indispensable to
that end.
Appellant does not challenge the force of these considerations but argues that they
are outweighed by countervailing governmental interests in conserving fiscal and
administrative resources. These interests, the argument goes, justify the delay of any
evidentiary hearing until after discontinuance of the grants. Summary adjudication
protects the public fisc by stopping payments promptly upon discovery of reason to
believe that a recipient is no longer eligible. Since most terminations are accepted
without challenge, summary adjudication also conserves both the fisc and administrative
time and energy by reducing the number of evidentiary hearings actually held.
[4] We agree with the District Court, however, that these governmental interests
are not overriding in the welfare context. The requirement of a prior hearing doubtless
involves some greater expense, and the benefits paid to ineligible recipients pending
decision at the hearing probably cannot be recouped, since these recipients are likely to
be judgment-proof. But the State is not without weapons to minimize these increased
costs. [5] Much of the drain on fiscal and administrative resources can be reduced by
developing procedures for prompt pre-termination hearings and by skillful use of
personnel and facilities. Indeed, the very provision for a post-termination evidentiary
hearing in New York’s Home Relief program is itself cogent evidence that the State
recognizes the primacy of the public interest in correct eligibility determinations and
therefore in the provision of procedural safeguards. Thus, the interest of the eligible
recipient in uninterrupted receipt of public assistance, coupled with the State’s interest
that his payments not be erroneously terminated, clearly outweighs the State’s competing
concern to prevent any increase in its fiscal and administrative burdens. As the District
Court correctly concluded, ‘(t)he stakes are simply too high for the welfare recipient, and
the possibility for honest error or irritable misjudgment too great, to allow termination of
aid without giving the recipient a chance, if he so desires, to be fully informed **1020 of
the case against him so that he may contest its basis and produce evidence in rebuttal.’
294 F.Supp., at 904--905.

II

We also agree with the District Court, however, that the pre-termination hearing
need not take the form of a judicial or quasi-judicial trial. We bear in mind that the
statutory ‘fair hearing’ will provide the recipient *267 with a full administrative review.
Accordingly, the pre-termination hearing has one function only: to produce an initial
determination of the validity of the welfare department’s grounds for discontinuance of
payments in order to protect a recipient against an erroneous termination of his benefits....
Thus, a complete record and a comprehensive opinion, which would serve primarily to
facilitate judicial review and to guide future decisions, need not be provided at the pre-
termination stage. We recognize, too, that both welfare authorities and recipients have an
interest in relatively speedy resolution of questions of eligibility, that they are used to
dealing with one another informally, and that some welfare departments have very
burdensome caseloads. These considerations justify the limitation of the pre-termination
hearing to minimum procedural safeguards, adapted to the particular characteristics of
welfare recipients, and to the limited nature of the controversies to be resolved. We wish
to add that we, no less than the dissenters, recognize the importance of not imposing upon
the States or the Federal Government in this developing field of law any procedural
requirements beyond those demanded by rudimentary due process.
[6] ‘The fundamental requisite of due process of law is the opportunity to be heard.’
Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). The
hearing must be ‘at a meaningful time and in a meaningful manner.’ Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). In the present
context these principles require that a recipient have timely and adequate notice detailing
the reasons for a *268 proposed termination, and an effective opportunity to defend by
confronting any adverse witnesses and by presenting his own arguments and evidence
orally. These rights are important in cases such as those before us, where recipients have
challenged proposed terminations as resting on incorrect or misleading factual premises
or on misapplication of rules or policies to the facts of particular cases.
[7] We are not prepared to say that the seven-day notice currently provided by
New York City is constitutionally insufficient per se, although there may be cases where
fairness would require that a longer time be given. Nor do we see any constitutional
deficiency in the content or form of the notice. New York employs both a letter and a
personal conference with a caseworker to inform a recipient of the precise questions
raised about his continued eligibility. Evidently the recipient is told the legal and factual
bases for the Department’s doubts. This combination is probably the most effective
method of communicating with recipients.
The city’s procedures presently do not permit recipients to appear personally with
or without counsel before the official who finally determines continued eligibility. Thus
a recipient is not permitted to present evidence to that official orally, or to confront or
cross-examine adverse witnesses. These omissions are fatal to the constitutional
adequacy of the procedures.
[8] The opportunity to be heard must be tailored to the *269 capacities and
circumstances of those who are to be heard. It is not enough that a welfare recipient may
present his position to the decision maker in writing or second-hand through his
caseworker. Written submissions are an unrealistic option for most recipients, who lack
the educational attainment necessary to write effectively and who cannot obtain
professional assistance. Moreover, written submissions do not afford the flexibility of
oral presentations; they do not permit the recipient to mold his argument to the issues the
decision maker appears to regard as important. Particularly where credibility and
veracity are at issue, as they must be in many termination proceedings, written
submissions are a wholly unsatisfactory basis for decision. The second-hand presentation
to the decisionmaker by the caseworker has its own deficiencies; since the caseworker
usually gathers the facts upon which the charge of ineligibility rests, the presentation of
the recipient’s side of the controversy cannot safely be left to him. Therefore a recipient
must be allowed to state his position orally. Informal procedures will suffice; in this
context due process does not require a particular order of proof or mode of offering
evidence....
[9] In almost every setting where important decisions turn on questions of fact,
due process requires an opportunity to confront and cross-examine adverse witnesses....
What we said in *270 Greene v. McElroy, 360 U.S. 474, 496--497, 79 S.Ct. 1400, 1413,
3 L.Ed.2d 1377 (1959), is particularly pertinent here:

Certain principles have remained relatively immutable in our jurisprudence. One

of these is that where governmental action seriously injures an individual, and the
reasonableness of the action depends on fact findings, the evidence used to prove
the Government’s case must be disclosed to the individual so that he has an
opportunity to show that it is untrue. While this is important in the case of
documentary evidence, it is even more important where the evidence consists of
the testimony of individuals whose memory might be faulty or who, in fact, might
be perjurers or persons motivated by malice, vindictiveness, intolerance,
prejudice, or jealousy. We have formalized these protections in the requirements
of confrontation and cross-examination. They have ancient roots. They find
expression in the Sixth Amendment... This Court has been zealous to protect
these rights from erosion. It has spoken out not only in criminal cases, ...but also
in all types of cases where administrative ...actions were under scrutiny.

Welfare recipients must therefore be given an opportunity to confront and cross-examine

the witnesses relied on by the department.
[10] ‘The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel.’ Powell v. Alabama, 287 U.S. 45, 68--69,
53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). We do not say that counsel must be provided at
the pre-termination hearing, but only that the recipient must be allowed to retain an
attorney if he so desires. Counsel can help delineate the issues, present the factual
contentions in an orderly manner, conduct cross-examination, and generally safeguard the
*271 interests of the recipient. We do not anticipate that this assistance will unduly
prolong or otherwise encumber the hearing. Evidently HEW has reached the same
conclusion....
Finally, the decisionmaker’s conclusion as to a recipient’s eligibility must rest
solely on the legal rules and evidence adduced at the hearing.... To demonstrate
compliance with this elementary requirement, the decision maker should state the reasons
for his determination and indicate the evidence he relied on, ...though his statement need
not amount to a full opinion or even formal findings of fact and conclusions of law. And,
of course, an impartial decision maker is essential.... We agree with the District Court
that prior involvement in some aspects of a case will not necessarily bar a welfare official
from acting as a decision maker. He should not, however, have participated in making
the determination under review.

Affirmed.

Mr. Justice BLACK, dissenting.

[1] In the last half century the United States, along with many, perhaps most,
other nations of the world, has moved far toward becoming a welfare state, that is, a
nation that for one reason or another taxes its most *272 affluent people to help support,
feed, clothe, and shelter its less fortunate citizens. The result is that today more than nine
million men, women, and children in the United States receive some kind of state or
federally financed public assistance in the form of allowances or gratuities, generally paid
them periodically, usually by the week, month, or quarter. Since these gratuities are paid
on the basis of need, the list of recipients is not static, and some people go off the lists
and others are added from time to time. These ever-changing lists put a constant
administrative burden on government and it certainly could not have reasonably
anticipated that this burden would include the additional procedural expense imposed by
the Court today.
The dilemma of the ever-increasing poor in the midst of constantly growing
affluence presses upon us and must inevitably be met within the framework of our
democratic constitutional government, if our system is to survive as such. It was largely
to escape just such pressing economic problems and attendant government repression that
people from **1023 Europe, Asia, and other areas settled this country and formed our
Nation. Many of those settlers had personally suffered from persecutions of various
kinds and wanted to get away from governments that had unrestrained powers to make
life miserable for their citizens. It was for this reason, or so I believe, that on reaching
these new lands the early settlers undertook to curb their governments by confining their
powers *273 within written boundaries, which eventually became written constitutions.
They wrote their basic charters as nearly as men’s collective wisdom could do so as to
proclaim to their people and their officials an emphatic command that: ‘Thus far and no
farther shall you go; and where we neither delegate powers to you, nor prohibit your
exercise of them, we the people are left free.’
Representatives of the people of the Thirteen Original Colonies spent long, hot
months in the summer of 1787 in Philadelphia, Pennsylvania, creating a government of
limited powers. They divided it into three departments-- Legislative, Judicial, and
Executive. The Judicial Department was to have no part whatever in making any laws.
In fact proposals looking to vesting some power in the Judiciary to take part in the
legislative process and veto laws were offered, considered, and rejected by the
Constitutional Convention. In my *274 judgment there is not one word, phrase, or
sentence from the beginning to the end of the Constitution from which it can be inferred
that judges were granted any such legislative power. [2] True, Marbury v. Madison, 1
Cranch 137, 2 L.Ed. 60 (1803), held, and properly, I think, that courts must be the final
interpreters of the Constitution, and I recognize that the holding can provide an
opportunity to slide imperceptibly into constitutional amendment and law making. But
when federal judges use this judicial power for legislative purposes, I think they wander
out of their field of vested powers and transgress into the area constitutionally assigned to
the Congress and the people. That is precisely what I believe the Court is doing in this
case. Hence my dissent.
The more than a million names on the relief rolls in New York, and the more than
nine million names on the rolls of all the 50 States were not put there at random. The
names are there because state welfare officials believed that those people were eligible
for assistance. Probably in the officials’ haste to make out the lists many names were put
there erroneously in order to alleviate immediate suffering, and undoubtedly some people
are drawing relief who are not entitled **1024 under the law to do so. [3] Doubtless
some draw relief checks from time to time who know they are not eligible, either because
they are not actually in need or for some other reason. Many of those who thus draw
undeserved gratuities are without sufficient property to enable the government to collect
back from them any money they wrongfully receive. But the Court today holds that it
would violate the Due Process Clause of the Fourteenth Amendment to stop paying those
people weekly or monthly allowances unless the government first affords them a full
‘evidentiary hearing’ even *275 though welfare officials are persuaded that the recipients
are not rightfully entitled to receive a penny under the law. In other words, although
some recipients might be on the lists for payment wholly because of deliberate fraud on
their part, the Court holds that the government is helpless and must continue, until after
an evidentiary hearing, to pay money that it does not owe, never has owed, and never
could owe. I do not believe there is any provision in our Constitution that should thus
paralyze the government’s efforts to protect itself against making payments to people
who are not entitled to them.
Particularly do I not think that the Fourteenth Amendment should be given such
an unnecessarily broad construction. That Amendment came into being primarily to
protect Negroes from discrimination, and while some of its language can and does protect
others, all know that the chief purpose behind it was to protect ex-slaves.... The Court,
however, relies upon the Fourteenth Amendment and in effect says that failure of the
government to pay a promised charitable instalment to an individual deprives that
individual of his own property, in violation of the Due Process Clause of the Fourteenth
Amendment. [4] It somewhat strains credulity to say that the government’s promise of
charity to an individual is property belonging to that individual when the government
denies that the individual is honestly entitled to receive such a payment.
I would have little, if any, objection to the majority’s decision in this case if it
were written as the report of the House Committee on Education and Labor, but as an
opinion ostensibly resting on the language of the Constitution I find it woefully deficient.
Once the verbiage is pared away it is obvious that this Court today adopts the views of
the District Court ‘that to cut off a welfare recipient in the face of ...‘brutal need’ without
a prior *276 hearing of some sort is unconscionable,’ and therefore, says the Court,
unconstitutional. The majority reaches this result by a process of weighing ‘the
recipient’s interest in avoiding’ the termination of welfare benefits against ‘the
governmental interest in summary adjudication.’ Ante, at 1018. Today’s balancing act
requires a ‘pre-termination evidentiary hearing,’ yet there is nothing that indicates what
tomorrow’s balance will be. [5] Although the majority attempts to bolster its decision
with limited quotations from prior cases, it is obvious that today’s result doesn’t depend
on the language of the Constitution itself or the principles of other decisions, but solely
on the collective judgment of the majority as to what would be a fair and humane
procedure in this case.
This decision is thus only another variant of the view often expressed by some
members of this Court that the Due Process Clause forbids any conduct that a majority of
the Court believes ‘unfair,’ ‘indecent,’ or ‘shocking to their consciences.’ See, e.g.,
Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952).
Neither these words nor any like them appear anywhere in the Due Process Clause. If
they did, they would leave the majority of Justices free to hold any conduct
unconstitutional that they should conclude **1025 on their own to be unfair or shocking
to them. Had the drafters of the Due Process Clause meant to leave judges such
ambulatory power to declare *277 laws unconstitutional, the chief value of a written
constitution, as the Founders saw it, would have been lost. In fact, if that view of due
process is correct, the Due Process Clause could easily swallow up all other parts of the
Constitution. And truly the Constitution would always be ‘what the judges say it is’ at a
given moment, not what the Founders wrote into the document. A written constitution,
designed to guarantee protection against governmental abuses, including those of judges,
must have written standards that mean something definite and have an explicit content. I
regret very much to be compelled to say that the Court today makes a drastic and
dangerous departure from a Constitution written to control and limit the government and
the judges and moves toward a constitution designed to be no more and no less than what
the judges of a particular social and economic philosophy declare on the one hand to be
fair or on the other hand to be shocking and unconscionable.
The procedure required today as a matter of constitutional law finds no precedent
in our legal system. Reduced to its simplest terms, the problem in this case is similar to
that frequently encountered when two parties have an ongoing legal relationship that
requires one party to make periodic payments to the other. [6] Often the situation arises
where the party ‘owing’ the money stops paying it and justifies his conduct by arguing
that the recipient is not legally entitled to payment. The recipient can, of course, disagree
and go to court to compel payment. But I know of no situation in our legal system in
which the person alleged to owe money to *278 another is required by law to continue
making payments to a judgment-proof claimant without the benefit of any security or
bond to insure that these payments can be recovered if he wins his legal argument. Yet
today’s decision in no way obligates the welfare recipient to pay back any benefits
wrongfully received during the pretermination evidentiary hearings or post any bond, and
in all ‘fairness’ it could not do so. These recipients are by definition too poor to post a
bond or to repay the benefits that, as the majority assumes, must be spent as received to
insure survival.
The Court apparently feels that this decision will benefit the poor and needy. In
my judgment the eventual result will be just the opposite. While today’s decision
requires only an administrative, evidentiary hearing, the inevitable logic of the approach
taken will lead to constitutionally imposed, time-consuming delays of a full adversary
process of administrative and judicial review. In the next case the welfare recipients are
bound to argue that cutting off benefits before judicial review of the agency’s decision is
also a denial of due process. [7] Since, by hypothesis, **1026 termination of aid at that
point may still ‘deprive an eligible recipient of the very means by which to live while he
waits,’ ante, at 1018, I would be surprised if the weighing process did not compel the
conclusion that termination without full judicial review would be unconscionable. After
all, at each step, as the majority seems to feel, the issue is only one of weighing the
government’s pocketbook against the actual survival of the recipient, and surely that
balance must always tip in favor of the individual. Similarly today’s decision requires
only the opportunity to have the benefit of counsel at the administrative hearing, but it is
difficult to believe that the same reasoning process would not require the appointment of
counsel, for otherwise the right to counsel is a meaningless one since these *279 people
are too poor to hire their own advocates.... Thus the end result of today’s decision may
well be that the government, once it decides to give welfare benefits, cannot reverse that
decision until the recipient has had the benefits of full administrative and judicial review,
including, of course, the opportunity to present his case to this Court. Since this process
will usually entail a delay of several years, the inevitable result of such a constitutionally
imposed burden will be that the government will not put a claimant on the rolls initially
until it has made an exhaustive investigation to determine his eligibility. [8] While this
Court will perhaps have insured that no needy person will be taken off the rolls without a
full ‘due process’ proceeding, it will also have insured that many will never get on the
rolls, or at least that they will remain destitute during the lengthy proceedings followed to
determine initial eligibility.
For the foregoing reasons I dissent from the Court’s holding. The operation of a
welfare state is a new experiment for our Nation. For this reason, among others, I feel
that new experiments in carrying out a welfare program should not be frozen into our
constitutional structure. They should be left, as are other legislative determinations, to
the Congress and the legislatures that the people elect to make our laws.

WHEELER et al. v. MONTGOMERY, Director, Department Of Social Welfare of

California, et al.
397 U.S. 280
U.S. Supreme Court
March 23, 1970
Mr. Justice BRENNAN delivered the opinion of the Court.

This is a companion case to ...Goldberg v. Kelly.... It is a class action brought by

all recipients of old age benefits who are subject to California welfare termination
provisions. A three-judge District Court for the Northern District of California held that
the California procedure for pre-termination review in welfare cases satisfies the
requirements of the Due Process Clause, 296 F.Supp. 138 (1968), and we noted probable
jurisdiction, 394 U.S. 970 (1969). This procedure requires notice to the recipient of the
proposed discontinuance or suspension at least three days prior to its effective date,
together with reasons for the intended action and a statement of what information or
action is required to re-establish eligibility, advice that the recipient may meet his
caseworker before his benefits are terminated “to discuss the entire matter informally for
purposes of clarification and, where possible, resolution,” and assurance that there will be
“prompt investigation” of the case and restoration of payments “as soon as there is
eligibility” to receive them. The procedure does not, however, [*282] afford the
recipient an evidentiary hearing at which he may personally appear to offer oral evidence
and confront and cross-examine the witnesses against him. In Goldberg v. Kelly, supra,
decided today, we held that procedural due process requires such an evidentiary pre-
termination hearing before welfare payments may be discontinued or suspended.
Accordingly, the judgment of [**1028] the District Court must be and is reversed on the
authority of Goldberg v. Kelly.
Reversed.

Mr. Justice BLACK, for the reasons set forth in his dissenting opinion in ...Goldberg v.
Kelly ...dissents and would affirm the judgment below.

