519 U.S. 102 (1996)

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.

No. 95-853.

United States Supreme Court.

Argued October 7, 1996. Decided December 16, 1996. CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

*104 *104 *105 *106 Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment, post, p. 128. Rehnquist, C. J., filed a dissenting opinion, post, p. 129. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Rehnquist, C. J., joined, except as to Part II, post, p. 129.

Robert B. McDuff argued the cause for petitioner. With him on the briefs were Danny Lampley and Steven R. Shapiro.

Rickey T. Moore, Special Assistant Attorney General of Mississippi, argued the cause for respondents. With him on the brief was Mike Moore, Attorney General.^[*]

Justice Ginsburg, delivered the opinion of the Court.

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.

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, *107 758-759 (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.

I

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.

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 *108 their birth certificates. Twice reciting a segment of the governing Mississippi statute, Miss. Code Ann. § 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.^[1]

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. §§ 11-51-3, 11-51-29 (Supp. 1996). Relevant portions of a transcript must be ordered, and its preparation costs advanced *109 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. § 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]

M. L. B. had urged in Chancery Court and in the Supreme Court of Mississippi, and now urges in this Court, that

"where the State's judicial processes are invoked to secure so severe an alteration of a litigant's fundamental rights—the termination of the parental relationship with one's natural child—basic notions of fairness [and] of equal protection under the law, . . . guaranteed by [the Mississippi and Federal Constitutions], require that a person be afforded the right of appellate review though one is unable to pay the costs of such review in advance." Id., at 18.^[3]

*110 II

Courts have confronted, in diverse settings, the "age-old problem" of "[p]roviding equal justice for poor and rich, weak and powerful alike." Griffin v. Illinois, 351 U. S. 12, 16 (1956). Concerning access to appeal in general, and transcripts needed to pursue appeals in particular, Griffin is the foundation case.

Griffin involved an Illinois rule that effectively conditioned thoroughgoing appeals from criminal convictions on the defendant's procurement of a transcript of trial proceedings. See id. , at 13-14, and nn. 2, 3 (noting, inter alia, that "mandatory record," which an indigent defendant could obtain free of charge, did not afford the defendant an opportunity to seek review of trial errors). Indigent defendants, other than those sentenced to death, were not excepted from the rule, so in most cases, defendants without means to pay for a transcript had no access to appellate review at all. Although the Federal Constitution guarantees no right to appellate review, id. , at 18, once a State affords that right, Griffin held, the State may not "bolt the door to equal justice," id. , at 24 (Frankfurter, J., concurring in judgment).

The plurality in Griffin recognized "the importance of appellate review to a correct adjudication of guilt or innocence." Id. , at 18. "[T]o deny adequate review to the poor," the plurality observed, "means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside." Id. , at 19. Judging the Illinois rule inconsonant with the Fourteenth Amendment, the Griffin plurality drew support from the Due Process and Equal Protection Clauses. Id. , at 13, 18.

Justice Frankfurter, concurring in the judgment in Griffin, emphasized and explained the decision's equal protection underpinning:

"Of course a State need not equalize economic conditions. . . . But when a State deems it wise and just that *111 convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review . . . ." Id., at 23.

See also Ross v. Moffitt, 417 U. S. 600, 607 (1974) (Griffin and succeeding decisions "stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons."). Summarizing the Griffin line of decisions regarding an indigent defendant's access to appellate review of a conviction,^[4] we said in Rinaldi v. Yeager, 384 U. S. 305, 310 (1966): "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts."

