Kafia M., part 2

IV.  THE LACK OF AN INTERPRETER AT THE EARLY STAGES OF
THE CHILD PROTECTION PROCEEDING

	[¶18]  The facts found by the trial court with regard to the abilities of
Shamso and Mohamed to speak English and the provision of interpreter
services are as follows and are supported by the record.  Shamso's English is
poor, but Mohamed speaks excellent English.  When the child protection
proceedings were started in March 1996, Shamso refused the services of an
interpreter at the hospital.  Several of the service providers testified that
they were able to communicate with Shamso either through hands-on
demonstrations or through Mohamed.  They were confident that Shamso
understood because of her responses.  
	[¶19]  Shamso was provided an interpreter throughout the
termination hearing.  In fact, three Somali language interpreters were sworn
at the beginning of the hearing.  Evidence was presented that Shamso
requested an interpreter in the summer of 1996, but the specific
interpreter she requested was not available, and it was not until October
1996 that DHS obtained the services of an interpreter for her.  An
interpreter was present throughout the Spurwink evaluation.  
	[¶20]  Shamso argues that the failure of DHS to provide a Somali-
language interpreter at all stages of the child protection process is a
violation of her rights to due process and equal protection as secured by the
Fourteenth Amendment to the United States Constitution.{4}  She contends
that having an interpreter at the termination hearing itself is not sufficient
because the termination hearing was preceded by almost two years of
various contacts with DHS personnel.  She argues that she did not have a
meaningful opportunity to be heard during those other contacts.  
	[¶21]  The standard due process analysis enunciated in Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976) requires a balancing of three factors. 
See In re Charles Jason R., Jr., 572 A.2d 1080, 1081 (Me. 1990) and In re
Randy Scott B., 511 A.2d 450, 452-54 (Me. 1986) (applying Mathews to due
process challenges to portions of child protection and parental rights
termination statutes and proceedings).  The first factor is the private
interest affected by the government, Mathews, 424 U.S. at 335, and there is
no question that Shamso's interest in her parental rights is a substantial
one, see In re Alexander D., 1998 ME 207, ¶ 14, 716 A.2d 222, 226-27. 
The second factor is the "risk of an erroneous deprivation."  Mathews, 424
U.S. at 335.  Shamso argues that there was a substantial risk that her
parental rights in Kafia would be terminated erroneously because of the lack
of an interpreter at the early stage of the proceedings.  We disagree.  The
provision of an interpreter at the termination hearing itself alleviated any
risk of an erroneous termination that might have been engendered by the
lack of an interpreter at an earlier point.  Shamso was able to raise at the
termination hearing, through her attorney and an interpreter, issues as to
any misunderstandings that may have developed early in the process from
the lack of a neutral interpreter.  Furthermore, at a key point between the
jeopardy and termination hearings, that is, the psychological evaluation and
meetings with Drs. Drach and Ricci, Shamso also had an interpreter.  
	[¶22]  The third factor in Mathews is the government's interest in
adhering to the existing procedure, including the fiscal and administrative
implications of additional procedures.  See id.  Presumably there would be a
financial impact upon DHS if it were required to provide an interpreter at
every interaction with Shamso.  Such an impact would be worthwhile if an
interpreter was necessary to communicate with Shamso, but the facts found
by the trial court were that the providers and DHS workers were able to
communicate with Shamso by demonstrations or through interpretation
provided by Mohamed.  By the time Shamso and Mohamed began living
apart, a separate interpreter was provided for her.  Before that time it was
not unreasonable to expect Mohamed, whose interests appeared to be the
same as Shamso's, to interpret.  Weighing the Mathews factors, we find no
deprivation of Shamso's due process rights.
	[¶23]  Shamso's equal protection argument fails as well for the reason
that the trial court found that she was able to communicate with DHS
workers before an interpreter was provided and because an interpreter was
provided for her at the crucial stages of the termination process.