Mr. Chief Justice BURGER, with whom Mr. Justice BLACK joins, dissenting*

Although I agree in large part with MR. Justice BLACK’s views in ...Goldberg v.
Kelly, ...there are additional factors I wish to mention in dissent from today’s unwise and
precipitous constitutional holdings.
[1] The procedures for review of administrative action in the “welfare” area are in
a relatively early stage of development; HEW has already taken the initiative by
promulgating regulations requiring that AFDC payments [*283] be continued until a
final decision after a “fair hearing” is held. n1 The net effect would be to provide a
hearing prior to a termination of benefits. Indeed, the HEW administrative regulations go
far beyond the result reached today since they require that recipients be given the right to
appointed counsel, n2 a position expressly rejected by the majority. As the majority
notes, ...these regulations are scheduled to take effect in July 1970. Against this
background I am baffled as to why we should engage in “legislating” via constitutional
fiat when an apparently reasonable result has been accomplished administratively.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

*
This opinion applies also to ...Goldberg v. Kelly....
n1 45 CFR § 205.10, 34 Fed. Reg. 1144 (1969).

n2 45 CFR § 220.25, 34 Fed. Reg. 1356 (1969). See also HEW Handbook, pt. IV, §§
2300 (d)(5), 6200-6400.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

That HEW has already adopted such regulations suggests to me that we ought to
hold the heavy hand of constitutional adjudication and allow evolutionary processes at
various administrative levels to develop, given their flexibility to make adjustments in
procedure without long delays. This would permit orderly development of procedural
solutions, aided as they would be by expert guidance available within federal agencies
which have an overview of the entire problem in the 50 States. I cannot accept -- indeed
I reject -- any notion that a government which pays out billions of dollars to nearly nine
million welfare recipients is heartless, insensitive, or [***311] indifferent to the
legitimate needs of the poor.
The Court’s action today seems another manifestation of the now familiar
constitutionalizing syndrome: once some presumed flaw is observed, the Court then
eagerly accepts the invitation to find a constitutionally “rooted” remedy. If no provision
is explicit on the point, it is then seen as “implicit” or commanded by the vague and
nebulous concept of “fairness.”
I can share the impatience of all who seek instant solutions; there is a great
temptation in this area to frame remedies that seem fair and can be mandated forthwith as
against administrative or congressional action that calls for careful and extended study.
That is thought too slow. But, however cumbersome or glacial, this is the procedure the
Constitution contemplated.
[2] I would not suggest that the procedures of administering the Nation’s complex
welfare programs are beyond the reach of courts, but I would wait until more is known
about the problems before fashioning solutions in the rigidity of a constitutional
holding.By allowing the administrators to deal with these problems we leave room for
adjustments if, for example, it is found that a particular hearing process is too costly. The
history of the complexity of the administrative process followed by judicial review as we
have seen it for the past 30 years should suggest the possibility that new layers of
procedural protection may become an intolerable drain on the very funds earmarked for
food, clothing, and other living essentials.
[3, 4] Aside from the administrative morass that today’s decision could well
create, the Court should also be cognizant of the legal precedent it may be setting. The
majority holding raises intriguing possibilities concerning the right to a hearing at other
stages in the welfare process which affect the total sum of assistance, even though the
action taken might fall short of complete termination. For example, does the Court’s
holding [*285] embrace welfare reductions or denial of increases as opposed to
terminations, or decisions concerning initial applications or requests for special
assistance? The Court supplies no distinguishable considerations and leaves these crucial
questions unanswered.
Mr. Justice STEWART, dissenting*

Although the question is for me a close one, I do not believe that the procedures
that New York and California now follow in terminating welfare payments are violative
of the United States Constitution....

F. David MATHEWS, Secretary of Health, Education, and Welfare, v. George H.

ELDRIDGE

424 U.S. 319 (1976)

U.S. Supreme Court
February 24, 1976

Mr. Justice POWELL delivered the opinion of the Court.

[I] The issue in this case is whether the Due Process Clause of the Fifth Amendment
requires that prior to the termination of Social Security disability benefit payments the
recipient be afforded an opportunity for an evidentiary hearing.

[F] Cash benefits are provided to workers during periods in which they are completely
disabled under the disability insurance benefits program created by the 1956 amendments
to Title II of the Social Security Act. 70 Stat. 815, 42 U.S.C. § 423. Respondent
Eldridge was first awarded benefits in June 1968. In March 1972, he received a
questionnaire from the state agency charged with monitoring his medical condition.
Eldridge completed *324 the questionnaire, indicating that his condition had not
improved and identifying the medical sources, including physicians, from whom he had
received treatment recently. The state agency then obtained reports from his physician
and a psychiatric consultant. After considering these reports and other information in his
file the agency informed Eldridge by letter that it had made a tentative determination that
his disability had ceased in May 1972. The letter included a statement of reasons for the
proposed termination of benefits, and advised Eldridge that he might request reasonable
time in which to obtain and submit additional information pertaining to his condition.
In his written response, Eldridge disputed one characterization of his medical condition
and indicated that the agency already had enough evidence to establish his disability.
The state agency then made its final determination that he had ceased to be disabled in
May 1972. This determination was accepted by the Social Security Administration
(SSA), which notified Eldridge in July that his benefits would terminate after that month.
The notification also advised him of his right to seek reconsideration by the state agency
of this initial determination within six months.

*
This opinion applies also to ...Goldberg v. Kelly....
[P] Instead of requesting reconsideration Eldridge commenced this action challenging the
constitutional validity *325 of the administrative procedures established by the Secretary
of Health, Education, and Welfare for assessing whether there exists a continuing
disability. He sought an immediate reinstatement of benefits pending a hearing on the
issue of his disability. [FN3] 361 F.Supp. 520 (W.D.Va.1973). The Secretary moved to
dismiss on the grounds that Eldridge’s benefits had been terminated in accordance with
valid administrative regulations and procedures and that he had failed to exhaust
available remedies. In support of his contention that due process requires a
pretermination hearing, Eldridge relied exclusively upon this Court’s decision in
Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), which
established a right to an “evidentiary hearing” prior to termination of welfare benefits.
The Secretary contended that Goldberg was not controlling since eligibility for disability
benefits, unlike eligibility for welfare benefits, is not based on financial need and since
issues of credibility and veracity do not play a significant role in the disability entitlement
decision, which turns primarily on medical evidence.

FN3. The District Court ordered reinstatement of Eldridge’s benefits pending its final
disposition on the merits.

The District Court concluded that the administrative procedures pursuant to which the
Secretary had terminated Eldridge’s benefits abridged his right to procedural due
process…. Relying entirely upon the District Court’s opinion, the Court of Appeals for
the Fourth Circuit affirmed the injunction barring termination of Eldridge’s benefits prior
to an evidentiary hearing. 493 F.2d 1230 (1974). We reverse.

II

[R] At the outset we are confronted by a question as to whether the District Court had
jurisdiction over this suit…. The only avenue for judicial review is 42 U.S.C. § 405(g),
which requires exhaustion of the administrative remedies provided under the Act as a
jurisdictional prerequisite.
Section 405(g) in part provides:

Any individual, after any final decision of the Secretary made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the
Secretary may allow.

On its face § 405(g) thus bars judicial review of any denial of a claim of disability
benefits until after a “final decision” by the Secretary after a “hearing.” It is uncontested
that Eldridge could have obtained full administrative review of the termination of his
benefits, yet failed even to seek reconsideration of the initial determination.
***
The question is whether the denial of Eldridge’s claim to continued benefits was a
sufficiently “final” decision with respect to his constitutional claim to satisfy the statutory
exhaustion requirement. Eldridge concedes that he did not exhaust the full set of
internal-review procedures provided by the Secretary. [Certainly,] cases may arise where
a claimant’s interest in having a particular issue resolved promptly is so great that
deference to the agency’s judgment is inappropriate. This is such a case.
Eldridge’s constitutional challenge is entirely collateral to his substantive claim of
entitlement. Moreover, [a] claim to a predeprivation hearing as a matter of constitutional
right rests on the proposition that full relief cannot be obtained at a postdeprivation
hearing. In light of the Court’s prior decisions, see, e.g., Goldberg v. Kelly, 397 U.S.
254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct.
1983, 32 L.Ed.2d 556 (1972), Eldridge has raised at least a colorable claim that because
of his physical condition and dependency upon the disability benefits, an erroneous
termination would damage him in a way not recompensable through retroactive
payments….
We conclude that the denial of Eldridge’s request for benefits constitutes a final decision
for purposes of s 405(g) jurisdiction over his constitutional claim. We now proceed to
the merits of that claim.

III

[3] Procedural due process imposes constraints on governmental decisions which

deprive individuals of “liberty” or “property” interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment. The Secretary does not contend
that procedural due process is inapplicable to terminations of Social Security disability
benefits. He recognizes, as has been implicit in our prior decisions, e.g., Richardson v.
Belcher, 404 U.S. 78, 80-81, 92 S.Ct. 254, 256-257, 30 L.Ed.2d 231 (1971); Richardson
v. Perales, 402 U.S. 389, 401-402, 91 S.Ct. 1420, 1427-1428, 28 L.Ed.2d 842 (1971);
Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372-1373, 4 L.Ed.2d 1435
(1960), that the interest of an individual in continued receipt of these benefits is a
statutorily created “property” interest protected by the Fifth Amendment. Cf. Arnett v.
Kennedy, 416 U.S. 134, 166, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (Powell, J., concurring
in part) (1974); Board of Regents v. Roth, 408 U.S. 564, 576-578, 92 S.Ct. 2701, 2708-
2710, 33 L.Ed.2d 548 (1972); Bell v. Burson, 402 U.S., at 539, 91 S.Ct., at 1589;
Goldberg v. Kelly, 397 U.S., at 261-262, 90 S.Ct., at 1016-1017. Rather, the Secretary
contends that the existing administrative procedures, detailed below, provide all the
process *333 that is constitutionally due before a recipient can be deprived of that
interest.

**902 [4] This Court consistently has held that some form of hearing is required
before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418
U.S. 539, 557-558, 94 S.Ct. 2963, 2975-2976, 41 L.Ed.2d 935 (1974). See, e.g. Phillips
v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597, 51 S.Ct. 608, 611-612, 75
L.Ed. 1289 (1931). See also Dent v. West Virginia, 129 U.S. 114, 124-125, 9 S.Ct. 231,
234, 32 L.Ed. 623 (1889). The “right to be heard before being condemned to suffer
grievous loss of any kind, even though it may not involve the stigma and hardships of a
criminal conviction, is a principle basic to our society.” Joint Anti-Fascist Comm. v.
McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J.,
concurring). The fundamental requirement of due process is the opportunity to be heard
“at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545,
552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). See Grannis v. Ordean, 234 U.S. 385,
394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Eldridge agrees that the review
procedures available to a claimant before the initial determination of ineligibility
becomes final would be adequate if disability benefits were not terminated until after the
evidentiary hearing stage of the administrative process. The dispute centers upon what
process is due prior to the initial termination of benefits, pending review.
In recent years this Court increasingly has had occasion to consider the extent to which
due process requires an evidentiary hearing prior to the deprivation of some type of
property interest even if such a hearing is provided thereafter. In only one case, Goldberg
v. Kelly, 397 U.S., at 266- 271, 90 S.Ct., at 1019-1022, 25 L.Ed.2d 287, has the Court
held that a hearing closely approximating a judicial trial is necessary. In other cases
requiring some type of pretermination hearing as a matter of constitutional right the Court
has spoken sparingly about the requisite procedures. *334 SniaDachv. Family Finance
Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), involving garnishment of
wages, was entirely silent on the matter. In Fuentes v. Shevin, 407 U.S., at 96-97, 92
S.Ct., at 2002-2003, 32 L.Ed.2d 556, the Court said only that in a replevin suit between
two private parties the initial determination required something more than an ex parte
proceeding before a court clerk. Similarly, Bell v. Burson, supra, at 540, 91 S.Ct., at
1590, 29 L.Ed.2d 90, held, in the context of the revocation of a state-granted driver’s
license, that due process required only that the prerevocation hearing involve a probable-
cause determination as to the fault of the licensee, noting that the hearing “need not take
the form of a full adjudication of the question of liability.” See also North Georgia
Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 42 L.Ed.2d 751
(1975). More recently, in Arnett v. Kennedy, supra, we sustained the validity of
procedures by which a federal employee could be dismissed for cause. They included
notice of the action sought, a copy of the charge, reasonable time for filing a written
response, and an opportunity for an oral appearance. Following dismissal, an evidentiary
hearing was provided. 416 U.S., at 142-146, 94 S.Ct., at 1638-1640.

These decisions underscore the truism that “ ‘(d)ue process,’ unlike some legal rules, is
not a technical conception with a fixed content unrelated to time, place and
circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748,
6 L.Ed.2d 1230 (1961). “(D)ue process is flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471,
481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Accordingly, resolution of the issue
whether the administrative procedures provided here are constitutionally sufficient
requires analysis of the governmental and private interests that are affected. Arnett v.
Kennedy, supra, 416 U.S., at 167-168, 94 S.Ct., at 1650-1651 (Powell, J., concurring in
part); Goldberg v. Kelly, supra, 397 U.S., at 263-266, 90 S.Ct., at 1018-1020; **903
Cafeteria Workers v. McElroy, supra, 367 U.S., at 895, 81 S.Ct., at 1748-1749. More
precisely, our prior decisions *335 indicate that identification of the specific dictates of
due process generally requires consideration of three distinct factors: First, the private
interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail. See, e.g., Goldberg v.
Kelly, supra, 397 U.S., at 263-271, 90 S.Ct., at 1018-1022.
We turn first to a description of the procedures for the termination of Social Security
disability benefits and thereafter consider the factors bearing upon the constitutional
adequacy of these procedures.
B
The disability insurance program is administered jointly by state and federal agencies.
State agencies make the initial determination whether a disability exists, when it began,
and when it ceased. 42 U.S.C. § 421(a). [FN13] The standards applied and the
procedures followed are prescribed by the Secretary, see s 421(b), who has delegated his
responsibilities and powers under the Act to the SSA. See 40 Fed.Reg. 4473 (1975).
FN13. In all but six States the state vocational rehabilitation agency charged with
administering the state plan under the Vocational Rehabilitation Act of 1920, 41 Stat.
735, as amended, 29 U.S.C. § 701 et seq. (1970 ed., Supp. III), acts as the “state
agency” for purposes of the disability insurance program. Staff of the House Comm. on
Ways and Means, Report on the Disability Insurance Program, 93d Cong., 2d Sess., 148
(1974). This assignment of responsibility was intended to encourage rehabilitation
contacts for disabled workers and to utilize the well-established relationships of the local
rehabilitation agencies with the medical profession. H.R.Rep.No.1698, 83d Cong., 2d
Sess., 23-24 (1954).

*336 In order to establish initial and continued entitlement to disability benefits a worker
must demonstrate that he is unable
“to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12
months . . . .” 42 U.S.C. § 423(d)(1)(A).
To satisfy this test the worker bears a continuing burden of showing, by means of
“medically acceptable clinical and laboratory diagnostic techniques,” s 423(d)(3), that he
has a physical or mental impairment of such severity that
“he is not only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.” s 423(d)(2)(A). [FN14]
FN14. Work which “exists in the national economy” is in turn defined as “work which
exists in significant numbers either in the region where such individual lives or in several
regions of the country.” s 423(d)(2)(A).

The principal reasons for benefits terminations are that the worker is no longer disabled
or has returned to work. As Eldridge’s benefits were terminated because he was
determined to be no longer disabled, we consider only the sufficiency of the procedures
involved in such cases. [FN15]
FN15. Because the continuing-disability investigation concerning whether a claimant has
returned to work is usually done directly by the SSA Bureau of Disability Insurance,
without any state agency involvement, the administrative procedures prior to the post-
termination evidentiary hearing differ from those involved in cases of possible medical
recovery. They are similar, however, in the important respect that the process relies
principally on written communications and there is no provision for an evidentiary
hearing prior to the cutoff of benefits. Due to the nature of the relevant inquiry in certain
types of cases, such as those involving self-employment and agricultural employment, the
SSA office nearest the beneficiary conducts an oral interview of the beneficiary as part of
the pretermination process. SSA Claims Manual (CM) s 6705.2(c).

*337 **904 The continuing-eligibility investigation is made by a state agency acting

through a “team” consisting of a physician and a nonmedical person trained in disability
evaluation. The agency periodically communicates with the disabled worker, usually by
mail in which case he is sent a detailed questionnaire or by telephone, and requests
information concerning his present condition, including current medical restrictions and
sources of treatment, and any additional information that he considers relevant to his
continued entitlement to benefits. CM s 6705.1; Disability Insurance State Manual
(DISM) s 353.3 (TL No. 137, Mar. 5, 1975). [FN16]
FN16. Information is also requested concerning the recipient’s belief as to whether he can
return to work, the nature and extent of his employment during the past year, and any
vocational services he is receiving.

Information regarding the recipient’s current condition is also obtained from his sources
of medical treatment. DISM s 353.4. If there is a conflict between the information
provided by the beneficiary and that obtained from medical sources such as his physician,
or between two sources of treatment, the agency may arrange for an examination by an
independent consulting physician. [FN17] Ibid. Whenever the agency’s tentative
assessment of the beneficiary’s condition differs from his *338 own assessment, the
beneficiary is informed that benefits may be terminated, provided a summary of the
evidence upon which the proposed determination to terminate is based, and afforded an
opportunity to review the medical reports and other evidence in his case file. [FN18] He
also may respond in writing and submit additional evidence. Id., s 353.6.
FN17. All medical-source evidence used to establish the absence of continuing disability
must be in writing, with the source properly identified. DISM s 353.4C.

FN18. The disability recipient is not permitted personally to examine the medical reports
contained in his file. This restriction is not significant since he is entitled to have any
representative of his choice, including a lay friend or family member, examine all
medical evidence. CM s 7314. See also 20 CFR s 401.3(a)(2) (1975). The Secretary
informs us that this curious limitation is currently under review.
The state agency then makes its final determination, which is reviewed by an examiner in
the SSA Bureau of Disability Insurance. 42 U.S.C. § 421(c); CM ss 6701(b), (c). [FN19]
If, as is usually the case, the SSA accepts the agency determination it notifies the
recipient in writing, informing him of the reasons for the decision, and of his right to seek
de novo reconsideration by the state agency. 20 CFR ss 404.907, 404.909 (1975).
[FN20] Upon acceptance by the SSA, benefits are terminated effective two months after
the month in which medical recovery is found to have occurred. 42 U.S.C. (Supp. III) s
423(a) (1970 ed., Supp. III).
FN19. The SSA may not itself revise the state agency’s determination in a manner more
favorable to the beneficiary. If, however, it believes that the worker is still disabled, or
that the disability lasted longer than determined by the state agency, it may return the file
to the agency for further consideration in light of the SSA’s views. The agency is free to
reaffirm its original assessment.

FN20. The reconsideration assessment is initially made by the state agency, but usually
not by the same persons who considered the case originally. R. Dixon, Social Security
Disability and Mass Justice 32 (1973). Both the recipient and the agency may adduce
new evidence.

*339 If the recipient seeks reconsideration by the state agency and the determination is
adverse, the SSA reviews the reconsideration determination and notifies the recipient of
the decision. He then has a right to an evidentiary hearing before an SSA administrative
law judge. 20 CFR ss 404.917, 404.927 (1975). The hearing is nonadversary, **905 and
the SSA is not represented by counsel. As at all prior and subsequent stages of the
administrative process, however, the claimant may be represented by counsel or other
spokesmen. s 404.934. If this hearing results in an adverse decision, the claimant is
entitled to request discretionary review by the SSA Appeals Council, s 404.945, and
finally may obtain judicial review. 42 U.S.C. § 405(g); 20 CFR s 404.951 (1975).
[FN21]
FN21. Unlike all prior levels of review, which are de novo, the district court is required
to treat findings of fact as conclusive if supported by substantial evidence. 42 U.S.C. §
405(g).

Should it be determined at any point after termination of benefits, that the claimant’s
disability extended beyond the date of cessation initially established, the worker is
entitled to retroactive payments. 42 U.S.C. § 404. Cf. s 423(b); 20 CFR ss 404.501,
404.503, 404.504 (1975). If, on the other hand, a beneficiary receives any payments to
which he is later determined not to be entitled, the statute authorizes the Secretary to
attempt to recoup these funds in specified circumstances. 42 U.S.C. § 404. [FN22]
FN22. The Secretary may reduce other payments to which the beneficiary is entitled, or
seek the payment of a refund, unless the beneficiary is “without fault” and such
adjustment or recovery would defeat the purposes of the Act or be “against equity and
good conscience.” 42 U.S.C. § 404(b). See generally 20 CFR ss 404.501-404.515
(1975).

[7] Despite the elaborate character of the administrative procedures provided by the
Secretary, the courts *340 below held them to be constitutionally inadequate, concluding
that due process requires an evidentiary hearing prior to termination. In light of the
private and governmental interests at stake here and the nature of the existing procedures,
we think this was error.
Since a recipient whose benefits are terminated is awarded full retroactive relief if he
ultimately prevails, his sole interest is in the uninterrupted receipt of this source of
income pending final administrative decision on his claim. His potential injury is thus
similar in nature to that of the welfare recipient in Goldberg, see 397 U.S., at 263-264, 90
S.Ct., at 1018-1019, the nonprobationary federal employee in Arnett, see 416 U.S., at
146, 94 S.Ct., at 1640, 1641, and the wage earner in Sniadach. See 395 U.S., at 341-342,
89 S.Ct., at 1822-1823. [FN23]
FN23. This, of course, assumes that an employee whose wages are garnisheed
erroneously is subsequently able to recover his back wages.