Of prime relevance to the question presented by M. L. B.'s petition, Griffin `s principle has not been confined to cases in which imprisonment is at stake. The key case is Mayer v. Chicago, 404 U. S. 189 (1971). Mayer involved an indigent defendant convicted on nonfelony charges of violating two city ordinances. Fined $250 for each offense, the defendant petitioned for a transcript to support his appeal. He alleged prosecutorial misconduct and insufficient evidence to convict. The State provided free transcripts for indigent appellants *112 in felony cases only. We declined to limit Griffin to cases in which the defendant faced incarceration. "The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay," the Court said in Mayer, "is not erased by any differences in the sentences that may be imposed." 404 U. S., at 197. Petty offenses could entail serious collateral consequences, the Mayer Court noted. Ibid. The Griffin principle, Mayer underscored, "is a flat prohibition," 404 U. S., at 196, against "making access to appellate processes from even [the State's] most inferior courts depend upon the [convicted] defendant's ability to pay," id. , at 197. An impecunious party, the Court ruled, whether found guilty of a felony or conduct only "quasi criminal in nature," id. , at 196, "cannot be denied a record of sufficient completeness to permit proper [appellate] consideration of his claims," id. , at 198 (internal quotation marks omitted).^[5]

In contrast to the "flat prohibition" of "bolted doors" that the Griffin line of cases securely established, the right to *113 counsel at state expense, as delineated in our decisions, is less encompassing. A State must provide trial counsel for an indigent defendant charged with a felony, Gideon v. Wainwright, 372 U. S. 335, 339 (1963), but that right does not extend to nonfelony trials if no term of imprisonment is actually imposed, Scott v. Illinois, 440 U. S. 367, 373-374 (1979). A State's obligation to provide appellate counsel to poor defendants faced with incarceration applies to appeals of right. Douglas v. California, 372 U. S. 353, 357 (1963). In Ross v. Moffitt, however, we held that neither the Due Process Clause nor the Equal Protection Clause requires a State to provide counsel at state expense to an indigent prisoner pursuing a discretionary appeal in the state system or petitioning for review in this Court. 417 U. S., at 610, 612, 616-618.

III

We have also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party's ability to pay court fees. In Boddie v. Connecticut, 401 U. S. 371 (1971), we held that the State could not deny a divorce to a married couple based on their inability to pay approximately $60 in court costs. Crucial to our decision in Boddie was the fundamental interest at stake. "[G]iven the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship," we said, due process "prohibit[s] a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." Id., at 374; see also Little v. Streater, 452 U. S. 1, 13-17 (1981) (State must pay for blood grouping tests sought by an indigent defendant to enable him to contest a paternity suit).

Soon after Boddie, in Lindsey v. Normet, 405 U. S. 56 (1972), the Court confronted a double-bond requirement imposed by Oregon law only on tenants seeking to appeal adverse *114 decisions in eviction actions. We referred first to precedent recognizing that, "if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review." Id., at 77. We next stated, however, that "[w]hen an appeal is afforded, . . . it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause." Ibid. Oregon's double-bond requirement failed equal protection measurement, we concluded, because it raised a substantial barrier to appeal for a particular class of litigants—tenants facing eviction—a barrier "faced by no other civil litigant in Oregon." Id. , at 79. The Court pointed out in Lindsey that the classification there at issue disadvantaged nonindigent as well as indigent appellants, ibid.; the Lindsey decision, therefore, does not guide our inquiry here.

The following year, in United States v. Kras, 409 U. S. 434 (1973), the Court clarified that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule. Kras concerned fees, totaling $50, required to secure a discharge in bankruptcy. Id. , at 436. The Court recalled in Kras that "[o]n many occasions we have recognized the fundamental importance . . . under our Constitution" of "the associational interests that surround the establishment and dissolution of th[e] [marital] relationship." Id., at 444.^[6] But bankruptcy discharge entails no "fundamental *115 interest," we said. Id., at 445. Although "obtaining [a] desired new start in life [is] important," that interest, the Court explained, "does not rise to the same constitutional level" as the interest in establishing or dissolving a marriage. Ibid.^[7] Nor is resort to court the sole path to securing debt forgiveness, we stressed; in contrast, termination of a marriage, we reiterated, requires access to the State's judicial machinery. Id., at 445-446; see Boddie, 401 U. S., at 376.

