FILED: August 9, 2000

SCOTT JAMES HUNT
and KAREN ELAINE HUNT,

Respondents,

v.

THEODORE LYLE WEISS,

Appellant.

Appeal from Circuit Court, Josephine County.

Allan H. Coon, Judge.

Argued and submitted July 1, 1999.

Jeanean West Craig filed the brief for appellant.

Frank C. Rote, III argued the cause for respondents. With him on the brief was Brown, Hughes, Bird & Rote.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

ARMSTRONG, J.

Reversed and remanded.

ARMSTRONG, J.

In this step-parent adoption case, father appeals the trial court's judgment terminating his parental rights to his nine-year-old daughter. He assigns error to the trial court's failure to appoint counsel for him and to its determination that the adoption would be in the child's best interest. Because we conclude that the trial court improperly denied father's request for court-appointed counsel, we reverse.

Mother and father were married in 1984 and divorced in 1994. Mother married stepfather in January 1998, and, in March of that year, they petitioned to have the child adopted by stepfather. Father had been incarcerated beginning in 1995 for various crimes involving mother and several members of mother's family. Because of the incarceration and a prior restraining order that had been issued against him, father had not had any in-person contact with child since 1994. (1) He was scheduled to be released in January 1999.

The trial court issued a citation to father directing him to appear and show cause why the adoption should not go forward or to file a response or answer before the hearing date. Father attempted to file a response objecting to the adoption about three weeks before the scheduled hearing. However, he mistakenly sent it to the federal district court, which faxed it to the state circuit court a few days before the hearing. Because father had attempted to file an answer, the trial court continued the hearing for about a month. In doing so, it noted that father desperately needed counsel but that it could not provide it for him. Although the court indicated that it would send father a letter advising him to obtain counsel if possible, the trial court record does not contain such a letter. Shortly after the initial hearing, which he did not attend, father filed a motion and affidavit requesting a waiver of court costs and fees because of indigency. Five days before the second scheduled hearing, father requested a continuance until after his release so that he could "seek legal counsel and financial status." The court apparently did not address the motion until the hearing began. Father appeared telephonically at the hearing and represented himself. At the start of the hearing, the trial court denied the request for a continuance. Before beginning to testify, father stated that he "would like to ask the Court for counsel" and repeated his request for a continuance until after his release. The trial court proceeded to the merits and determined that adoption would be in the child's best interest. Accordingly, it terminated father's parental rights without his consent under ORS 109.322. (2)

Father assigns error to the trial court's failure to appoint counsel for him. He argues that he was entitled to appointed counsel under Article I, section 20, of the Oregon Constitution as interpreted in Zockert v. Fanning, 310 Or 514, 800 P2d 773 (1990). Mother and stepfather respond that Zockert does not entitle father to appointed counsel, that, if it does, father did not properly preserve that issue, and that the court's failure to appoint counsel was harmless error. Father also assigns error to the trial court's conclusion that the adoption would be in child's best interests. Because we agree with father that he was entitled to appointed counsel and that the court's failure to appoint him counsel requires reversal, we do not reach father's second assignment of error.

We first address whether father properly preserved his claim to appointed counsel. Father specifically requested counsel, which is all that the father did in Zockert to raise that issue. See Zockert, 310 Or at 516-17. Although the Supreme Court did not address preservation in Zockert, the fact that it decided the father's claim on the merits indicates that it understood his assignment of error to have been preserved. We see no reason why the preservation issue should be decided differently in this case than it was in Zockert. Accordingly, we conclude that father's first assignment of error is preserved.

We now turn to whether father was entitled to appointed counsel under Article I, section 20, of the Oregon Constitution. Article I, section 20, provides that "[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Or Const, Art I,