Only in Goldberg has the Court held that due process requires an evidentiary hearing
prior to a temporary deprivation. It was emphasized there that welfare assistance is given
to persons on the very margin of subsistence:
“The crucial factor in this context a factor not present in the case of . . . virtually anyone
else whose governmental entitlements are ended is that termination of aid pending
resolution of a controversy over eligibility may deprive an eligible recipient of the very
means by which to live while he waits.” 397 U.S., at 264, 90 S.Ct., at 1018 (emphasis in
original).
Eligibility for disability benefits, in contrast, is not based upon financial need. [FN24]
Indeed, it is wholly unrelated to *341 the worker’s income or support from many other
sources, such as earnings of other family members, workmen’s compensation awards,
[FN25] tort claims awards, savings, private **906 insurance, public or private pensions,
veterans’ benefits, food stamps, public assistance, or the “many other important
programs, both public and private, which contain provisions for disability payments
affecting a substantial portion of the work force . . . .” Richardson v. Belcher, 404 U.S.,
at 85-87, 92 S.Ct., at 259 (Douglas, J., dissenting). See Staff of the House Committee on
Ways and Means, Report on the Disability Insurance Program, 93d Cong., 2d Sess., 9-10,
419-429 (1974) (hereinafter Staff Report).
FN24. The level of benefits is determined by the worker’s average monthly earnings
during the period prior to disability, his age, and other
factors not directly related to financial need, specified in 42 U.S.C. § 415 (1970 ed.,
Supp. III). See s 423(a)(2).
FN25. Workmen’s compensation benefits are deducted in part in accordance with a
statutory formula. 42 U.S.C. § 424a (1970 ed., Supp. III); 20 CFR s 404.408 (1975); see
Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).

[8] As Goldberg illustrates, the degree of potential deprivation that may be created by
a particular decision is a factor to be considered in assessing the validity of any
administrative decisionmaking process. Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.
2593, 33 L.Ed.2d 484 (1972). The potential deprivation here is generally likely to be less
than in Goldberg, although the degree of difference can be overstated. As the District
Court emphasized, to remain eligible for benefits a recipient must be “unable to engage in
substantial gainful activity.” 42 U.S.C. § 423; 361 F.Supp., at 523. Thus, in contrast to
the discharged federal employee in Arnett, there is little possibility that the terminated
recipient will be able to find even temporary employment to ameliorate the interim loss.
As we recognized last Term in Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 540,
42 L.Ed.2d 521 (1975), “the possible length of wrongful deprivation of . . . benefits
(also) is an important factor in assessing the impact of official action on the private
interests.” The Secretary concedes that the delay between *342 a request for a hearing
before an administrative law judge and a decision on the claim is currently between 10
and 11 months. Since a terminated recipient must first obtain a reconsideration decision
as a prerequisite to invoking his right to an evidentiary hearing, the delay between the
actual cutoff of benefits and final decision after a hearing exceeds one year.
In view of the torpidity of this administrative review process, cf. id., at 383-384, 386, 95
S.Ct., at 536-537, 538, and the typically modest resources of the family unit of the
physically disabled worker, [FN26] the hardship imposed upon the erroneously
terminated disability recipient may be significant. Still, the disabled worker’s need is
likely to be less than that of a welfare recipient. In addition to the possibility of access to
private resources, other forms of government assistance will become available where the
termination of disability benefits places a worker or his family below the subsistence
level. [FN27] See *343 Arnett v. Kennedy, supra, 416 U.S., at 169, **907 94 S.Ct., at
1651-1652 (Powell, J., concurring in part); id., at 201-202, 94 S.Ct., at 1667-1668
(White, J., concurring in part and dissenting in part). In view of these potential sources of
temporary income, there is less reason here than in Goldberg to depart from the ordinary
principle, established by our decisions, that something less than an evidentiary hearing is
sufficient prior to adverse administrative action.
FN26. Amici cite statistics compiled by the Secretary which indicate that in 1965 the
mean income of the family unit of a disabled worker was $3,803, while the median
income for the unit was $2,836. The mean liquid assets i. e., cash, stocks, bonds of these
family units was $4,862; the median was $940. These statistics do not take into account
the family unit’s nonliquid assets i. e., automobile, real estate, and the like. Brief for
AFL-CIO et al. as Amici Curiae App. 4a. See n.29, infra.

FN27. Amici emphasize that because an identical definition of disability is employed in

both the Title II Social Security Program and in the companion welfare system for the
disabled, Supplemental Security Income (SSI), compare 42 U.S.C. § 423(d)(1) with s
1382c(a)(3) (1970 ed., Supp. III), the terminated disability-benefits recipient will be
ineligible for the SSI Program. There exist, however, state and local welfare programs
which may supplement the worker’s income. In addition, the worker’s household unit
can qualify for food stamps if it meets the financial need requirements. See 7 U.S.C. §s
2013(c), 2014(b); 7 CFR s 271 (1975). Finally, in 1974, 480,000 of the approximately
2,000,000
disabled workers receiving Social Security benefits also received SSI benefits. Since
financial need is a criterion for eligibility under the SSI program, those disabled workers
who are most in need will in the majority of cases be receiving SSI benefits when
disability insurance aid is terminated. And, under the SSI program, a pretermination
evidentiary hearing is provided, if requested. 42 U.S.C. § 1383(c) (1970 ed., Supp. III);
20 CFR s 416.1336(c) (1975); 40 Fed.Reg. 1512 (1975); see Staff Report 346.

D
An additional factor to be considered here is the fairness and reliability of the existing
pretermination procedures, and the probable value, if any, of additional procedural
safeguards. Central to the evaluation of any administrative process is the nature of the
relevant inquiry. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 617, 94 S.Ct. 1895,
1905, 40 L.Ed.2d 406 (1974); Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267,
1281 (1975). In order to remain eligible for benefits the disabled worker must
demonstrate by means of “medically acceptable clinical and laboratory diagnostic
techniques,” 42 U.S.C. § 423(d)(3), that he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment . . . .”
s 423(d)(1)(A) (emphasis supplied). In short, a medical assessment of the worker’s
physical or mental condition is required. This is a more sharply focused and easily
documented decision than the typical determination of welfare entitlement. In the latter
case, a wide variety of information may be deemed relevant, and issues of witness
credibility and *344 veracity often are critical to the decisionmaking process. Goldberg
noted that in such circumstances “written submissions are a wholly unsatisfactory basis
for decision.” 397 U.S., at 269, 90 S.Ct., at 1021.

[9] By contrast, the decision whether to discontinue disability benefits will turn, in
most cases, upon “routine, standard, and unbiased medical reports by physician
specialists,” Richardson v. Perales, 402 U.S., at 404, 91 S.Ct., at 1428, concerning a
subject whom they have personally examined. [FN28] In Richardson the Court
recognized the “reliability and probative worth of written medical reports,” emphasizing
that while there may be “professional disagreement with the medical conclusions” the
“specter of questionable credibility and veracity is not present.” Id., at 405, 407, 91
S.Ct., at 1428, 1430. To be sure, credibility and veracity may be a factor in the ultimate
disability assessment in some cases. But procedural due process rules are shaped by the
risk of error inherent in the truthfinding process as applied to the generality of cases, not
the rare exceptions. The potential value of an evidentiary hearing, or even oral
presentation to the decisionmaker, *345 is substantially less in this context than in
Goldberg.
FN28. The decision is not purely a question of the accuracy of a medical diagnosis since
the ultimate issue which the state agency must resolve is whether in light of the particular
worker’s “age, education, and work experience” he cannot “engage in any . . .
substantial gainful work which exists in the national economy . . . .” 42 U.S.C. §
423(d)(2)(A). Yet information concerning each of these worker characteristics is
amenable to effective written presentation. The value of an evidentiary hearing, or even a
limited oral presentation, to an accurate presentation of those factors to the decisionmaker
does not appear substantial. Similarly, resolution of the inquiry as to the types of
employment opportunities that exist in the national economy for a physically impaired
worker with a particular set of skills would not necessarily be advanced by an evidentiary
hearing. Cf. K. Davis, Administrative Law Treatise s 7.06, at 429 (1958). The
statistical information relevant to this judgment is more amenable to written than to oral
presentation.

The decision in Goldberg also was based on the Court’s conclusion that written
submissions were an inadequate substitute for oral presentation because they did not
provide an effective means for the recipient to communicate his case to the
decisionmaker. Written submissions were viewed as an unrealistic option, for most
recipients lacked the “educational attainment necessary to **908 write effectively” and
could not afford professional assistance. In addition, such submissions would not provide
the “flexibility of oral presentations” or “permit the recipient to mold his argument to the
issues the decision maker appears to regard as important.” 397 U.S., at 269, 90 S.Ct., at
1021. In the context of the disability-benefits-entitlement assessment the administrative
procedures under review here fully answer these objections.
The detailed questionnaire which the state agency periodically sends the recipient
identifies with particularity the information relevant to the entitlement decision, and the
recipient is invited to obtain assistance from the local SSA office in completing the
questionnaire. More important, the information critical to the entitlement decision
usually is derived from medical sources, such as the treating physician. Such sources are
likely to be able to communicate more effectively through written documents than are
welfare recipients or the lay witnesses supporting their cause. The conclusions of
physicians often are supported by X-rays and the results of clinical or laboratory tests,
information typically more amenable to written than to oral presentation. Cf. W.
Gellhorn & C. Byse, Administrative Law Cases and Comments 860-863 (6th ed. 1974).
A further safeguard against mistake is the policy of allowing the disability recipient’s
representative full access *346 to all information relied upon by the state agency. In
addition, prior to the cutoff of benefits the agency informs the recipient of its tentative
assessment, the reasons therefor, and provides a summary of the evidence that it
considers most relevant. Opportunity is then afforded the recipient to submit additional
evidence or arguments, enabling him to challenge directly the accuracy of information in
his file as well as the correctness of the agency’s tentative conclusions. These
procedures, again as contrasted with those before the Court in Goldberg, enable the
recipient to “mold” his argument to respond to the precise issues which the
decisionmaker regards as crucial.
Despite these carefully structured procedures, amici point to the significant reversal rate
for appealed cases as clear evidence that the current process is inadequate. Depending
upon the base selected and the line of analysis followed, the relevant reversal rates urged
by the contending parties vary from a high of 58.6% For appealed reconsideration
decisions to an overall reversal rate of only 3.3%. [FN29] Bare statistics rarely provide a
satisfactory measure of the fairness of a decisionmaking process. Their adequacy is
especially suspect here since *347 the administrative review system is operated on an
open-file basis. A recipient may always submit new evidence, and such submissions may
result in additional medical examinations. Such fresh examinations were held in
approximately 30% To 40% Of the appealed cases, in fiscal 1973, either at the
reconsideration or evidentiary hearing stage of the administrative process. Staff Report
238. In this context, the value of reversal rate statistics as one means of evaluating the
adequacy of the pretermination process is diminished. Thus, although we view such
information as relevant, it is certainly not controlling in this case.
FN29. By focusing solely on the reversal rate for appealed reconsideration determinations
amici overstate the relevant reversal rate. As we indicated last Term in Fusari v.
Steinberg, 419 U.S. 379, 383 n. 6, 95 S.Ct. 533, 536-537, 42 L.Ed.2d 521 (1975), in
order fully to assess the reliability and fairness of a system of procedure, one must also
consider the overall rate of error for all denials of benefits. Here that overall rate is
12.2%. Moreover, about 75% Of these reversals occur at the reconsideration stage of the
administrative process. Since the median period between a request for reconsideration
review and decision is only two months, Brief for AFL-CIO et al. as Amici Curiae App.
4a, the deprivation is significantly less than that concomitant to the lengthier delay before
an evidentiary hearing. Netting out these reconsideration reversals, the overall reversal
rate falls to 3.3%. See Supplemental and Reply Brief for Petitioner 14.

**909 E
In striking the appropriate due process balance the final factor to be assessed is the public
interest. This includes the administrative burden and other societal costs that would be
associated with requiring, as a matter of constitutional right, an evidentiary hearing upon
demand in all cases prior to the termination of disability benefits. The most visible
burden would be the incremental cost resulting from the increased number of hearings
and the expense of providing benefits to ineligible recipients pending decision. No one
can predict the extent of the increase, but the fact that full benefits would continue until
after such hearings would assure the exhaustion in most cases of this attractive option.
Nor would the theoretical right of the Secretary to recover undeserved benefits result, as a
practical matter, in any substantial offset to the added outlay of public funds. The parties
submit widely varying estimates of the probable additional financial cost. We only need
say that experience with the constitutionalizing of government procedures suggests that
the ultimate additional cost in terms of money and administrative burden would not be
insubstantial.

[10] *348 Financial cost alone is not a controlling weight in determining whether due
process requires a particular procedural safeguard prior to some administrative decision.
But the Government’s interest, and hence that of the public, in conserving scarce fiscal
and administrative resources is a factor that must be weighed. At some point the benefit
of an additional safeguard to the individual affected by the administrative action and to
society in terms of increased assurance that the action is just, may be outweighed by the
cost. Significantly, the cost of protecting those whom the preliminary administrative
process has identified as likely to be found undeserving may in the end come out of the
pockets of the deserving since resources available for any particular program of social
welfare are not unlimited. See Friendly, supra, 123 U.Pa.L.Rev., at 1276, 1303.

[11] But more is implicated in cases of this type than ad hoc weighing of fiscal and
administrative burdens against the interests of a particular category of claimants. The
ultimate balance involves a determination as to when, under our constitutional system,
judicial-type procedures must be imposed upon administrative action to assure fairness.
We reiterate the wise admonishment of Mr. Justice Frankfurter that differences in the
origin and function of administrative agencies “preclude wholesale transplantation of the
rules of procedure, trial and review which have evolved from the history and experience
of courts.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84
L.Ed. 656 (1940). The judicial model of an evidentiary hearing is neither a required, nor
even the most effective, method of decisionmaking in all circumstances. The essence of
due process is the requirement that “a person in jeopardy of serious loss (be given) notice
of the case against him and opportunity to meet it.” *349 Joint Anti-Fascist Comm. v.
McGrath, 341 U.S., at 171-172, 71 S.Ct., at 649. (Frankfurter, J., concurring). All that is
necessary is that the procedures be tailored, in light of the decision to be made, to “the
capacities and circumstances of those who are to be heard,” Goldberg v. Kelly, 397 U.S.,
at 268-269, 90 S.Ct., at 1021 (footnote omitted), to insure that they are given a
meaningful opportunity to present their case. In assessing what process is due in this
case, substantial weight must be given to the good-faith judgments of the individuals
charged by Congress with the administration of social welfare programs that the
procedures they have provided assure fair consideration of the entitlement claims of
individuals. See Arnett v. Kennedy, 416 U.S., at 202, 94 S.Ct., at 1667-1668 (White, J.,
concurring in part and dissenting in part). This is especially so where, as here, the
prescribed procedures not only provide the claimant with an effective process for **910
asserting his claim prior to any administrative action, but also assure a right to an
evidentiary hearing, as well as to subsequent judicial review, before the denial of his
claim becomes final. Cf. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786,
28 L.Ed.2d 113 (1971).
We conclude that an evidentiary hearing is not required prior to the termination of
disability benefits and that the present administrative procedures fully comport with due
process.
The judgment of the Court of Appeals is
Reversed.

Mr. Justice STEVENS took no part in the consideration or decision of this case.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.

For the reasons stated in my dissenting opinion in Richardson v. Wright, 405 U.S. 208,
212, 92 S.Ct. 788, 791, 31 L.Ed.2d 151 (1972), I agree with the District Court and the
Court of Appeals that, prior to termination of benefits, Eldridge must be afforded *350 an
evidentiary hearing of the type required for welfare beneficiaries under Title IV of the
Social Security Act, 42 U.S.C. § 601 et seq. See Goldberg v. Kelly, 397 U.S. 254, 90
S.Ct. 1011, 25 L.Ed.2d 287 (1970). I would add that the Court’s consideration that a
discontinuance of disability benefits may cause the recipient to suffer only a limited
deprivation is no argument. It is speculative. Moreover, the very legislative
determination to provide disability benefits, without any prerequisite determination of
need in fact, presumes a need by the recipient which is not this Court’s function to
denigrate. Indeed, in the present case, it is indicated that because disability benefits were
terminated there was a foreclosure upon the Eldridge home and the family’s furniture was
repossessed, forcing Eldridge, his wife, and their children to sleep in one bed…. Finally,
it is also no argument that a worker, who has been placed in the untenable position of
having been denied disability benefits, may still seek other forms of public assistance....

LASSITER
Lassiter v. Department of Social Services of Durham County

Justice STEWART delivered the opinion of the Court.

I

[P] In the late spring of 1975, after hearing evidence that the petitioner, Abby Gail
Lassiter, had not provided her infant son William with proper medical care, the District
Court of Durham County, N.C., adjudicated him a neglected child and transferred him to
the custody of the Durham County Department of Social Services, the respondent here.
A year later, Ms. Lassiter was charged with first-degree murder, was convicted of
second-degree murder, and began a sentence of 25 to 40 years of imprisonment. [FN1] In
1978 the Department *21 petitioned the court to terminate Ms. Lassiter’s parental rights
because, the Department alleged, she “has not had any contact with the child since
December of 1975” and “has willfully left the child in foster care for more than two
consecutive years without showing that substantial progress has been made in correcting
the conditions which led to the removal of the child, or without showing a positive
response to the diligent efforts of the Department of Social Services to **2157 strengthen
her relationship to the child, or to make and follow through with constructive planning
for the future of the child.”

FN1. The North Carolina Court of Appeals, in reviewing the petitioner’s conviction,
indicated that the murder occurred during an altercation between Ms. Lassiter, her
mother, and the deceased:

Defendant’s mother told [the deceased] to ‘come on.’ They began to struggle and
deceased fell or was knocked to the floor. Defendant’s mother was beating
deceased with a broom. While deceased was still on the floor and being beaten
with the broom, defendant entered the apartment. She went into the kitchen and
got a butcher knife. She took the knife and began stabbing the deceased who was
still prostrate. The body of deceased had seven stab wounds....
State v. Lassiter, No. 7614SC1054 (June 1, 1977).
After her conviction was affirmed on appeal, Ms. Lassiter sought to attack it collaterally.
Among her arguments was that the assistance of her trial counsel had been ineffective
because he had failed to “seek to elicit or introduce before the jury the statement made by
[Ms. Lassiter’s mother,] ‘And I did it, I hope she dies.’ “ Ms. Lassiter’s mother had, like
Ms. Lassiter, been indicted on a first-degree murder charge; however, the trial court
granted the elder Ms. Lassiter’s motion for a nonsuit. The North Carolina General Court
of Justice, Superior Court Division, denied Ms. Lassiter’s motion for collateral relief….