In Ortwein v. Schwab, 410 U. S. 656 (1973) (per curiam), the Court adhered to the line drawn in Kras. The appellants in Ortwein sought court review of agency determinations reducing their welfare benefits. Alleging poverty, they challenged, as applied to them, an Oregon statute requiring appellants in civil cases to pay a $25 fee. We summarily affirmed the Oregon Supreme Court's judgment rejecting appellants' challenge. As in Kras, the Court saw no "`fundamental interest .. . gained or lost depending on the availability' of the relief sought by [the complainants]." 410 U. S., at 659 (quoting Kras, 409 U. S., at 445). Absent a fundamental interest or classification attracting heightened scrutiny, we said, the applicable equal protection standard *116 "is that of rational justification," a requirement we found satisfied by Oregon's need for revenue to offset the expenses of its court system. 410 U. S., at 660. We expressly rejected the Ortwein appellants' argument that a fee waiver was required for all civil appeals simply because the State chose to permit in forma pauperis filings in special classes of civil appeals, including appeals from terminations of parental rights. Id. , at 661.

In sum, as Ortwein underscored, this Court has not extended Griffin to the broad array of civil cases. But tellingly, the Court has consistently set apart from the mine run of cases those involving state controls or intrusions on family relationships. In that domain, to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of the intrusion. Cf. Moore v. East Cleveland, 431 U. S. 494 (1977).

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. See, for example, Turner v. Safley, 482 U. S. 78 (1987), Zablocki v. Redhail, 434 U. S. 374 (1978), and Loving v. Virginia, 388 U. S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923) (raising children). M. L. B.'s case, involving the State's authority to sever permanently a parent-child bond,^[8] demands the close consideration *117 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 and 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. See Gagnon v. Scarpelli, 411 U. S. 778, 790 (1973). In criminal prosecutions that do not lead to the defendant's incarceration, however, our precedent recognizes no right to appointed counsel. See Scott v. Illinois, 440 U. S., at 373-374. 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.^[9]

Significant to the disposition of M. L. B.'s case, the Lassiter Court considered it "plain . . . that a parent's desire for *118 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.^[10] 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.^[11] As in Lassiter, the Court characterized the parent's interest as "commanding," indeed, *119 "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. See supra, at 114-116. M. L. B., on the other hand, maintains that the accusatory state action she is trying to fend off^[12] is barely distinguishable from criminal condemnation in view of the magnitude and permanence of the loss she faces. Cf. In re Gault, 387 U. S. 1, 50, 55 (1967) (resisting "feeble enticement of the `civil' label-of-convenience," and holding that Fifth Amendment's safeguard against self-incrimination applies in juvenile proceedings). See also Santosky, 455 U. S., at 756, 760 (recognizing stigmatic effect of parental status termination decree: "[I]t entails a judicial determination that [a parent is] unfit to raise [her] own children."). For the purpose at hand, M. L. B. *120 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 111-112, 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 and running through Mayer, reflect both equal protection and due process concerns. See Ross v. Moffitt, 417 U. S., at 608-609. As we said in Bearden v. Georgia, 461 U. S. 660, 665 (1983), in the Court's Griffin -line cases, "[d]ue process and equal protection principles converge." The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs. See Griffin, 351 U. S., at 23 (Frankfurter, J., concurring in judgment) (cited supra, at 110-111). The due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action. See Ross, 417 U. S., at 609. A "precise rationale" has not been composed, id. , at 608, because cases of this order "cannot be resolved by resort to easy slogans or pigeonhole analysis," Bearden, 461 U. S., at 666. 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 110, 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 *121 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 111-112, 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.

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 parentchild bond, parental status termination is "irretrievabl[y] destructi[ve]" of the most fundamental family relationship. Santosky, 455 U. S., at 753. And the risk of error, Mississippi's experience shows, is considerable. See supra