V.  THE FAILURE TO ASSIGN SEPARATE ATTORNEYS TO THE PARENTS 
AT THE EARLY STAGES OF THE CHILD PROTECTION PROCEEDING

	[¶24]  Mohamed and Shamso assert that their due process rights were
violated because the District Court failed to assign separate counsel to them
at the inception of the child protection proceedings in 1996.{5}  They now
claim that there was a conflict of interest between them and that the court
should have recognized the conflict and ordered individual representation.{6} 
The record does not reflect a request for separate counsel until September
1997, when the attorney originally assigned to represent Shamso and
Mohamed moved to withdraw from representation.  The motion was
granted, and Shamso and Mohamed were each appointed an attorney. 
	[¶25]  Mohamed and Shamso have been represented by their separate
attorneys since September 1997, more than one full year before the
termination hearing.  Because the parents have not demonstrated that they
had a conflict of interest at a time when they were both represented by the
same attorney, we do not need to determine whether and when separate
counsel should have been appointed.  The appointment of separate counsel
when first requested and the representation by separate counsel at the
termination hearing ameliorates any deficiency that might have resulted
from the appointment of only one attorney to represent them at the
jeopardy proceeding.  At the termination hearing the parties could have
raised any issue that resulted from their lack of separate counsel.  In fact,
they did not raise, at the termination hearing, the issue of lack of separate
counsel.
	[¶26]  The parents point to In re Christopher C., 499 A.2d 163 (Me.
1985), in which we held the failure of the court to appoint counsel for a
mother for the preliminary protection hearing required vacation of the final
child protection order.  The mother and father were separated,
contemplating divorce, and the father was seeking custody of the children. 
Id. at 164.  Their interests were adverse to one another.  The trial court had
not allowed the mother to examine witnesses at the preliminary hearing.  Id.  
Some of the witnesses who testified at the preliminary hearing were not
reexamined at the final hearing and only asked to swear that their previous
testimony was true.  Id.  Therefore, while the mother had an attorney at the
final child protection hearing, the attorney was unable to fully represent her. 
Id. at 164-65.  The attorney, although agreeing to let the court consider the
evidence presented at the earlier hearing, had not even heard that evidence. 
Id.
	[¶27]  In contrast, at the termination hearing regarding Mohamed and
Shamso's parental rights, the court did not rely upon evidence taken at
prior hearings.  Evidence was fully presented on Kafia's injuries, the removal
from her home, the trial placement, the additional injuries, the numerous
services provided to the family, the medical and psychological data, and the
current situation of Kafia, in addition to the numerous witnesses presented
by the parents as to their standing in the community, their characters and
reputations, their ability to parent, and the observations of neighbors and
friends.  
	[¶28]  Furthermore, Mohamed and Shamso have failed to demonstrate
any prejudice that resulted to either of them by being represented for a time
by the same attorney.  In his brief, Mohamed argues that if he had had his
own attorney before DHS petitioned for termination of his parental rights,
he could have sought to obtain custody of Kafia.  The fact is he had his own
attorney for several months before the petition for termination was filed.  
The lack of separate counsel at the jeopardy stage of the child protection
proceedings did not result in a denial of due process to them in the
termination phase of the case.
	The entry is:
Judgment affirmed.
Attorneys for appellants:

Jane Elizabeth Lee, Esq., (orally)
P O Box 89
Portland, ME 04112

Diane Powers, Esq., (orally)
P O Box  7354
Portland, ME 04112

Attorneys for appellees:

Andrew Ketterer, Attorney General
Michael C. Kearney , Asst. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006

Ellyn C. Ballou, Esq., (orally)
P O Box 328
South Freeport, ME 04078
(for intervenors)

Guardian ad Litem:

Judith Plano, Esq.
169 Ocean Street
South Portland, ME 04106

The parents and intervenors were represented by different attorneys in the District Court.

FOOTNOTES******************************** {1} . At the close of the evidence, the parents moved to dismiss on the grounds that DHS was required to obtain a cease reunification order before it could file the termination petition and that DHS was required to place the child with a foster family with the same cultural and religious background as the natural parents. The motions to dismiss were denied, and the parents did not appeal the denial. {2} . Shamso has not argued that the evidence is insufficient as to her. Our review of the record persuades us that the trial court had more than sufficient evidence to meet the standards of termination as to Shamso. {3} . Section 4063 states: If the parents of a child in the custody of the department request in writing that the child be placed in a family of the same general religious faith, for foster care or adoption, the department shall do so when a suitable family of that faith can be found. {4} . Maine also guarantees by statute and rule a litigant's right to an interpreter: When personal or property interest of a person who does not speak English is the subject of a proceeding before an agency or a court, the presiding officer of the proceeding shall either appoint a qualified interpreter or utilize a professional telephone-based interpretation service. Payment by the State for an interpreter in civil matters is within the discretion of the agency or court to the extent that payment by the State is not already required by law. 5 M.R.S.A. § 51 (Pamph. 1999). M.R. Civ. P. 43(l) provides: The court may appoint a disinterested interpreter of its own selection, including an interpreter for the deaf, and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. Interpreters shall be appropriately sworn. {5} . In Danforth v. State Dept. of Health and Welfare, 303 A.2d 794 (Me. 1973), we held that the due process clause requires the appointment of counsel to indigent parents faced with the termination of their parental rights. The requirement of appointed counsel has been embodied in the child protection statutes. See 22 M.R.S.A. § 4005(2) (1992). {6} . The parents claim that the conflict is the result of a dispute as to the cause of Kafia's injuries and from Mohamed's early suggestion that Shamso's massaging of Kafia's legs might have led to the fractures. It is not clear, however, that there has ever been a conflict of interest between the two parents. At the termination hearing, neither blamed the other for Kafia's injuries. Both said they did not know how Kafia's injuries occurred.

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