Ms. Lassiter was served with the petition and with notice that a hearing on it would be
held. Although her mother had retained counsel for her in connection with an effort to
invalidate the murder conviction, Ms. Lassiter never mentioned the forthcoming hearing
to him (or, for that matter, to any other person except, she said, to “someone” in the
prison). At the behest of the Department of Social Services’ attorney, she was brought
from prison to the hearing, which was held August 31, 1978. The hearing opened,
apparently at the judge’s insistence, with a discussion of whether Ms. Lassiter should
have more time in which to find legal assistance. *22 Since the court concluded that she
“has had ample opportunity to seek and obtain counsel prior to the hearing of this matter,
and [that] her failure to do so is without just cause,” the court did not postpone the
proceedings. Ms. Lassiter did not aver that she was indigent, and the court did not
appoint counsel for her.
A social worker from the respondent Department was the first witness. She testified that
in 1975 the Department “received a complaint from Duke Pediatrics that William had not
been followed in the pediatric clinic for medical problems and that they were having
difficulty in locating Ms. Lassiter....” She said that in May 1975 a social worker had
taken William to the hospital, where doctors asked that he stay “because of breathing
difficulties [and] malnutrition and [because] there was a great deal of scarring that
indicated that he had a severe infection that had gone untreated.” The witness further
testified that, except for one “prearranged” visit and a chance meeting on the street, Ms.
Lassiter had not seen William after he had come into the State’s custody, and that neither
Ms. Lassiter nor her mother had “made any contact with the Department of Social
Services regarding that child.” When asked whether William should be placed in his
grandmother’s custody, the social worker said he should not, since the grandmother “has
indicated to me on a number of occasions that she was not able to take responsibility for
the child” and since “I have checked with people in the community and from Ms.
Lassiter’s church who also feel that this additional responsibility would be more than she
can handle.” The social worker added that William “has not seen his grandmother since
the chance meeting in July of ‘76 and that was the only time.”
After the direct examination of the social worker, the judge said:

I notice we made extensive findings in June of ‘75 that you were served with
papers and called the social *23 services and told them you weren’t coming; and
the serious lack of medical treatment. And, as I have said in my findings of the
16th day of June ‘75, the Court finds that the grandmother, Ms. Lucille Lassiter,
mother of Abby Gail Lassiter, filed a complaint on the 8th day of May, 1975,
 alleging that the daughter often left the children, Candina, Felicia and William L.
with her for days without providing money or food while she was gone.

Ms. Lassiter conducted a cross-examination of the social worker, who firmly reiterated
her earlier testimony. The judge explained several times, with varying degrees of clarity,
that Ms. Lassiter should only ask questions at this stage; many of her questions were
disallowed because they were not really questions, but arguments.
Ms. Lassiter herself then testified, under the judge’s questioning, that she had properly
cared for William. Under cross-examination, she said that she had seen William more
than five or six times after he had been taken from her custody and that, if William could
not be with her, she wanted him to be with her mother since “He knows us. Children
know they family.... They know they people, they know they family and that child
knows us anywhere.... I got four more other children. Three girls and a boy and they
know they little brother when they see him.”
**2158 Ms. Lassiter’s mother was then called as a witness. She denied, under the
questioning of the judge, that she had filed the complaint against Ms. Lassiter, and on
cross-examination she denied both having failed to visit William when he was in the
State’s custody and having said that she could not care for him.
The court found that Ms. Lassiter “has not contacted the Department of Social Services
about her child since December, 1975, has not expressed any concern for his care and
welfare, and has made no efforts to plan for his future.” Because *24 Ms. Lassiter thus
had “willfully failed to maintain concern or responsibility for the welfare of the minor,”
and because it was “in the best interests of the minor,” the court terminated Ms. Lassiter’s
status as William’s parent. [FN2]
FN2. The petition had also asked that the parental rights of the putative father, William
Boykin, be terminated. Boykin was not married to Ms. Lassiter, he had never contributed
to William’s financial support, and indeed he denied that he was William’s father. The
court granted the petition to terminate his alleged parental status.

On appeal, Ms. Lassiter argued only that, because she was indigent, the Due Process
Clause of the Fourteenth Amendment entitled her to the assistance of counsel, and that
the trial court had therefore erred in not requiring the State to provide counsel for her.
The North Carolina Court of Appeals decided that “[w]hile this State action does invade a
protected area of individual privacy, the invasion is not so serious or unreasonable as to
compel us to hold that appointment of counsel for indigent parents is constitutionally
mandated.” In re Lassiter, 43 N.C.App. 525, 527, 259 S.E.2d 336, 337. The Supreme
Court of North Carolina summarily denied Ms. Lassiter’s application for discretionary
review, 299 N.C. 120, 262 S.E.2d 6, and we granted certiorari to consider the petitioner’s
claim under the Due Process Clause of the Fourteenth Amendment, 449 U.S. 819, 101
S.Ct. 70, 66 L.Ed.2d 21.
II

[1] [2] [3] For all its consequence, “due process” has never been, and perhaps
can never be, precisely defined. “[U]nlike some legal rules,” this Court has said, due
process “is not a technical conception with a fixed content unrelated to time, place and
circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748,
6 L.Ed.2d 1230. Rather, the phrase expresses the requirement of “fundamental fairness,”
a requirement whose meaning can be as opaque as its importance is lofty. Applying the
Due Process Clause is therefore an uncertain enterprise which *25 must discover what
“fundamental fairness” consists of in a particular situation by first considering any
relevant precedents and then by assessing the several interests that are at stake.
A

[4] 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. Thus, when the
Court overruled the principle of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed.
1595, that counsel in criminal trials need be appointed only where the circumstances in a
given case demand it, the Court did so in the case of a man sentenced to prison for five
years. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. And thus
Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, established that
counsel must be provided before any indigent may be sentenced to prison, even where the
crime is petty and the prison term brief.
That it is the defendant’s interest in personal freedom, and not simply the special Sixth
and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to
appointed counsel is demonstrated by the Court’s announcement in In re Gault, 387 U.S.
1, 87 S.Ct. 1428, 18 L.Ed.2d 527, that “the Due Process Clause of the Fourteenth **2159
Amendment requires that in respect of proceedings to determine delinquency which may
result in commitment to an institution in which the juvenile’s freedom is curtailed,” the
juvenile has a right to appointed counsel even though proceedings may be styled “civil”
and not “criminal.” Id., at 41, 87 S.Ct., at 1451 (emphasis added). Similarly, four of the
five Justices who reached the merits in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63
L.Ed.2d 552, concluded that an indigent prisoner is entitled to appointed counsel before
being involuntarily transferred for treatment to a state mental hospital. The fifth Justice
differed from the other four only in declining to exclude the “possibility that the required
assistance *26 may be rendered by competent laymen in some cases.” Id., at 500, 100
S.Ct., at 1267 (separate opinion of POWELL, J.).

[5] Significantly, as a litigant’s interest in personal liberty diminishes, so does his

right to appointed counsel. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656, the Court gauged the due process rights of a previously sentenced
probationer at a probation-revocation hearing. In Morrissey v. Brewer, 408 U.S. 471,
480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484, which involved an analogous hearing to
revoke parole, the Court had said: “Revocation deprives an individual, not of the absolute
liberty to which every citizen is entitled, but only of the conditional liberty properly
dependent on observance of special parole restrictions.” Relying on that discussion, the
Court in Scarpelli declined to hold that indigent probationers have, per se, a right to
counsel at revocation hearings, and instead left the decision whether counsel should be
appointed to be made on a case-by-case basis.
Finally, the Court has refused to extend the right to appointed counsel to include
prosecutions which, though criminal, do not result in the defendant’s loss of personal
liberty. The Court in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, for
instance, interpreted the “central premise of Argersinger” to be “that actual imprisonment
is a penalty different in kind from fines or the mere threat of imprisonment,” and the
Court endorsed that premise as “eminently sound and warrant[ing] adoption of actual
imprisonment as the line defining the constitutional right to appointment of counsel.” Id.,
440 U.S., at 373, 99 S.Ct., at 1162. The Court thus held “that the Sixth and Fourteenth
Amendments to the United States Constitution require only that no indigent criminal
defendant be sentenced to a term of imprisonment unless the State has afforded him the
right to assistance of appointed counsel in his defense.” Id., at 373-374, 99 S.Ct., at
1162.

[6] In sum, the Court’s precedents speak with one voice about what “fundamental
fairness” has meant when the Court has considered the right to appointed counsel, and we
thus draw from them the presumption that an indigent litigant has a *27 right to
appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is
against this presumption that all the other elements in the due process decision must be
measured.
B
The case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18,
propounds three elements to be evaluated in deciding what due process requires, viz., the
private interests at stake, the government’s interest, and the risk that the procedures used
will lead to erroneous decisions. We must balance these elements against each other, and
then set their net weight in the scales against the presumption that there is a right to
appointed counsel only where the indigent, if he is unsuccessful, may lose his personal
freedom.

[7] This Court’s decisions have by now made plain beyond the need for multiple
citation that a parent’s desire for and right to “the companionship, care, custody and
management of his or her children” is an important interest that “undeniably warrants
deference and, absent a powerful **2160 countervailing interest, protection.” Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 551. Here the State has
sought not simply to infringe upon that interest but to end it. If the State prevails, it will
have worked a unique kind of deprivation. Cf. May v. Anderson, 345 U.S. 528, 533, 73
S.Ct. 840, 843, 97 L.Ed. 1221; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14
L.Ed.2d 62. A parent’s interest in the accuracy and injustice of the decision to terminate
his or her parental status is, therefore a commanding one. [FN3]
FN3. Some parents will have an additional interest to protect. Petitions to terminate
parental rights are not uncommonly based on alleged criminal activity. Parents so
accused may need legal counsel to guide them in understanding the problems such
petitions may create.

Since the State has an urgent interest in the welfare of the child, it shares the parent’s
interest in an accurate and just decision. For this reason, the State may share the indigent
parent’s interest in the availability of appointed counsel. *28 If, as our adversary system
presupposes, accurate and just results are most likely to be obtained through the equal
contest of opposed interests, the State’s interest in the child’s welfare may perhaps best
be served by a hearing in which both the parent and the State acting for the child are
represented by counsel, without whom the contest of interests may become
unwholesomely unequal. North Carolina itself acknowledges as much by providing that
where a parent files a written answer to a termination petition, the State must supply a
lawyer to represent the child. N.C. Gen.Stat. § 7A-289.29 (Supp.1979).
The State’s interests, however, clearly diverge from the parent’s insofar as the State
wishes the termination decision to be made as economically as possible and thus wants to
avoid both the expense of appointed counsel and the cost of the lengthened proceedings
his presence may cause. But though the State’s pecuniary interest is legitimate, it is
hardly significant enough to overcome private interests as important as those here,
particularly in light of the concession in the respondent’s brief that the “potential costs of
appointed counsel in termination proceedings ... is [sic] admittedly de minimis compared
to the costs in all criminal actions.”
Finally, consideration must be given to the risk that a parent will be erroneously deprived
of his or her child because the parent is not represented by counsel. North Carolina law
now seeks to assure accurate decisions by establishing the following procedures: A
petition to terminate parental rights may be filed only by a parent seeking the termination
of the other parent’s rights, by a county department of social services or licensed child-
placing agency with custody of the child, or by a person with whom the child has lived
continuously for the two years preceding the petition. § 7A-289.24. A petition must
describe facts sufficient to warrant a finding that one of the grounds for termination
exists, § 7A-289.25(6), and the parent must be notified of the petition and given 30 days
in which to file a written answer to it, *29 § 7A-289.27. If that answer denies a material
allegation, the court must, as has been noted, appoint a lawyer as the child’s guardian ad
litem and must conduct a special hearing to resolve the issues raised by the petition and
the answer. § 7A-289.29. If the parent files no answer, “the court shall issue an order
terminating all parental and custodial rights ...; provided the court shall order a hearing on
the petition and may examine the petitioner or others on the facts alleged in the petition.”
§ 7A-289.28. Findings of fact are made by a court sitting without a jury and must “be
based on clear, cogent, and convincing evidence.” § 7A-289.30. Any party may appeal
who gives notice of appeal within 10 days after the hearing. § 7A-289.34. [FN4]
FN4. The respondent also points out that parental termination hearings commonly occur
only after a custody proceeding in which the child has judicially been found to be abused,
neglected, or dependent, and that an indigent parent has a right to be represented by
appointed counsel at the custody hearing. § 7A-587.

Ms. Lassiter’s hearing occurred before some of these provisions were enacted. She did
not, for instance, have the benefit of the “clear, cogent, and convincing” evidentiary
standard, nor did she have counsel at the hearing in which William was taken from her
custody.

**2161 The respondent argues that the subject of a termination hearing--the parent’s
relationship with her child--far from being abstruse, technical, or unfamiliar, is one as to
which the parent must be uniquely well informed and to which the parent must have
given prolonged thought. The respondent also contends that a termination hearing is not
likely to produce difficult points of evidentiary law, or even of substantive law, since the
evidentiary problems peculiar to criminal trials are not present and since the standards for
termination are not complicated. In fact, the respondent reports, the North Carolina
Departments of Social Services are themselves sometimes represented at termination
hearings by social workers instead of by lawyers. [FN5]
FN5. Both the respondent and the Columbia Journal of Law and Social Problems, 4
Colum.J.L. & Soc.Prob. 230 (1968), have conducted surveys purporting to reveal
whether the presence of counsel reduces the number of erroneous determinations in
parental termination proceedings. Unfortunately, neither survey goes beyond presenting
statistics which, standing alone, are unilluminating. The Journal note does, however,
report that it questioned the New York Family Court judges who preside over parental
termination hearings and found that 72.2% of them agreed that when a parent is
unrepresented, it becomes more difficult to conduct a fair hearing (11.1% of the judges
disagreed); 66.7% thought it became difficult to develop the facts (22.2% disagreed).

*30 Yet the ultimate issues with which a termination hearing deals are not always simple,
however commonplace they may be. Expert medical and psychiatric testimony, which
few parents are equipped to understand and fewer still to confute, is sometimes presented.
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. That these factors may combine to overwhelm an uncounseled
parent is evident from the findings some courts have made. See, e. g. Davis v. Page,
442 F.Supp. 258, 261 (SD Fla.1977); State v. Jamison, 251 Or. 114, 117-118, 444 P.2d
15, 17 (1968). Thus, courts have generally held that the State must appoint counsel for
indigent parents at termination proceedings. State ex rel. Heller v. Miller, 61 Ohio St.2d
6, 399 N.E.2d 66 (1980); Department of Public Welfare v. J. K. B., 379 Mass. 1, 393
N.E.2d 406 (1979); In re Chad S., 580 P.2d 983 (Okl.1978); In re Myricks, 85 Wash.2d
252, 533 P.2d 841 (1975); Crist v. Division of Youth and Family Services, 128 N.J.Super.
402, 320 A.2d 203 (1974); Danforth v. Maine Dept. of Health and Welfare, 303 A.2d
794 (Me.1973); In re Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973). [FN6] The
respondent is able to point to no presently authoritative case, except for the North
Carolina *31 judgment now before us, holding that an indigent parent has no due process
right to appointed counsel in termination proceedings.
FN6. A number of courts have held that indigent parents have a right to appointed
counsel in child dependency or neglect hearings as well. E. g., Davis v. Page, 640 F.2d
599 (CA5 1981) (en banc); Cleaver v. Wilcox, 499 F.2d 940 (CA9 1974) (right to be
decided case by case); Smith v. Edmiston, 431 F.Supp. 941 (WD Tenn.1977).

[8] [9] [10] The dispositive question, which must now be addressed, is
whether the three Eldridge factors, when weighed against the presumption that there is no
right to appointed counsel in the absence of at least a potential deprivation of physical
liberty, suffice to rebut that presumption and thus to lead to the conclusion that the Due
Process Clause requires the appointment of counsel when a State seeks to terminate an
indigent’s parental status. To summarize the above discussion of the Eldridge factors:
the parent’s interest is an extremely important one (and may be supplemented by the
dangers of criminal liability inherent in some termination proceedings); the State shares
with the parent an **2162 interest in a correct decision, has a relatively weak pecuniary
interest, and, in some but not all cases, has a possibly stronger interest in informal
procedures; and the complexity of the proceeding and the incapacity of the uncounseled
parent could be, but would not always be, great enough to make the risk of an erroneous
deprivation of the parent’s rights insupportably high.

If, in a given case, the parent’s interests were at their strongest, the State’s interests were
at their weakest, and the risks of error were at their peak, it could not be said that the
Eldridge factors did not overcome the presumption against the right to appointed counsel,
and that due process did not therefore require the appointment of counsel. But since the
Eldridge factors will not always be so distributed, and since “due process is not so rigid
as to require that the significant interests in informality, flexibility and economy must
always be sacrificed,” Gagnon v. Scarpelli, 411 U.S., at 788, 93 S.Ct., at 1762, neither
can we say that the Constitution requires the appointment of counsel in every parental
termination proceeding. We therefore adopt the standard found appropriate in Gagnon v.
Scarpelli, *32 and leave the decision whether due process calls for the appointment of
counsel for indigent parents in termination proceedings to be answered in the first
instance by the trial court, subject, of course, to appellate review. See, e. g., Wood v.
Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220.
III
Here, as in Scarpelli, “[i]t is neither possible nor prudent to attempt to formulate a precise
and detailed set of guidelines to be followed in determining when the providing of
counsel is necessary to meet the applicable due process requirements,” since here, as in
that case, “[t]he facts and circumstances ... are susceptible of almost infinite variation....”
411 U.S., at 790, 93 S.Ct., at 1764. Nevertheless, because child-custody litigation must be
concluded as rapidly as is consistent with fairness, [FN7] we decide today whether the
trial judge denied Ms. Lassiter due process of law when he did not appoint counsel for
her.
FN7. According to the respondent’s brief, William Lassiter is now living “in a pre-
adoptive home with foster parents committed to formal adoption to become his legal
parents.” He cannot be legally adopted, nor can his status otherwise be finally clarified,
until this litigation ends.

[13] The respondent represents that the petition to terminate Ms. Lassiter’s parental
rights contained no allegations of neglect or abuse upon which criminal charges could be
based, and hence Ms. Lassiter could not well have argued that she required counsel for
that reason. The Department of Social Services was represented at the hearing by
counsel, but no expert witnesses testified and the case presented no specially troublesome
points of law, either procedural or substantive. While hearsay evidence was no doubt
admitted, and while Ms. Lassiter no doubt left incomplete her defense that the
Department had not adequately assisted her in rekindling her interest in her son, the
weight of the evidence that she had few sparks of such interest was sufficiently great that
the *33 presence of counsel for Ms. Lassiter could not have made a determinative
difference. True, a lawyer might have done more with the argument that William should
live with Ms. Lassiter’s mother--but that argument was quite explicitly made by both
Lassiters, and the evidence that the elder Ms. Lassiter had said she could not handle
another child, that the social worker’s investigation had led to a similar conclusion, and
that the grandmother had displayed scant interest in the child once he had been removed
from her daughter’s custody was, though controverted, sufficiently substantial that the
absence of counsel’s guidance on this point did not render the proceedings fundamentally
unfair. [FN8] Finally, **2163 a court deciding whether due process requires the
appointment of counsel need not ignore a parent’s plain demonstration that she is not
interested in attending a hearing. Here, the trial court had previously found that Ms.
Lassiter had expressly declined to appear at the 1975 child custody hearing, Ms. Lassiter
had not even bothered to speak to her retained lawyer after being notified of the
termination hearing, and the court specifically found that Ms. Lassiter’s failure to make
an effort to contest the termination proceeding was without cause. In view of all these
circumstances, we hold that the trial court did not err in failing to appoint counsel for Ms.
Lassiter.
FN8. Ms. Lassiter’s argument here that her mother should have been given custody of
William is hardly consistent with her argument in the collateral attack on her murder
conviction that she was innocent because her mother was guilty. See n.1, supra.

IV

[14] [15] In its Fourteenth Amendment, our Constitution imposes on the States
the standards necessary to ensure that judicial proceedings are fundamentally fair. A
wise public policy, however, may require that higher standards be adopted than those
minimally tolerable under the Constitution. Informed opinion has clearly come to hold
that an indigent parent is *34 entitled to the assistance of appointed counsel not only in
parental termination proceedings, but also in dependency and neglect proceedings as
well. IJA-ABA Standards for Juvenile Justice, Counsel for Private Parties 2.3(b) (1980);
Uniform Juvenile Court Act § 26(a), 9A U.L.A. 35 (1979); National Council on Crime
and Delinquency, Model Rules for Juvenile Courts, Rule 39 (1969); U.S. Dept. of HEW,
Children’s Bureau, Legislative Guide for Drafting Family and Juvenile Court Acts §
25(b) (1969); U.S. Dept. of HEW, Children’s Bureau, Legislative Guides for the
Termination of Parental Rights and Responsibilities and the Adoption of Children, Pt. II,
§ 8 (1961); National Council on Crime and Delinquency, Standard Juvenile Court Act §
19 (1959). Most significantly, 33 States and the District of Columbia provide statutorily
for the appointment of counsel in termination cases. The Court’s opinion today in no
way implies that the standards increasingly urged by informed public opinion and now
widely followed by the States are other than enlightened and wise.
For the reasons stated in this opinion, the judgment is affirmed.
It is so ordered.
Chief Justice BURGER, concurring.
I join the Court’s opinion and add only a few words to emphasize a factor I believe is
misconceived by the dissenters. The purpose of the termination proceeding at issue here
was not “punitive.” Post, at 2170. On the contrary, its purpose was protective of the
child’s best interests. Given the record in this case, which involves the parental rights of
a mother under lengthy sentence for murder who showed little interest in her son, the writ
might well have been a “candidate” for dismissal as improvidently granted. See ante, at
2162-2163. However, I am content to join the narrow holding of the Court, leaving the
appointment of counsel in termination *35 proceedings to be determined by the state
courts on a case-by-case basis.

Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join,
dissenting.
The Court today denies an indigent mother the representation of counsel in a judicial
proceeding initiated by the State of North Carolina to terminate her parental rights with
respect to her youngest child. The Court most appropriately recognizes that the mother’s
interest is a “commanding one,” ante, at 2160, and it finds no countervailing state interest
of even remotely comparable significance, see ante, at 2159-2160, 2161-2162.
Nonetheless, the Court avoids what seems to me the obvious conclusion that due process
requires the presence of counsel for a parent threatened with judicial termination of
parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20
years ago in **2164 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963). Because I believe that the unique importance of a parent’s interest in the care and
custody of his or her child cannot constitutionally be extinguished through formal judicial
proceedings without the benefit of counsel, I dissent.
I
This Court is not unfamiliar with the problem of determining under what circumstances
legal representation is mandated by the Constitution. In Betts v. Brady, 316 U.S. 455, 62
S.Ct. 1252, 86 L.Ed. 1595 (1942), it reviewed at length both the tradition behind the
Sixth Amendment right to counsel in criminal trials and the historical practices of the
States in that area. The decision in Betts--that the Sixth Amendment right to counsel did
not apply to the States and that the due process guarantee of the Fourteenth Amendment
permitted a flexible, case-by-case determination of the defendant’s need for counsel in
state criminal trials--was overruled in Gideon v. Wainwright, 372 U.S., at 345, 83 S.Ct.,
at 797. The Court in Gideon rejected the Betts *36 reasoning to the effect that counsel for
indigent criminal defendants was “ ‘not a fundamental right, essential to a fair trial.’ “
372 U.S., at 340, 83 S.Ct., at 794 (quoting Betts v. Brady, 316 U.S., at 471), 62 S.Ct., at
1261. Finding the right well founded in its precedents, the Court further concluded that
“reason and reflection require us to recognize that in our adversary system of criminal
justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a
fair trial unless counsel is provided for him.” 372 U.S., at 344, 83 S.Ct., at 796.
Similarly, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972),
assistance of counsel was found to be a requisite under the Sixth Amendment, as
incorporated into the Fourteenth, even for a misdemeanor offense punishable by
imprisonment for less than six months. [FN1]
FN1. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the
Court’s analysis of Sixth Amendment jurisprudence led to the conclusion that the right to
counsel is not constitutionally mandated when imprisonment is not actually imposed.

Outside the criminal context, however, the Court has relied on the flexible nature of the
due process guarantee whenever it has decided that counsel is not constitutionally
required. The special purposes of probation revocation determinations, and the informal
nature of those administrative proceedings, including the absence of counsel for the State,
led the Court to conclude that due process does not require counsel for probationers.
Gagnon v. Scarpelli, 411 U.S. 778, 785-789, 93 S.Ct. 1756, 1761-1763, 36 L.Ed.2d 656
(1973). In the case of school disciplinary proceedings, which are brief, informal, and
intended in part to be educative, the Court also found no requirement for legal counsel.
Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975). Most
recently, the Court declined to intrude the presence of counsel for a minor facing
voluntary civil commitment by his parent, because of the parent’s substantial role in that
decision and because of the decision’s essentially medical and informal nature. Parham
v. J.R., 442 U.S. 584, 604- 609, 99 S.Ct. 2493, 2505, 61 L.Ed.2d 101 (1979).
In each of these instances, the Court has recognized that *37 what process is due varies in
relation to the interests at stake and the nature of the governmental proceedings. Where
the individual’s liberty interest is of diminished or less than fundamental stature, or where
the prescribed procedure involves informal decisionmaking without the trappings of an
adversarial trial- type proceeding, counsel has not been a requisite of due process.
Implicit in this analysis is the fact that the contrary conclusion sometimes may be
warranted. Where an individual’s liberty interest assumes sufficiently weighty
constitutional significance, and the State by a formal and adversarial proceeding seeks to
curtail that interest, the right to counsel may be necessary to ensure fundamental fairness.
See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). **2165 To say this
is simply to acknowledge that due process allows for the adoption of different rules to
address different situations or contexts.
It is not disputed that state intervention to terminate the relationship between petitioner
and her child must be accomplished by procedures meeting the requisites of the Due
Process Clause. Nor is there any doubt here about the kind of procedure North Carolina
has prescribed. North Carolina law requires notice and a trial-type hearing before the
State on its own initiative may sever the bonds of parenthood. The decisionmaker is a
judge, the rules of evidence are in force, and the State is represented by counsel. The
question, then, is whether proceedings in this mold, that relate to a subject so vital, can
comport with fundamental fairness when the defendant parent remains unrepresented by
counsel. As the Court today properly acknowledges, our consideration of the process due
in this context, as in others, must rely on a balancing of the competing private and public
interests, an approach succinctly described in Mathews v. Eldridge, 424 U.S. 319, 335, 96
S.Ct. 893, 903, 47, L.Ed.2d 18 (1976). [FN2] As does the majority, I *38 evaluate the
“three distinct factors” specified in Eldridge: the private interest affected; the risk of error
under the procedure employed by the State; and the countervailing governmental interest
in support of the challenged procedure.
FN2. See also Little v. Streater, 452 U.S., at 5-6, 13-16, 101 S.Ct., at 2205, 2209-2210;
Smith v. Organization of Foster Families, 431 U.S. 816, 848-849, 97 S.Ct. 2094, 53
L.Ed.2d 14 (1977); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33
L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 1017-
1018, 25 L.Ed.2d 287 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct.
1743, 1748, 6 L.Ed.2d 1230 (1961).

A
At stake here is “the interest of a parent in the companionship, care, custody, and
management of his or her children.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct.
1208, 1212, 31 L.Ed.2d 551 (1972). This interest occupies a unique place in our legal
culture, given the centrality of family life as the focus for personal meaning and
responsibility. “[F]ar more precious ... than property rights,” May v. Anderson, 345 U.S.
528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953), parental rights have been deemed to
be among those “essential to the orderly pursuit of happiness by free men,” Meyer v.
Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), and to be more
significant and priceless than “ ‘liberties which derive merely from shifting economic
arrangements.’ “ Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct., at 1212, quoting Kovacs v.
Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J.,
concurring). Accordingly, although the Constitution is verbally silent on the specific
subject of families, freedom of personal choice in matters of family life long has been
viewed as a fundamental liberty interest worthy of protection under the Fourteenth
Amendment. Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S. Ct.
2094, 2110, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct.
1932, 1935, 52 L.Ed.2d 531 (1977) (plurality opinion); Prince v. Massachusetts, 321 U.S.
158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S.
510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S., at
399, 43 S.Ct., at 626. Within the general ambit of family integrity, the Court has accorded
a high degree of constitutional respect to a natural parent’s interest both in controlling the
details of the child’s upbringing, *39 Wisconsin v. Yoder, 406 U.S. 205, 232-234, 92
S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S., at
534-535, 45 S.Ct., at 573, and in retaining the custody and companionship of the child,
Smith v. Organization of Foster Families, 431 U.S., at 842-847, 97 S.Ct., at 2108-2111;
Stanley v. Illinois, 405 U.S., at 651, 92 S.Ct., at 1212.
In this case, the State’s aim is not simply to influence the parent-child relationship but to
extinguish it. A termination of parental **2166 rights is both total and irrevocable. [FN3]
Unlike other custody proceedings, it leaves the parent with no right to visit or
communicate with the child, to participate in, or even to know about, any important
decision affecting the child’s religious, educational, emotional, or physical development.
It is hardly surprising that this forced dissolution of the parent-child relationship has been
recognized as a punitive sanction by courts, [FN4] Congress, [FN5] and commentators.
[FN6] *40 The Court candidly notes, as it must, ante, at 2160, that termination of
parental rights by the State is a “unique kind of deprivation.”
FN3. Under North Carolina law, when a child is adjudged to be abused,
neglected, or dependent, the dispositional alternatives are not couched in terms of
permanence. See N.C.Gen.Stat. §§ 7A-647, 7A-651 (Supp.1979). In contrast, the
State’s termination statute specifically provides that an order terminating parental rights
“completely and permanently terminates all rights and obligations” between parent and
child, except that the child’s right of inheritance continues until such time as the child
may be adopted. § 7A-289.33. Such absolute and total termination is not unusual. See
e.g., Ariz.Rev.Stat.Ann. § 8-539 (1974); Cal.Civ.Code Ann. § 232.6 (West Supp.1981);
Ind.Code § 31-6-5- 6(a) (Supp.1980); Ky.Rev.Stat. § 199.613(2) (Supp.1980);
Mo.Rev.Stat. § 211.482 (Supp.1980).

FN4. E. g., Davis v. Page, 640 F.2d 599, 604 (CA5 1981) (en banc); Brown v. Guy, 476
F.Supp. 771, 773 (Nev.1979); State ex rel. Lemaster v. Oakley, 157 W.Va. 590, 598,
203 S.E.2d 140, 144 (1974); Danforth v. State Dept. of Health & Welfare, 303 A.2d 794,
799-800 (Me.1973); In re Howard, 382 So.2d 194, 199 (La.App.1980).

FN5. See H.R.Rep.No. 95-1386, p. 22 (1978) (“removal of a child from the parents is a
penalty as great, if not greater, than a criminal
penalty....”). This Report accompanied the Indian Child Welfare Act of 1978, Pub.L. 95-
608, 92 Stat. 3069. Congress there provided for court-appointed counsel to indigent
Indian parents facing a termination proceeding. § 102(b), 92 Stat. 3071, 25 U.S.C. §
1911(b) (1976 ed., Supp.III).

FN6. See, e.g., Levine, Caveat Parens: A Demystification of the Child Protection System,
35 U.Pitt.L.Rev. 1, 52 (1973); Note, Child Neglect: Due Process for the Parent, 70
Colum.L.Rev. 465, 478 (1970); Representation in Child-Neglect Cases: Are Parents
Neglected?, 4 Colum.J.L. & Soc.Prob. 230, 250 (1968) (Parent Representation Study).

The magnitude of this deprivation is of critical significance in the due process calculus,
for the process to which an individual is entitled is in part determined “by the extent to
which he may be ‘condemned to suffer grievous loss.’ “ Goldberg v. Kelly, 397 U.S. 254,
263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970), quoting Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951)
(Frankfurter, J., concurring). See Little v. Streater, 452 U.S. 1, 12, 101 S.Ct. 2202,
2208- 2209, 68 L.Ed.2d 627 (1981); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.
2593, 2600, 33 L.Ed.2d 484 (1972). Surely there can be few losses more grievous than
the abrogation of parental rights. Yet the Court today asserts that this deprivation
somehow is less serious than threatened losses deemed to require appointed counsel,
because in this instance the parent’s own “personal liberty” is not at stake.
I do not believe that our cases support the “presumption” asserted, ante, at 2159, that
physical confinement is the only loss of liberty grievous enough to trigger a right to
appointed counsel under the Due Process Clause. Indeed, incarceration has been found to
be neither a necessary nor a sufficient condition for requiring counsel on behalf of an
indigent defendant. The prospect of canceled parole or probation, with its consequent
deprivation of personal liberty, has not led the Court to require counsel for a prisoner
facing a revocation proceeding. Gagnon v. Scarpelli, 411 U.S., at 785-789, 93 S.Ct., at
1761-1763; Morrissey v. Brewer, 408 U.S., at 489, 92 S.Ct., at 2604. On the other hand,
the fact that no new incarceration was threatened by a transfer from prison to a mental
hospital did not preclude the Court’s recognition of adverse changes in the conditions
of*41 confinement and of the stigma that presumably is associated with being labeled
mentally ill. Vitek v. Jones, 445 U.S. 480, 492, 494, 100 S.Ct. 1254, 1263, 1264, 63
L.Ed.2d 552 (1980). For four Members of the Court, these “other **2167 deprivations of
liberty,” coupled with the possibly diminished mental capacity of the prisoner, compelled
the provision of counsel for any indigent prisoner facing a transfer hearing. Id., at 496-
497, 100 S.Ct., at 1265 (opinion of WHITE, J., joined by BRENNAN, MARSHALL, and
STEVENS, JJ.). [FN7] See also In re Gault, 387 U.S., at 24-25, 87 S.Ct., at 1442.
FN7. Justice Powell agreed with the plurality that independent representation must be
provided to an inmate facing involuntary transfer to a state mental hospital, but concluded
that this representative need not be an attorney because the transfer hearing was informal
and the central issue was a medical one. 445 U.S., at 498-500, 100 S.Ct., at 1266-1267.

Moreover, the Court’s recourse to a “pre-eminent generalization,” ante, at 2158,

misrepresents the importance of our flexible approach to due process. That approach
consistently has emphasized attentiveness to the particular context. Once an individual
interest is deemed sufficiently substantial or fundamental, determining the constitutional
necessity of a requested procedural protection requires that we examine the nature of the
proceeding--both the risk of error if the protection is not provided and the burdens created
by its imposition. [FN8] Compare Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970), *42 with Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47
L.Ed.2d 1 (1976), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556
(1972), with Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406
(1974).
FN8. By emphasizing the value of physical liberty to the exclusion of all other
fundamental interests, the Court today grants an unnecessary and burdensome new layer
of analysis onto its traditional three-factor balancing test. Apart from improperly
conflating two distinct lines of prior cases, see supra, at 2164-2165, the Court’s reliance
on a “rebuttable presumption” sets a dangerous precedent that may undermine objective
judicial review regarding other procedural protections. Even in the area of juvenile court
delinquency proceedings, where the threat of incarceration arguably supports an
automatic analogy to the criminal process, the Court has eschewed a bright-line approach.
Instead, it has evaluated each requested procedural protection in light of its consequences
for fair play and truth determination. See generally McKeiver v. Pennsylvania, 403 U.S.
528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358, 90 S.Ct. 1068,
25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Rather than opting for the insensitive presumption that incarceration is the only loss of
liberty sufficiently onerous to justify a right to appointed counsel, I would abide by the
Court’s enduring commitment to examine the relationships among the interests on both
sides, and the appropriateness of counsel in the specific type of proceeding. The
fundamental significance of the liberty interest at stake in a parental termination
proceeding is undeniable, and I would find this first portion of the due proces balance
weighing heavily in favor of refined procedural protections. The second Eldridge factor,
namely, the risk of error in the procedure provided by the State, must then be reviewed
with some care.
B
The method chosen by North Carolina to extinguish parental rights resembles in many
respects a criminal prosecution. Unlike the probation revocation procedure reviewed in
Gagnon v. Scarpelli, on which the Court so heavily relies, the termination procedure is
distinctly formal and adversarial. The State initiates the proceeding by filing a petition in
district court, N.C.Gen.Stat. §§ 7A-289.23 and 7A-289.25 (Supp.1979), [FN9] and
serving a summons on the parent, § 7A-289.27(1). A state judge presides over the
adjudicatory hearing that follows, and the hearing is conducted pursuant to the formal
rules of evidence and procedure. N.C.Rule Civ.Proc. 1, N.C.Gen.Stat. § 1A-1
(Supp.1979). In general, *43 hearsay is inadmissible **2168 and records must be
authenticated. See, e.g. § 1A-1, Rules 1, 43, 44, 46.
FN9. A petition for termination may also be filed by a private party, such as a judicially
appointed guardian, a foster parent, or the other natural parent. N.C.Gen.Stat. § 7A-
289.24 (Supp.1979). Because the State in those circumstances may not be performing the
same adversarial and accusatory role, an application of the three Eldridge factors might
yield a different result with respect to the right to counsel.

In addition, the proceeding has an obvious accusatory and punitive focus. In moving to
terminate a parent’s rights, the State has concluded that it no longer will try to preserve
the family unit, but instead will marshal an array of public resources to establish that the
parent-child separation must be made permanent. [FN10] The State has legal
representation through the county attorney. This lawyer has access to public records
concerning the family and to professional social workers who are empowered to
investigate the family situation and to testify against the parent. The State’s legal
representative may also call upon experts in family relations, psychology, and medicine
to bolster the State’s case. And, of course, the State’s counsel himself is an expert in the
legal standards and techniques employed at the termination proceeding, including the
methods of cross-examination.
FN10. Significantly, the parent’s rights and interests are not mentioned at all under the
statement of purpose for the North Carolina termination statute. See N.C.Gen.Stat. §
7A-289.22 (Supp.1979). In contrast, in abuse, neglect, and dependency proceedings the
State has a statutory obligation to keep a family together whenever possible. § 7A-542.
Thus, the State has chosen to provide counsel for parents, § 7A-587, in circumstances
where it shares at least in part their interest in family integrity but not where it regards the
parent as an opponent. The Assistant Attorney General of North Carolina explained the
decision to furnish appointed counsel at the abuse and neglect stage by pointing to the
State’s need to avoid an awkward situation, given its possibly conflicting responsibilities
to parent and child. Tr. of Oral Arg. 39-40. While this may be sound as a matter of
public policy, it cannot excuse the failure to provide counsel at the termination stage,
where the State and the indigent parent are adversaries, and the inequality of power and
resources is starkly evident.
The possibility of providing counsel for the child at the termination proceeding has not
been raised by the parties. That prospect requires consideration of interests different
from those presented here, and again might yield a different result with respect to the
right to counsel. See generally Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d
101 (1979); Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53
L.Ed.2d 14 (1977).

*44 In each of these respects, the procedure devised by the State vastly differs from the
informal and rehabilitative probation revocation decision in Scarpelli, the brief, educative
school disciplinary procedure in Goss, and the essentially medical decision in Parham.
Indeed, the State here has prescribed virtually all the attributes of a formal trial as befits
the severity of the loss at stake in the termination decision--every attribute, that is, except
counsel for the defendant parent. The provision of counsel for the parent would not alter
the character of the proceeding, which is already adversarial, formal, and quintessentially
legal. It, however, would diminish the prospect of an erroneous termination, a prospect
that is inherently substantial, given the gross disparity in power and resources between
the State and the uncounseled indigent parent. [FN11]
FN11. Cf. Parham v. J.R., 442 U.S., at 606-607, 99 S.Ct., at 2506- 2507; Goldberg v.
Kelly, 397 U.S., at 266, 90 S.Ct., at 1019.

The prospect of error is enhanced in light of the legal standard against which the
defendant parent is judged. As demonstrated here, that standard commonly adds another
dimension to the complexity of the termination proceeding. Rather than focusing on the
facts of isolated acts or omissions, the State’s charges typically address the nature and
quality of complicated ongoing relationships among parent, child, other relatives, and
even unrelated parties. In the case at bar, the State’s petition accused petitioner of two of
the several grounds authorizing termination of parental rights under North Carolina law:
“That [petitioner] has without cause, failed to establish or maintain concern or
responsibility as to the child’s welfare.
***
“That [petitioner] has willfully left the child in foster care for more than two consecutive
years without showing *45 that substantial progress has been made in **2169 correcting
the conditions which led to the removal of the child [for neglect], or without showing a
positive response to the diligent efforts of the Department of Social Services to strengthen
her relationship to the child, orto make and follow through with constructive planning for
the future of the child.” (Emphasis supplied.) Juvenile Petition ¶¶ 6, 7, App. 3. [FN12]
FN12. See N.C.Gen.Stat. §§ 7A-289.32(1), 7A-289.32(3) (Supp.1977). Subdivision §
7A-289.32(1) was repealed by 1979 N.C.Sess.Laws, ch. 669, § 2.

The legal issues posed by the State’s petition are neither simple nor easily defined. The
standard is imprecise and open to the subjective values of the judge. [FN13] A parent
seeking to prevail against the State must be prepared to adduce evidence about his or her
personal abilities and lack of fault, as well as proof of progress and foresight as a parent
that the State would deem adequate and improved over the situation underlying a
previous adverse judgment of child neglect. The parent cannot possibly succeed without
being able to identify material issues, develop defenses, gather and present *46 sufficient
supporting nonhearsay evidence, and conduct cross-examination of adverse witnesses.
FN13. Under North Carolina law, there is a further stage to the termination inquiry.
Should the trial court determine that one or more of the conditions authorizing
termination has been established, it then must consider whether the best interests of the
child require maintenance of the parent-child relationship. N.C.Gen.Stat. § 7A-
289.31(a) (Supp.1979).

This Court more than once has adverted to the fact that the “best interests of the child”
standard offers little guidance to judges, and may effectively encourage them to rely on
their own personal values. See, e. g., Smith v. Organization of Foster Families, 431
U.S., at 835, n. 36, 97 S. Ct., at 2105, n. 36; Bellotti v. Baird, 443 U.S. 622, 655, 99
S.Ct. 3035, 3054, 61 L.Ed.2d 797 (1979) (STEVENS, J., concurring in judgment). See
also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978).
Several courts, perceiving similar risks, have gone so far as to invalidate parental
termination statutes on vagueness grounds. See e. g., Alsager v. District Court of Polk
Cty., 406 F.Supp. 10, 18-19 (SD Iowa 1975), aff’d on other grounds, 545 F.2d 1137
(CA8 1976); Davis v. Smith, 266 Ark. 112, 121-123, 583 S.W.2d 37, 42-43 (1979).

The Court, of course, acknowledges, ante, at 2161, that these tasks “may combine to
overwhelm an uncounseled parent.” I submit that that is a profound understatement.
Faced with a formal accusatory adjudication, with an adversary--the State--that
commands great investigative and prosecutorial resources, with standards that involve ill-
defined notions of fault and adequate parenting, and with the inevitable tendency of a
court to apply subjective values or to defer to the State’s “expertise,” the defendant parent
plainly is outstripped if he or she is without the assistance of “ ‘the guiding hand of
counsel.’ “ In re Gault, 387 U.S., at 36, 87 S.Ct., at 1448, quoting Powell v. Alabama,
287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). When the parent is indigent,
lacking in education, and easily intimidated by figures of authority, [FN14] the imbalance
may well become insuperable.
FN14. See Schetky, Angell, Morrison, & Sack, Parents Who Fail: A Study of 51 Cases of
Termination of Parental Rights, 18 J.Am.Acad. Child Psych. 366, 375 (1979) (citing
minimal educational backgrounds). See also Davis v. Page, 442 F.Supp. 258, 260 (SD
Fla.1977) (uncounseled parent, ignorant of governing substantive law, “was little more
than a spectator in the adjudicatory [dependency] proceeding,” and “sat silently through
most of the hearing ... fearful of antagonizing the social
workers”), aff’d in part, 640 F.2d 599 (CA5 1981) (en banc).

The risk of error thus is severalfold. The parent who actually has achieved the
improvement or quality of parenting the State would require may be unable to establish
this fact. The parent who has failed in these regards may be unable to demonstrate cause,
absence of willfulness, or lack of agency diligence as justification. And errors of fact or
law in the State’s case may go unchallenged and uncorrected. [FN15] Given *47 **2170
the weight of the interests at stake, this risk of error assumes extraordinary proportions.
By intimidation, inarticulateness, or confusion, a parent can lose forever all contact and
involvement with his or her offspring.
FN15. See Parent Representation Study, at 241 (parents appearing in Kings County,
N.Y., Family Court, charged with neglect and represented by counsel, had higher rate of
dismissed petitions, 25% to 7.9%, and lower rate of neglect adjudications, 62.5% to
79.5%, than similarly charged parents appearing without counsel); Brief for Respondent
38-39, 25a-31a (study of state-initiated termination actions in 73 North Carolina counties;
parent prevailed in 5.5% of proceedings where represented by counsel, and in 0.15% of
proceedings where unrepresented).
While these statistics hardly are dispositive, I do not share the Court’s view, ante, at
2161, n. 5, that they are “unilluminating.” Since no evidence in either study indicates
that the defendant parent who can retain or is offered counsel is less culpable than the one
who appears unrepresented, it seems reasonable to infer that a sizable number of cases
against unrepresented parents end in termination solely because of the absence of
counsel. In addition, as the Court acknowledges, ante, at 2161, n. 5, the judges who
preside over termination hearings perceive them as less fair when the parent is without
counsel.

C
The final factor to be considered, the interests claimed for the State, do not tip the scale
against providing appointed counsel in this context. The State hardly is in a position to
assert here that it seeks the informality of a rehabilitative or educative proceeding into
which counsel for the parent would inject an unwelcome adversarial edge. As the
Assistant Attorney General of North Carolina declared before this Court, once the State
moves for termination, it “has made a decision that the child cannot go home and should
not go home. It no longer has an obligation to try and restore that family.” Tr. of Oral
Arg. 40.
The State may, and does, properly assert a legitimate interest in promoting the physical
and emotional well-being of its minor children. But this interest is not served by
terminating the rights of any concerned, responsible parent. Indeed, because North
Carolina is committed to “protect[ing] all children from the unnecessary severance of a
relationship with biological or legal parents,” § 7A-289.22(2), “the State spites its own
articulated goals when it needlessly *48 separates” the parent from the child. Stanley v.
Illinois, 405 U.S., at 653, [FN16] 92 S.Ct., at 1213.
FN16. The Court apparently shares this view. See ante, at 2159- 2160.

The State also has an interest in avoiding the cost and administrative inconvenience that
might accompany a right to appointed counsel. But, as the Court acknowledges, the
State’s fiscal interest “is hardly significant enough to overcome private interests as
important as those here.” Ante, at 2160. The State’s financial concern indeed is a limited
one, for the right to appointed counsel may well be restricted to those termination
proceedings that are instituted by the State. Moreover, no difficult line-drawing problem
would arise with respect to other types of civil proceedings. The instant due process
analysis takes full account of the fundamental nature of the parental interest, the
permanency of the threatened deprivation, the gross imbalance between the resources
employed by the prosecuting State and those available to the indigent parent, and the
relatively insubstantial cost of furnishing counsel. An absence of any one of these factors
might yield a different result. [FN17] But where, as here, the threatened loss of liberty is
severe and absolute, the State’s role is so clearly adversarial and punitive, and the cost
involved is relatively slight, there is no sound basis for refusing to recognize the right to
counsel as a requisite of due process in a proceeding initiated by the State to terminate
parental rights.
FN17. Thus, for example, the State’s involvement in adjudicating the competing claims
for child custody between parents in a divorce proceeding need not obligate it to provide
counsel for indigent parents.

II
A
The Court’s analysis is markedly similar to mine; it, too, analyzes the three factors listed
in Mathews v. Eldridge, and it, too, finds the private interest weighty, the procedure
**2171 devised by the State fraught with risks of error, and the countervailing *49
governmental interest insubstantial. Yet, rather than follow this balancing process to its
logical conclusion, the Court abruptly pulls back and announces that a defendant parent
must await a case-by-case determination of his or her need for counsel. Because the three
factors “will not always be so distributed,” reasons the Court, the Constitution should not
be read to “requir[e] the appointment of counsel in every parental termination
proceeding.” Ante, at 2162 (emphasis added). This conclusion is not only illogical, but it
also marks a sharp departure from the due process analysis consistently applied
heretofore. The flexibility of due process, the Court has held, requires case-by-case
consideration of different decisionmaking contexts, not of different litigants within a
given context. In analyzing the nature of the private and governmental interests at stake,
along with the risk of error, the Court in the past has not limited itself to the particular
case at hand. Instead, after addressing the three factors as generic elements in the context
raised by the particular case, the Court then has formulated a rule that has general
application to similarly situated cases.
The Court’s own precedents make this clear. In Goldberg v. Kelly, the Court found that
the desperate economic conditions experienced by welfare recipients as a class
distinguished them from other recipients of governmental benefits. 397 U.S., at 264, 90
S.Ct., at 1018. In Mathews v. Eldridge, the Court concluded that the needs of Social
Security disability recipients were not of comparable urgency, and, moreover, that
existing pretermination procedures, based largely on written medical assessments, were
likely to be more objective and even-handed than typical welfare entitlement decisions.
424 U.S., at 339-345, 96 S.Ct., at 904-907. These cases established rules translating due
process in the welfare context as requiring a pretermination hearing but dispensing with
that requirement in the disability benefit context. A showing that a particular welfare
recipient had access to additional income, or that a disability recipient’s eligibility turned
on testimony rather than *50 written medical reports, would not result in an exception
from the required procedural norMs. The Court reasoned in Eldridge:
“To be sure, credibility and veracity may be a factor in the ultimate disability assessment
in some cases. But procedural due process rules are shaped by the risk of error inherent
in the truth-finding process as applied to the generality of cases, not the rare exceptions.”
Id., at 344, 96 S.Ct., at 907.
There are sound reasons for this. Procedural norms are devised to ensure that justice may
be done in every case, and to protect litigants against unpredictable and unchecked
adverse governmental action. Through experience with decisions in varied situations
over time, lessons emerge that reflect a general understanding as to what is minimally
necessary to assure fair play. Such lessons are best expressed to have general application
which guarantees the predictability and uniformity that underlie our society’s
commitment to the rule of law. By endorsing, instead, a retrospective review of the trial
record of each particular defendant parent, the Court today undermines the very rationale
on which this concept of general fairness is based. [FN18]
FN18. The Court’s decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973), is not to the contrary. In Scarpelli, the Court determined that due
process requires an individualized approach to requests for counsel by probationers
facing revocation. The rule established there was based on respect for the rehabilitative
focus of the probation system, the informality of probation proceedings, and the
diminished liberty interest of an already-convicted probationer. Id., at 785-789, 93 S.Ct.,
at 1761-1763. None of these elements is present here. See also Wolff v. McDonnell, 418
U.S. 539, 569-570, 94 S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974).

Moreover, the case-by-case approach advanced by the Court itself entails serious dangers
for the interests at stake and the general administration of justice. The **2172 Court
assumes that a review of the record will establish whether a defendant, proceeding
without counsel, has suffered an fair *51 disadvantage. But in the ordinary case, this
simply is not so. The pleadings and transcript of an uncounseled termination proceeding
at most will show the obvious blunders and omissions of the defendant parent.
Determining the difference legal representation would have made becomes possible only
through imagination, investigation, and legal research focused on the particular case.
Even if the reviewing court can embark on such an enterprise in each case, it might be
hard pressed to discern the significance of failures to challenge the State’s evidence or to
develop a satisfactory defense. Such failures, however, often cut to the essence of the
fairness of the trial, and a court’s inability to compensate for them effectively eviscerates
the presumption of innocence. Because a parent acting pro se is even more likely to be
unaware of controlling legal standards and practices, and unskilled in garnering relevant
facts, it is difficult, if not impossible, to conclude that the typical case has been
adequately presented. Cf. Betts v. Brady, 316 U.S., at 476, 62 S.Ct., at 1263 (dissenting
opinion). [FN19]
FN19. Of course, the case-by-case approach announced by the Court today places an
even heavier burden on the trial court, which will be required to determine in advance
what difference legal representation might make. A trial judge will be obligated to
examine the State’s documentary and testimonial evidence well before the hearing so as
to reach an informed decision about the need for counsel in time to allow adequate
preparation of the parent’s case.
Assuming that this ad hoc review were adequate to ensure fairness, it is likely to be both
cumbersome and costly. And because such review involves constitutional rights
implicated by state adjudications, it necessarily will result in increased federal
interference in state proceedings. The Court’s implication to the contrary, see ante, at
2162-2163, is belied by the Court’s experience in the aftermath of Betts v. Brady. The
Court was confronted with innumerable post verdict challenges to the fairness of
particular trials, and expended much*52 energy in effect evaluating the performance of
state judges. [FN20] This level of intervention in the criminal processes of the States
prompted Justice Frankfurter, speaking for himself and two others, to complain that the
Court was performing as a “super-legal-aid bureau.” Uveges v. Pennsylvania, 335 U.S.
437, 450, 69 S.Ct. 184, 190, 93 L.Ed. 127 (1948) (dissenting opinion). I fear that the
decision today may transform the Court into a “super family court.”
FN20. See, e. g., Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188
(1950); Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948); Bute
v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948); Marino v. Ragen, 332 U.S.
561, 68 S.Ct. 240, 92 L.Ed. 170 (1947); Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90
L.Ed. 61 (1945); Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407 (1945).
See generally W. Beaney, The Right to Counsel in American Courts 160-198 (1955).

B
The problem of inadequate representation is painfully apparent in the present case.
Petitioner, Abby Gail Lassiter, is the mother of five children. The State moved to remove
the fifth child, William, from petitioner’s care on the grounds of parental neglect.
Although petitioner received notice of the removal proceedings, she did not appear at the
hearing and was not represented. In May 1975, the State’s District Court adjudicated
William to be neglected under North Carolina law and placed him in the custody of the
Durham County Department of Social Services. At some point, petitioner evidently
arranged for the other four children to reside with and be cared for by her mother, Mrs.
Lucille Lassiter. They remain under their grandmother’s care at the present time.
As the Court notes, ante, at 2157, petitioner did not visit William after July 1976. She
was unable to do so, for she was imprisoned as a result of her conviction for second-
degree murder. In December 1977, **2173 she was visited in prison by a Durham
County social worker who advised her that the Department planned to terminate her
parental rights with respect to William. Petitioner immediately expressed strong *53
opposition to that plan and indicated a desire to place the child with his grandmother.
Hearing Tr. 15. After receiving a summons, a copy of the State’s termination petition,
and notice that a termination hearing would be held in August 1978, petitioner informed
her prison guards about the legal proceeding. They took no steps to assist her in
obtaining legal representation, id., at 4; App. I to Reply to Brief in Opposition 4, nor was
she informed that she had a right to counsel. [FN21] Under these circumstances, it
scarcely would be appropriate, or fair, to find that petitioner had knowingly and
intelligently waived a right to counsel.
FN21. During her imprisonment, petitioner had spoken with an attorney concerning her
criminal conviction. She did not discuss the termination proceeding with this lawyer, and
he has stated under oath that in view of her indigency he would not have been interested
in representing her at that proceeding even had she asked him to do so. App. 10-11, 16.

At the termination hearing, the State’s sole witness was the county worker who had met
petitioner on the one occasion at the prison. This worker had been assigned to William’s
case in August 1977, yet much of her testimony concerned events prior to that date; she
represented these events as contained in the agency record. Hearing Tr. 10-13.
Petitioner failed to uncover this weakness in the worker’s testimony. That is hardly
surprising, for there is no indication that an agency record was introduced into evidence
or was present in court, or that petitioner or the grandmother ever had an opportunity to
review any such record. The social worker also testified about her conversations with
members of the community. In this hearsay testimony, the witness reported the opinion
of others that the grandmother could not handle the additional responsibility of caring for
the fifth child. Id., at 14- 15. There is no indication that these community members were
unavailable to testify, and the County Attorney did not justify the admission of the
hearsay. Petitioner made no objection to its admission.
*54 The court gave petitioner an opportunity to cross-examine the social worker, id., at
19, but she apparently did not understand that cross-examination required questioning
rather than declarative statements. At this point, the judge became noticeably impatient
with petitioner. [FN22] Petitioner then *55 took the stand, and testified that she wanted
William to live with his grandmother **2174 and his siblings. The judge questioned her
for a brief period, and expressed open disbelief at one of her answers. [FN23] The final
witness was the grandmother. Both the judge and the County Attorney questioned her.
She denied having expressed unwillingness to take William into her home, and
vehemently contradicted the social worker’s statement that she had complained to the
Department about her daughter’s neglect of the child. [FN24] Petitioner was not told that
she could question her mother, and did not do so. [FN25] The County Attorney made a
closing argument, id., at 58-60, *56 and the judge then asked petitioner if she had any
final remarks. She responded: “Yes. I don’t think it’s right.” Id., at 61.
FN22. Hearing Tr. 19-20:

“THE COURT: All right. Do you want to ask her any questions?
“[PETITIONER]: About what? About what she--

“THE COURT: About this child.

“[PETITIONER]: Oh, yes.

“THE COURT: All right. Go ahead.

“[PETITIONER]: The only thing I know is that when you say--

“THE COURT: I don’t want you to testify.

“[PETITIONER]: Okay.
“THE COURT: I want to know whether you want to cross-examine her or ask any
questions.

“[PETITIONER]: Yes, I want to. Well, you know, the only thing I know about is my
part that I know about it. I know--

“THE COURT: I am not talking about what you know. I want to know if you want to ask
her any questions or not.

“[PETITIONER]: About that?

“THE COURT: Yes. Do you understand the nature of this proceeding?

“[PETITIONER]: Yes.

“THE COURT: And that is to terminate any rights you have to the child and place it for
adoption, if necessary.

“[PETITIONER]: Yes, I know.

“THE COURT: Are there any questions you want to ask her about what she has
testified to?

“[PETITIONER]: Yes.

“THE COURT: All right. Go ahead.

“[PETITIONER]: I want to know why you think you are going to turn my child over to a
foster home? He knows my mother and he knows all of us. He knows her and he knows
all of us.

“THE COURT: Who is he?

“[PETITIONER]: My son, William.

“[SOCIAL WORKER]: Ms. Lassiter, your son has been in foster care since May of 1975
and since that time--

“[PETITIONER]: Yeah, yeah and I didn’t know anything about it either.”

FN23. Id., at 30:

“[THE COURT]: Did you know that your mother filed a complaint on the 8th day of
May, 1975....?
“A: No, ‘cause she said she didn’t file no complaint.

“[THE COURT]: That was some ghost who came up here and filed it I suppose.”

The judge concluded his questioning by saying to the County Attorney: “All right, Mr.
Odom, see what you can do.” Id., at 36.

FN24. This latter denial produced the following reaction from the court, id., at 55:

“Q [from respondent]: Did you tell Ms. Mangum on the 8th day of May, 1975, that when
your daughter was in the hospital having William that she left the children in the cold
house with no heat?

“A: No, sir, no, sir, unh unh, no, sir.

“[PETITIONER]: That’s a lie.

“A: No, sir, no, sir. God knows, I’ll raise my right hand to God and die saying that.
Somebody else told that.

“[THE COURT]: I wish you wouldn’t talk like that it scares me to be in the same room
with you.”

FN25. The judge had initiated the examination of Mrs. Lassiter; subsequently he
expressed exasperation with the rambling quality of her answers, id., at 52:

“THE COURT: I tell you what, let’s just stop all this. You question her, please. Just
answer his questions. We’ll be here all day at this rate. I mean, we are just wasting time,
we’re skipping from one subject to another--
“CROSS EXAMINATION BY [RESPONDENT]: ....”

It is perhaps understandable that the District Court Judge experienced difficulty and
exasperation in conducting this hearing. But both the difficulty and the exasperation are
attributable in large measure, if not entirely, to the lack of counsel. An experienced
attorney might have translated petitioner’s reaction and emotion into several substantive
legal arguments. The State charged petitioner with failing to arrange a “constructive
plan” for her child’s future or to demonstrate a “positive response” to the Department’s
intervention. A defense would have been that petitioner had arranged for the child to be
cared for properly by his grandmother, and evidence might have been adduced to
demonstrate the adequacy of the grandmother’s care of the other children. See, e. g., In
re Valdez, 29 Utah 2d 63, 504 P.2d 1372 (1973); Welfare Commissioner v. Anonymous,
33 Conn.Supp. 100, 364 A.2d 250 (1976); Diernfeld v. People, 137 Colo. 238, 323 P.2d
628 (1958). See generally Moore v. East Cleveland, 431 U.S., at 504, 97 S.Ct., at 1938
(plurality opinion); id., at 508-510, 97 S.Ct., at 1940-1941 (opinion of BRENNAN, J.).
The Department’s own “diligence” in promoting the family’s integrity was never put in
issue during the hearing, yet it is surely significant in light of petitioner’s incarceration
and lack of access to her child. See, e.g., Weaver v. Roanoke Dept. of Human Resources,
220 Va. 921, 929, 265 S.E.2d 692, 697 (1980); In re Christopher H., 577 P.2d 1292,
1294 (Okla.1978); In re Kimberly I., 72 App.Div.2d 831, 833, 421 N.Y.S.2d 649, 651
(1979). Finally, the asserted willfulness of petitioner’s lack of concern could obviously
have been attacked since she was physically unable to regain custody or perhaps even to
receive meaningful visits during 21 of the 24 months preceding the action. Cf. In re
Dinsmore, 36 N.C.App. 720, 245 S.E.2d 386 (1978).
*57 III
Petitioner plainly has not led the life of the exemplary citizen or model parent. It may
well be that if she were accorded competent legal representation, the ultimate result
**2175 in this particular case would be the same. But the issue before the Court is not
petitioner’s character; it is whether she was given a meaningful opportunity to be heard
when the State moved to terminate absolutely her parental rights. [FN26] in light of the
unpursued avenues of defense, and of the experience petitioner underwent at the hearing,
I find virtually incredible the Court’s conclusion today that her termination proceeding
was fundamentally fair. To reach that conclusion, the Court simply ignores the
defendant’s obvious inability to speak effectively for herself, a factor the Court has found
to be highly significant in past cases. See Gagnon v. Scarpelli, 411 U.S., at 791, 93 S.Ct.,
at 1764; Uveges v. Pennsylvania, 335 U.S., at 441-442, 69 S.Ct., at 185-186; Bute v.
Illinois, 333 U.S. 640, 677, 68 S.Ct. 763, 782, 92 L.Ed. 986 (1948). See also Vitek v.
Jones, 445 U.S., at 496-497, 100 S.Ct., at 1265 (plurality opinion); id., at 498, 100 S.Ct.,
at 1266 (opinion of POWELL, J.). I am unable to ignore that factor; instead, I believe
that the record, and the norms of *58 fairness acknowledged by the majority, compel a
holding according counsel to petitioner and persons similarly situated.
FN26. Unfortunately, the Court does not confine itself to the issue at hand. By going
outside the official record of this case, ante, at 2156, n. 1, to unearth and recite details of
petitioner’s second-degree murder conviction set forth in an unpublished state appellate
opinion, see State v. Lassiter, 33 N.C.App. 405, 235 S.E.2d 289 (1977); Rule 30(e)(3),
N.C. Rules of Appellate Procedure, N.C.Gen.Stat. (Supp.1979 to Vol. 4A), the Court
apparently believes it has contributed evidence relevant to petitioner’s fitness as a parent,
and perhaps to the fitness of petitioner’s mother as well. But while some States retain
statutes permitting parental rights to be terminated upon a parent’s criminal conviction,
North Carolina is not among them. See N.C.Gen.Stat. § 7A-
289.32 (Supp.1979). See Note, On Prisoners and Parenting: Preserving the Tie that
Binds, 87 Yale L.J. 1408, 1409-1410 (1978). Reliance on such evidence is likely to
encourage the kind of subjective value judgments that an adversarial judicial proceeding
is meant to avoid.

Finally, I deem it not a little ironic that the Court on this very day grants, on due process
grounds, an indigent putative father’s claim for state-paid blood grouping tests in the
interest of according him a meaningful opportunity to disprove his paternity, Little v.
Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627, but in the present case rejects, on
due process grounds, an indigent mother’s claim for state-paid legal assistance when the
State seeks to take her own child away from her in a termination proceeding. In Little v.
Streater, the Court stresses and relies upon the need for “procedural fairness,” the
“compelling interest in the accuracy of [the] determination,” the “not inconsiderable” risk
of error, the indigent’s “fac[ing] the State as an adversary,” and “fundamental fairness,”
452 U.S., at 13, 14, and 16, 101 S.Ct., at 2209 and 2210.
There is some measure of inconsistency and tension here, it seems to me. I can attribute
the distinction the Court draws only to a presumed difference between what it views as
the “civil” and the “quasi-criminal,” Little v. Streater, 452 U.S., at 10, 101 S.Ct., at 2207.
Given the factual context of the two cases decided today, the significance of that
presumed difference eludes me.
Ours, supposedly, is “a maturing society,” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct.
590, 598, 2 L.Ed.2d 596 (1958) (plurality opinion), and our notion of due process is,
“perhaps, the least frozen concept of our law.” Griffin v. Illinois, 351 U.S. 12, 20, 76
S.Ct. 585, 591, 100 L.Ed. 891 (1956) (opinion concurring in judgment). If the Court in
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), was able to
perceive as constitutionally necessary the access to judicial resources required to dissolve
a marriage at the behest of private parties, surely it should perceive as similarly necessary
the requested access to legal resources when the State itself seeks to dissolve the intimate
and personal family bonds between parent and child. It will not open the “floodgates”
that, I suspect, the Court *59 fears. On the contrary, we cannot **2176 constitutionally
afford the closure that the result in this sad case imposes upon us all.
I respectfully dissent.

Justice STEVENS, dissenting.

A woman’s misconduct may cause the State to take formal steps to deprive her of her
liberty. The State may incarcerate her for a fixed term and also may permanently deprive
her of her freedom to associate with her child. The former is a pure deprivation of
liberty; the latter is a deprivation of both liberty and property, because statutory rights of
inheritance as well as the natural relationship may be destroyed. Although both
deprivations are serious, often the deprivation of parental rights will be the more grievous
of the two. The plain language of the Fourteenth Amendment commands that both
deprivations must be accompanied by due process of law. [FN*]
FN* The Fourteenth Amendment provides in part:

“No State shall ... deprive any person of life, liberty, or property, without due process of
law ....”

Without so stating explicitly, the Court appears to treat this case as though it merely
involved the deprivation of an interest in property that is less worthy of protection than a
person’s liberty. The analysis employed in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct.
893, 47 L.Ed.2d 18, in which the Court balanced the costs and benefits of different
procedural mechanisms for allocating a finite quantity of material resources among
competing claimants, is an appropriate method of determining what process is due in
property cases. Meeting the Court on its own terms, Justice BLACKMUN demonstrates
that the Mathews v. Eldridge analysis requires the appointment of counsel in this type of
case. I agree with his conclusion, but I would take one further step.
In my opinion the reasons supporting the conclusion that the Due Process Clause of the
Fourteenth Amendment entitles *60 the defendant in a criminal case to representation by
counsel apply with equal force to a case of this kind. 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.
U.S.N.C.,1981.

M.L.B. v. S. L. J., individually and as next friend of the minor children,

S. L. J. and M. L. J., et ux.

519 U.S. 102 (1996)

U.S. Supreme Court
December 16, 1996

Justice GINSBURG delivered the opinion of the Court.

[P] By order of a Mississippi Chancery Court, petitioner M.L.B.’s parental rights

to her two minor children were forever terminated. M.L.B. sought to appeal from the
termination decree, but Mississippi required that she pay in advance record preparation
fees estimated at $2,352.36. Because M.L.B. lacked funds to pay the fees, her appeal was
dismissed.
[I, H] Urging that the size of her pocketbook should not be dispositive when “an
interest far more precious than any property right” is at stake, Santosky v. Kramer, 455
U.S. 745, 758 -759 (1982), M.L.B. tenders this question, which we agreed to hear and
decide: May a State, consistent with the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, condition appeals from trial court decrees terminating parental
rights on the affected parent’s ability to pay record preparation fees? We hold that, just
as a State may not block an indigent petty offender’s access to an appeal afforded others,
see Mayer v. Chicago, 404 U.S. 189, 195 -196 (1971), so Mississippi may not deny
M.L.B., because of her poverty, appellate review of the sufficiency of the evidence on
which the trial court found her unfit to remain a parent.

[F] Petitioner M.L.B. and respondent S.L.J. are, respectively, the biological
mother and father of two children, a boy born in April 1985, and a girl born in February
1987. In June 1992, after a marriage that endured nearly eight years, M.L.B. and S.L.J.
were divorced. The children remained in their father’s custody, as M.L.B. and S.L.J. had
agreed at the time of the divorce.
[P] S.L.J. married respondent J.P.J. in September 1992. In November of the
following year, S.L.J. and J.P.J. filed suit in Chancery Court in Mississippi, seeking to
terminate the parental rights of M.L.B. and to gain court approval for adoption of the
children by their stepmother, J.P.J. The complaint alleged that M.L.B. had not
maintained reasonable visitation and was in arrears on child support payments. M.L.B.
counterclaimed, seeking primary custody of both children and contending that S.L.J. had
not permitted her reasonable visitation, despite a provision in the divorce decree that he
do so.
After taking evidence on August 18, November 2, and December 12, 1994, the
Chancellor, in a decree filed December 14, 1994, terminated all parental rights of the
natural mother, approved the adoption, and ordered that J. P.J., the adopting parent, be
shown as the mother of the children on their birth certificates. Twice reciting a segment
of the governing Mississippi statute, Miss. Code Ann. Section(s) 93-15-103(3)(e) (1994),
the Chancellor declared that there had been a “substantial erosion of the relationship
between the natural mother, [M. L. B.], and the minor children,” which had been caused
“at least in part by [M.L.B.’s] serious neglect, abuse, prolonged and unreasonable
absence or unreasonable failure to visit or communicate with her minor children.” App.
to Pet. for Cert. 9, 10. 
The Chancellor stated, without elaboration, that the natural father and his second
wife had met their burden of proof by “clear and convincing evidence.” Id., at 10.
Nothing in the Chancellor’s order describes the evidence, however, or otherwise reveals
precisely why M.L.B. was decreed, forevermore, a stranger to her children.
In January 1995, M.L.B. filed a timely appeal and paid the $100 filing fee. The
Clerk of the Chancery Court, several days later, estimated the costs for preparing and
transmitting the record: $1,900 for the transcript (950 pages at $2 per page); $438 for
other documents in the record (219 pages at $2 per page); $4.36 for binders; and $10 for
mailing. Id., at 15.
Mississippi grants civil litigants a right to appeal, but conditions that right on
prepayment of costs. Miss. Code Ann. Section(s) 11-51-3, 11-51-29 (Supp. 1996).
Relevant portions of a transcript must be ordered, and its preparation costs advanced by
the appellant, if the appellant “intends to urge on appeal,” as M.L.B. did, “that a finding
or conclusion is unsupported by the evidence or is contrary to the evidence.” Miss. Rule
of App. Proc. 10(b)(2) (1995); see also Miss. Code Ann. Section(s) 11-51-29 (Supp.
1996).
Unable to pay $2,352.36, M.L.B. sought leave to appeal in forma pauperis. The
Supreme Court of Mississippi denied her application in August 1995. Under its
precedent, the court said, “[t]he right to proceed in forma pauperis in civil cases exists
only at the trial level.” App. to Pet. for Cert. 3. 2
***

IV

Choices about marriage, family life, and the upbringing of children are among
associational rights this Court has ranked as “of basic importance in our society,” Boddie,
401 U.S., at 376 , rights sheltered by the Fourteenth Amendment against the State’s
unwarranted usurpation, disregard, or disrespect... M.L.B.’s case, involving the State’s
authority to sever permanently a parent-child bond, demands the close consideration the
Court has long required when a family association so undeniably important is at stake.
We approach M.L.B.’s petition mindful of the gravity of the sanction imposed on her in
light of two prior decisions most immediately in point: Lassiter v. Department of Social
Servs. of Durham Cty., 452 U.S. 18 (1981), and Santosky v. Kramer, 455 U.S. 745
(1982).
Lassiter concerned the appointment of counsel for indigent persons seeking to defend
against the State’s termination of their parental status. The Court held that appointed
counsel was not routinely required to assure a fair adjudication; instead, a case-by-case
determination of the need for counsel would suffice, an assessment to be made “in the
first instance by the trial court, subject . . . to appellate review.” 452 U.S., at 32 .
For probation-revocation hearings where loss of conditional liberty is at issue, the
Lassiter Court observed, our precedent is not doctrinaire; due process is provided, we
have held, when the decision whether counsel should be appointed is made on a case-by-
case basis…. Parental termination cases, the Lassiter Court concluded, are most
appropriately ranked with probation-revocation hearings: While the Court declined to
recognize an automatic right to appointed counsel, it said that an appointment would be
due when warranted by the character and difficulty of the case. See Lassiter, 452 U.S., at
31 -32. 
Significant to the disposition of M.L.B.’s case, the Lassiter Court considered it
“plain . . . that a parent’s desire for and right to ‘the companionship, care, custody, and
management of his or her children’ is an important interest,” one that “ ‘undeniably
warrants deference and, absent a powerful countervailing interest, protection.’” Id., at 27
(quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). The object of the proceeding is
“not simply to infringe upon [the parent’s] interest,” the Court recognized, “but to end it”;
thus, a decision against the parent “work[s] a unique kind of deprivation.” Lassiter, 452
U.S., at 27 . For that reason, “[a] parent’s interest in the accuracy and justice of the
decision . . . is . . . a commanding one.” Ibid.; see also id., at 39 (Blackmun, J.,
dissenting) (“A termination of parental rights is both total and irrevocable. Unlike other
custody proceedings, it leaves the parent with no right to visit or communicate with the
child . . . .” (footnote omitted)).
Santosky held that a “clear and convincing” proof standard is constitutionally required in
parental termination proceedings. 455 U.S., at 769 -770. In so ruling, the Court again
emphasized that a termination decree is “final and irrevocable.” Id., at 759 (emphasis in
original). “Few forms of state action,” the Court said, “are both so severe and so
irreversible.” Ibid. As in Lassiter, the Court characterized the parent’s interest as
“commanding,” indeed, “far more precious than any property right.” 455 U.S., at 758 -
759.
Although both Lassiter and Santosky yielded divided opinions, the Court was
unanimously of the view that “the interest of parents in their relationship with their
children is sufficiently fundamental to come within the finite class of liberty interests
protected by the Fourteenth Amendment.” 455 U.S., at 774 (Rehnquist, J., dissenting). It
was also the Court’s unanimous view that “[f]ew consequences of judicial action are so
grave as the severance of natural family ties.” Id., at 787.
 V

Guided by this Court’s precedent on an indigent’s access to judicial processes in criminal

and civil cases, and on proceedings to terminate parental status, we turn to the
classification question this case presents: Does the Fourteenth Amendment require
Mississippi to accord M.L.B. access to an appeal-available but for her inability to
advance required costs-before she is forever branded unfit for affiliation with her
children? Respondents urge us to classify M.L.B.’s case with the generality of civil
cases, in which indigent persons have no constitutional right to proceed in forma
pauperis…. M.L.B., on the other hand, maintains that the accusatory state action she is
trying to fend off is barely distinguishable from criminal condemnation in view of the
magnitude and permanence of the loss she faces…. For the purpose at hand, M.L.B. asks
us to treat her parental termination appeal as we have treated petty offense appeals; she
urges us to adhere to the reasoning in Mayer v. Chicago, 404 U.S. 189 (1971), see supra,
at 6-7, and rule that Mississippi may not withhold the transcript M.L.B. needs to gain
review of the order ending her parental status. Guided by Lassiter and Santosky, and
other decisions acknowledging the primacy of the parent-child relationship, e.g., Stanley
v. Illinois, 405 U.S., at 651 ; Meyer v. Nebraska, 262 U. S., at 399, we agree that the
Mayer decision points to the disposition proper in this case.
We observe first that the Court’s decisions concerning access to judicial processes,
commencing with Griffin, [351 U.S. 12 (1956),] and running through Mayer, reflect both
equal protection and due process concerns…. The equal protection concern relates to the
legitimacy of fencing out would-be appellants based solely on their inability to pay core
costs…. A “precise rationale” has not been composed, [Ross v. Moffitt, 417 U.S. 600,
608 (1974)], because cases of this order “cannot be resolved by resort to easy slogans or
pigeonhole analysis,” Bearden v. Georgia, 461 U.S. 660 666 (1983). Nevertheless,
“[m]ost decisions in this area,” we have recognized, “res[t] on an equal protection
framework,” id., at 665, as M.L.B.’s plea heavily does, for, as we earlier observed, see
supra, at 5, due process does not independently require that the State provide a right to
appeal. We place this case within the framework established by our past decisions in this
area. In line with those decisions, we inspect the character and intensity of the individual
interest at stake, on the one hand, and the State’s justification for its exaction, on the
other. See Bearden, 461 U.S., at 666 -667.
We now focus on Mayer and the considerations linking that decision to M.L.B.’s case.
Mayer, described supra, at 6-7, applied Griffin to a petty offender, fined a total of $500,
who sought to appeal from the trial court’s judgment. See Mayer, 404 U.S., at 190 . An
“impecunious medical student,” id., at 197, the defendant in Mayer could not pay for a
transcript. We held that the State must afford him a record complete enough to allow fair
appellate consideration of his claims. The defendant in Mayer faced no term of
confinement, but the conviction, we observed, could affect his professional prospects
and, possibly, even bar him from the practice of medicine. Ibid. The State’s pocketbook
interest in advance payment for a transcript, we concluded, was unimpressive when
measured against the stakes for the defendant. Ibid.
[1] Similarly here, the stakes for petitioner M.L.B.- forced dissolution of her parental
rights-are large, “ ‘more substantial than mere loss of money.’ “ Santosky, 455 U.S., at
756 (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)). In contrast to loss of
custody, which does not sever the parent-child bond, parental status termination is
“irretrievabl[y] destructi[ve]” of the most fundamental family relationship. Santosky,
455 U.S., at 753 . [2] And the risk of error, Mississippi’s experience shows, is
considerable….
Consistent with Santosky, Mississippi has, by statute, adopted a “clear and convincing
proof” standard for parental status termination cases. Miss. Code Ann. Section(s) 93-15-
109 (Supp. 1996). Nevertheless, the Chancellor’s termination order in this case simply
recites statutory language; it describes no evidence, and otherwise details no reasons for
finding M.L.B. “clear[ly] and convincing[ly]” unfit to be a parent. See supra, at 2-3.
Only a transcript can reveal to judicial minds other than the Chancellor’s the sufficiency,
or insufficiency, of the evidence to support his stern judgment.
[3] The countervailing government interest, as in Mayer, is financial. Mississippi urges,
as the justification for its appeal cost prepayment requirement, the State’s legitimate
interest in offsetting the costs of its court system…. [4] But in the tightly circumscribed
category of parental status termination cases, appeals are few, and not likely to impose an
undue burden on the State…. Mississippi’s experience with criminal appeals is
noteworthy in this regard. In 1995, the Mississippi Court of Appeals disposed of 298
first appeals from criminal convictions, Sup. Ct. of Miss. Ann. Rep. 42 (1995); of those
appeals, only seven were appeals from misdemeanor convictions, ibid., notwithstanding
our holding in Mayer requiring in forma pauperis transcript access in petty offense
prosecutions. 
In States providing criminal appeals, as we earlier recounted, an indigent’s access to
appeal, through a transcript of relevant trial proceedings, is secure under our precedent….
That equal access right holds for petty offenses as well as for felonies. But counsel at
state expense, we have held, is a constitutional requirement, even in the first instance,
only when the defendant faces time in confinement. See supra, at 8. When deprivation
of parental status is at stake, however, counsel is sometimes part of the process that is
due. See Lassiter, 452 U.S., at 31 -32. It would be anomalous to recognize a right to a
transcript needed to appeal a misdemeanor conviction-though trial counsel may be flatly
denied-but hold, at the same time, that a transcript need not be prepared for M.L.B.-
though were her defense sufficiently complex, State-paid counsel, as Lassiter instructs,
would be designated for her.
In aligning M.L.B.’s case and Mayer-parental status termination decrees and criminal
convictions that carry no jail time-for appeal access purposes, we do not question the
general rule, stated in Ortwein, that fee requirements ordinarily are examined only for
rationality…. The State’s need for revenue to offset costs, in the mine run of cases,
satisfies the rationality requirement…. States are not forced by the Constitution to adjust
all tolls to account for “disparity in material circumstances.” Griffin, 351 U.S., at 23
(Frankfurter, J., concurring in judgment).
[5] But our cases solidly establish two exceptions to that general rule. The basic right to
participate in political processes as voters and candidates cannot be limited to those who
can pay for a license. Nor may access to judicial processes in cases criminal or “quasi
criminal in nature,” Mayer, 404 U.S., at 196 (citation and internal quotation marks
omitted), turn on ability to pay. In accord with the substance and sense of our decisions
in Lassiter and Santosky, see supra, at 12-15, we place decrees forever terminating
parental rights in the category of cases in which the State may not “bolt the door to equal
justice,” Griffin, 351 U.S., at 24 (Frankfurter, J., concurring in judgment)….

VI

In numerous cases, respondents point out, the Court has held that government “need not
provide funds so that people can exercise even fundamental rights.” Brief for
Respondents 12; see, e.g., Lyng v. Automobile Workers, 485 U.S. 360, 363 , n. 2, 370-
374 (1988) (rejecting equal protection attack on amendment to Food Stamp Act providing
that no household could become eligible for benefits while a household member was on
strike); Regan v. Taxation with Representation of Wash., 461 U.S. 540, 543 -544, 550-
551 (1983) (rejecting nonprofit organization’s claims of free speech and equal protection
rights to receive tax deductible contributions to support its lobbying activity); Harris v.
McRae, 448 U.S. 297, 321 -326 (1980) (Medicaid funding need not be provided for
women seeking medically necessary abortions)….
[6] Complainants in the cases on which respondents rely sought state aid to subsidize
their privately initiated action or to alleviate the consequences of differences in economic
circumstances that existed apart from state action. M.L.B.’s complaint is of a different
order. She is endeavoring to defend against the State’s destruction of her family bonds,
and to resist the brand associated with a parental unfitness adjudication. Like a defendant
resisting criminal conviction, she seeks to be spared from the State’s devastatingly
adverse action. That is the very reason we have paired her case with Mayer, not with
Ortwein or Kras….
Respondents also suggest that Washington v. Davis, 426 U.S. 229 (1976), is instructive
because it rejects the notion “that a law, neutral on its face and serving ends otherwise
within the power of government to pursue, is invalid under the Equal Protection Clause
simply because it may affect a greater proportion of one race than of another,” id., at 242.
“This must be all the more true,” respondents urge, “with respect to an allegedly disparate
impact on a class [here, the poor] that, unlike race, is not suspect.” Brief for Respondent
31.
Washington v. Davis, however, does not have the sweeping effect respondents attribute
to it. That case involved a verbal skill test administered to prospective Government
employees. “[A] far greater proportion of blacks-four times as many-failed the test than
did whites.” 426 U.S., at 237 . But the successful test takers included members of both
races, as did the unsuccessful examinees. Disproportionate impact, standing alone, the
Court held, was insufficient to prove unconstitutional racial discrimination. Were it
otherwise, a host of laws would be called into question, “a whole range of tax, welfare,
public service, regulatory, and licensing statutes that may be more burdensome to the
poor and to the average black than to the more affluent white.” Id., at 248.
To comprehend the difference between the case at hand and cases controlled by
Washington v. Davis, one need look no further than this Court’s opinion in Williams v.
Illinois, 399 U.S. 235 (1970). Williams held unconstitutional an Illinois law under which
an indigent offender could be continued in confinement beyond the maximum prison
term specified by statute if his indigency prevented him from satisfying the monetary
portion of the sentence. The Court described that law as “‘nondiscriminatory on its
face,’” and recalled that the law found incompatible with the Constitution in Griffin had
been so characterized. 399 U.S., at 242 (quoting Griffin, 351 U.S., at 17 , n. 11)…. But
the Williams Court went on to explain that “the Illinois statute in operative effect exposes
only indigents to the risk of imprisonment beyond the statutory maximum.” Williams,
399 U.S., at 242 (emphasis added). Sanctions of the Williams genre, like the Mississippi
prescription here at issue, are not merely disproportionate in impact. Rather, they are
wholly contingent on one’s ability to pay, and thus “visi[t] different consequences on two
categories of persons,” ibid.; they apply to all indigents and do not reach anyone outside
that class.
In sum, under respondents’ reading of Washington v. Davis, our overruling of the Griffin
line of cases would be two decades overdue. It suffices to point out that this Court has
not so conceived the meaning and effect of our 1976 “disproportionate impact”
precedent…. 
Respondents and the dissenters urge that we will open floodgates if we do not rigidly
restrict Griffin to cases typed “criminal.” See post, at 14-17 (Thomas, J., dissenting);
Brief for Respondents 27-28. But we have repeatedly noticed what sets parental status
termination decrees apart from mine run civil actions, even from other domestic relations
matters such as divorce, paternity, and child custody…. To recapitulate, termination
decrees “wor[k] a unique kind of deprivation.” Lassiter, 452 U.S., at 27 . In contrast to
matters modifiable at the parties’ will or based on changed circumstances, termination
adjudications involve the awesome authority of the State “to destroy permanently all
legal recognition of the parental relationship.” Rivera, 483 U.S., at 580 . Our Lassiter
and Santosky decisions, recognizing that parental termination decrees are among the most
severe forms of state action, Santosky, 455 U.S., at 759 , have not served as precedent in
other areas…. We are therefore satisfied that the label “civil” should not entice us to
leave undisturbed the Mississippi courts’ disposition of this case….
For the reasons stated, we hold that Mississippi may not withhold from M.L.B. “a ‘record
of sufficient completeness’ to permit proper [appellate] consideration of [her] claims.”
Mayer, 404 U.S., at 198 . Accordingly, we reverse the judgment of the Supreme Court of
Mississippi and remand the case for further proceedings not inconsistent with this
opinion.
It is so ordered.

Justice KENNEDY, concurring in the judgment.

The Court gives a most careful and comprehensive recitation of the precedents from
Griffin v. Illinois, 351 U.S. 12 (1956), through Mayer v. Chicago, 404 U.S. 189 (1971),
and beyond, a line of decisions which invokes both equal protection and due process
principles. The duality, as the Court notes, stems from Griffin itself, which produced no
opinion for the Court and invoked strands of both constitutional doctrines.
In my view the cases most on point, and the ones which persuade me we must reverse the
judgment now reviewed, are the decisions addressing procedures involving the rights and
privileges inherent in family and personal relations. These are Boddie v. Connecticut,
401 U.S. 371 (1971); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S.
18 (1981); and Santosky v. Kramer, 455 U.S. 745 (1982), all cases resting exclusively
upon the Due Process Clause. Here, due process is quite a sufficient basis for our
holding.
I acknowledge the authorities do not hold that an appeal is required, even in a criminal
case; but given the existing appellate structure in Mississippi, the realities of the litigation
process, and the fundamental interests at stake in this particular proceeding, the State may
not erect a bar in the form of transcript and filing costs beyond this petitioner’s means.
The Court well describes the fundamental interests the petitioner has in ensuring that the
order which terminated all her parental ties was based upon a fair assessment of the facts
and the law. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). With these
observations, I concur in the judgment.

Chief Justice REHNQUIST, dissenting.

I join all but Part II of Justice Thomas’ dissenting opinion. For the reasons stated in that
opinion, I would not extend the Griffin-Mayer line of cases to invalidate Mississippi’s
refusal to pay for petitioner’s transcript on appeal in this case.

Justice Thomas, with whom Justice Scalia joins, and with whom The Chief Justice joins
except as to Part II, dissenting.

Today the majority holds that the Fourteenth Amendment requires Mississippi to afford
petitioner a free transcript because her civil case involves a “fundamental” right. The
majority seeks to limit the reach of its holding to the type of case we confront here, one
involving the termination of parental rights. I do not think, however, that the new-found
constitutional right to free transcripts in civil appeals can be effectively restricted to this
case. The inevitable consequence will be greater demands on the States to provide free
assistance to would-be appellants in all manner of civil cases involving interests that
cannot, based on the test established by the majority, be distinguished from the
admittedly important interest at issue here. The cases on which the majority relies,
primarily cases requiring appellate assistance for indigent criminal defendants, were
questionable when decided, and have, in my view, been undermined since. Even
accepting those cases, however, I am of the view that the majority takes them too far. I
therefore dissent.

Petitioner requests relief under both the Due Process and Equal Protection Clauses,
though she does not specify how either clause affords it. The majority accedes to
petitioner’s request. But, carrying forward the ambiguity in the cases on which it relies,
the majority does not specify the source of the relief it grants…. I therefore analyze
petitioner’s claim under both the Due Process and Equal Protection Clauses. If neither
Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no
amalgam of the two does.

We have indicated on several occasions in this century that the interest of parents in
maintaining their relationships with their children is “an important interest that
‘undeniably warrants deference and, absent a powerful countervailing interest,
protection.’” Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 27
(1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Assuming that
petitioner’s interest may not be impinged without due process of law, I do not think that
the Due Process Clause requires the result the majority reaches.
Petitioner’s largest obstacle to a due process appeal gratis is our oft-affirmed view that
due process does not oblige States to provide for any appeal, even from a criminal
conviction…. To be sure, we have indicated, beginning with Griffin v. Illinois, that
where an appeal is provided, States may be prohibited from erecting barriers to those
unable to pay. As I described last Term in my concurring opinion in Lewis v. Casey, 518
U.S. 804 (1996), however, I believe that these cases are best understood as grounded in
equal protection analysis, and thus make no inroads on our longstanding rule that States
that accord due process in a hearing-level tribunal need not provide further review.
…Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural
protections above and beyond what our parental termination cases have required. She
received both notice and a hearing before a neutral, legally trained decisionmaker. She
was represented by counsel-even though due process does not in every case require the
appointment of counsel. See Lassiter, supra, at 24. Through her attorney, petitioner was
able to confront the evidence and witnesses against her. And, in accordance with
Santosky v. Kramer, 455 U.S. 745, 769 (1982), the Chancery Court was required to find
that petitioner’s parental unfitness was proved by clear and convincing evidence. Indeed,
petitioner points to no hearing-level process to which she was entitled that she did not
receive.
Given the many procedural protections afforded petitioner, I have little difficulty
concluding that “due process has . . . been accorded in the tribunal of first instance.”
Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 74, 80 (1930)…. There
seems, then, no place in the Due Process Clause-certainly as an original matter, and even
as construed by this Court-for the constitutional “right” crafted by the majority today. I
turn now to the other possible source: The Equal Protection Clause.

As I stated last Term in Lewis v. Casey, I do not think that the equal protection theory
underlying the Griffin line of cases remains viable.
***.
The lesson of Davis is that the Equal Protection Clause shields only against purposeful
discrimination: A disparate impact, even upon members of a racial minority, the
classification of which we have been most suspect, does not violate equal protection…
Since Davis, we have regularly required more of an equal protection claimant than a
showing that state action has a harsher effect on him or her than on others….
I see no principled difference between a facially neutral rule that serves in some cases to
prevent persons from availing themselves of state employment, or a state-funded
education, or a state-funded abortion-each of which the State may, but is not required to,
provide-and a facially neutral rule that prevents a person from taking an appeal that is
available only because the State chooses to provide it.
***
In Davis, among other cases, we began to recognize the potential mischief of a disparate
impact theory writ large, and endeavored to contain it. In this case, I would continue that
enterprise. Mississippi’s requirement of prepaid transcripts in civil appeals seeking to
contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no
classification. The transcript rule reasonably obliges would-be appellants to bear the
costs of availing themselves of a service that the State chooses, but is not constitutionally
required, to provide. Any adverse impact that the transcript requirement has on any
person seeking to appeal arises not out of the State’s action, but out of factors entirely
unrelated to it.

II

[1] If this case squarely presented the question, I would be inclined to vote to overrule
Griffin and its progeny. Even were I convinced that the cases on which the majority
today relies ought to be retained, I could not agree with the majority’s extension of them.
The interest at stake in this case differs in several important respects from that at issue in
cases such as Griffin. Petitioner’s interest in maintaining a relationship with her children
is the subject of a civil, not criminal, action. While certain civil suits may tend at the
margin toward criminal cases, and criminal cases may likewise drift toward civil suits,
the basic distinction between the two finds root in the Constitution and has largely
retained its vitality in our jurisprudence. In dissent in Boddie v. Connecticut, Justice
Black stated that “in Griffin the Court studiously and carefully refrained from saying one
word or one sentence suggesting that the rule there announced to control rights of
criminal defendants would control in the quite different field of civil cases.” 401 U.S., at
390 . The Constitution provides for a series of protections of the unadorned liberty
interest at stake in criminal proceedings. These express protections include the Fifth
Amendment’s guarantee of grand jury indictment, and protection against double jeopardy
and self-incrimination; the Sixth Amendment’s guarantees of a speedy and public jury
trial, of the ability to confront witnesses, and of compulsory process and assistance of
counsel; and the Eighth Amendment’s protections against excessive bail and fines, and
against cruel and unusual punishment. This Court has given content to these textual
protections, and has identified others contained in the Due Process Clause. These
protections are not available to the typical civil litigant. Even where the interest in a civil
suit has been labeled “fundamental,” as with the interest in parental termination suits, the
protections extended pale by comparison. A party whose parental rights are subject to
termination is entitled to appointed counsel, but only in certain circumstances. See
Lassiter, 452 U.S., at 31 -32. His or her rights cannot be terminated unless the evidence
meets a standard higher than the preponderance standard applied in the typical civil suit,
but the standard is still lower than that required before a guilty verdict. See Santosky v.
Kramer, 455 U.S., at 769 -770.
That said, it is true enough that civil and criminal cases do not always stand in bold relief
to one another. Mayer v. Chicago, 404 U.S. 189 (1971), marks a particularly
discomfiting point along the border between the civil and criminal areas. Based on
Griffin, the Court determined there that an indigent defendant had a constitutional right to
a free transcript in aid of appealing his conviction for violating city ordinances, which
resulted in a $500 fine and no imprisonment. In Scott v. Illinois, 440 U.S. 367 (1979),
we concluded that an indigent defendant charged with a crime that was not punishable by
imprisonment was not entitled to appointed counsel. And yet, in Lassiter, supra, we held
that, in some cases, due process required provision of assistance of counsel before the
termination of parental rights. The assertion that civil litigants have no right to the free
transcripts that all criminal defendants enjoy is difficult to sustain in the face of our
holding that some civil litigants are entitled to the assistance of counsel to which some
criminal defendants are not. It is at this unsettled (and unsettling) place that the majority
lays the foundation of its holding. See ante, at 16-21. The majority’s solution to the
“anamol[y]” that a misdemeanant receives a free transcript but no trial counsel, while a
parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an
extension of Mayer. I would answer the conundrum differently: Even if the Griffin line
were sound, Mayer was an unjustified extension that should be limited to its facts, if not
overruled.
Unlike in Scott and Lassiter, the Court gave short shrift in Mayer to the distinction, as old
as our Constitution, between crimes punishable by imprisonment and crimes punishable
merely by fines. See Lassiter, supra, at 26-27; Scott, supra, at 373. Even though specific
text-based constitutional protections have been withheld in cases not involving the
prospect of imprisonment, the Court found the difference of no moment in Mayer. The
Court reasoned that “[t]he invidiousness of the discrimination that exists when criminal
procedures are made available only to those who can pay is not erased by any differences
in the sentences that may be imposed.” 404 U.S., at 197 . We reap today what we sowed
then. If requiring payment for procedures (e.g., appeals) that are not themselves required
is invidious discrimination no matter what sentence results, it is difficult to imagine why
it is not invidious discrimination no matter what results and no matter whether the
procedures involve a criminal or civil case. See supra, at 7. To me this points up the
difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however,
and in the absence of any obvious limiting principle, I would restrict it to the criminal
appeals to which its authors, see Boddie v. Connecticut, 401 U.S., at 389 (Black, J.,
dissenting), sought to limit it.
The distinction between criminal and civil cases-if blurred at the margins-has persisted
throughout the law. The distinction that the majority seeks to draw between the case we
confront today and the other civil cases that we will surely face tomorrow is far more
ephemeral. If all that is required to trigger the right to a free appellate transcript is that
the interest at stake appear to us to be as fundamental as the interest of a convicted
misdemeanant, several kinds of civil suits involving interests that seem fundamental
enough leap to mind. Will the Court, for example, now extend the right to a free
transcript to an indigent seeking to appeal the outcome of a paternity suit? To those who
wish to appeal custody determinations? How about persons against whom divorce
decrees are entered? Civil suits that arise out of challenges to zoning ordinances with an
impact on families? Why not foreclosure actions-or at least foreclosure actions seeking
to oust persons from their homes of many years?
The majority seeks to provide assurances that its holding will not extend beyond parental
termination suits. The holdings of Santosky and Lassiter-both of which involved parental
termination-have not, we are told, been applied to other areas of law. Ante, at 24. This is
not comforting. Both Santosky and Lassiter are cases that determined the requirements
of due process (not equal protection) in the parental-rights-termination area. As the Court
has said countless times, the requirements of due process vary considerably with the
interest involved and the action to which it is subject. It is little wonder, then, that the
specific due process requirements for one sort of action are not readily transferable to
others. I have my doubts that today’s opinion will be so confined. In the first place, it is
not clear whether it is an equal protection or a due process opinion. Moreover, the
principle on which it appears to rest hardly seems capable of stemming the tide.
Petitioner is permitted a free appellate transcript because the interest that underlies her
civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and
unknown professional difficulties in Mayer v. Illinois. Under the rule announced today, I
do not see how a civil litigant could constitutionally be denied a free transcript in any
case that involves an interest that is arguably as important as the interest in Mayer (which
would appear to include all the types of cases that I mention above, and perhaps many
others). What is more, it must be remembered that Griffin did not merely invent the free
transcript right for criminal appellants; it was also the launching pad for the discovery of
a host of other rights…. I fear that the growth of Griffin in the criminal area may be
mirrored in the civil area.
In brushing aside the distinction between criminal and civil cases-the distinction that has
constrained Griffin for 40 years-the Court has eliminated the last meaningful limit on the
free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the
Griffin line, has sprung the M.L.B. line, and I have no confidence that the majority’s
assurances that the line starts and ends with this case will hold true.

III

As the majority points out, many States already provide for in forma pauperis civil
appeals, with some making special allowances for parental termination cases. I do not
dispute the wisdom or charity of these heretofore voluntary allocations of the various
States’ scarce resources. I agree that, for many-if not most-parents, the termination of
their right to raise their children would be an exaction more dear than any other. [2] It
seems perfectly reasonable for States to choose to provide extraconstitutional procedures
to ensure that any such termination is undertaken with care. I do not agree, however, that
a State that has taken the step, not required by the Constitution, of permitting appeals
from termination decisions somehow violates the Constitution when it charges reasonable
fees of all would-be appellants. I respectfully dissent.

Footnotes
[ Footnote 2 ] In fact, Mississippi, by statute, provides for coverage of transcript fees and
other costs for indigents in civil commitment appeals. Miss. Code Ann. Section(s) 41-21-
83 (Supp. 1996) (record on appeal shall include transcript of commitment hearing);
Section(s) 41-21-85 (1972) (all costs of hearing or appeal shall be borne by state board of
mental health when patient is indigent).