dissenting.
In State v. Jamison, 251 Or 114, 444 P2d 15, 444 P2d 1005 (1968), relied upon by us in State ex rel Juv. Dept. v. Wade, 19 Or App 314, 527 P2d 753, 19 Or App 835, 528 P2d 1382 (1974), Sup Ct review denied, appeal dismissed 423 US 806 (1975), the court said:
"It is the general rule that where the state is the adversary party and is attempting to take a child permanently from a parent, the parent is entitled to the assistance of retained counsel. See Annotation, 60 ALR2d 691, 692 (1958). We now hold that, where the parent in a termination proceeding is indigent, counsel must be supplied at public expense. We need not now decide whether constitutional due process requires the appointment of counsel in other types of juvenile hearings.
"The permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants. It would be unconscionable for the state forever to terminate the parental rights of the poor with*617out allowing such parents to be assisted by counsel. Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state. See In re Gault, supra. If the parents are too poor to employ counsel, the cost thereof must be borne by the public as in cases under ORS 419.498(2).
"The state points out that in the case at bar the mother did not request counsel and contends, therefore, that she waived counsel. We hold that waiver cannot be inferred from a failure to request court-appointed counsel by a person who, insofar as the record reveals, does not know of her right to counsel. ” 251 Or at 117. (Emphasis supplied.)
Both Jamison and Wade deal with the right of parent and child to counsel in termination of parental rights cases brought in the juvenile court under ORS 419.523 to 419.527. The case at bar is an adoption proceeding brought under ORS ch 109. The court holds that "no valid distinction may be made between the proceeding at bar — a 'Chapter 109’ adoption proceeding — and an action for the termination of parental rights — ORS 419.523 through 419.527 — which would warrant the application of a different rule with respect to the protection of the rights of the children involved.” I agree with that holding. It follows, then, to me that the holding of Jamison has equal application to ORS ch 10.9 adoption proceedings.
In its opinion the court alludes to Jamison only in a footnote which offers no explanation why the very quotation there set forth does not itself require us to reach a different result here. I can only conclude that the Oregon Supreme Court in denying review of Wade certainly did not indicate it was disposed to reconsider its holding in Jamison nor that it disagreed with Wade. My understanding of the rule of stare decisis and of the role of this court in the Oregon judicial system requires this court to adhere to and follow that case. It is not for us to say that the portion of its hold*618ing relating to counsel for the child is dicta, as the majority here appears to do.
In Stanley v. Illinois, 405 US 645, 92 S Ct 1208, 31 L Ed 2d 551 (1972), the United States Supreme Court held that the father of an illegitimate child has a due process right to notice and a hearing in a juvenile court dependency proceeding having as its object the awarding of the child’s legal custody. Certainly the right of a five-year-old child to be represented by cpunsel in a civil proceeding in which not only is he a party but which determines both whether he is to be permanently separated from his parent(s) and also what person^) are to assume the role of parent(s) in his life is equally important, if not more important, than that father’s right.
That court said in recognizing such a father’s due process rights:
"The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'comets] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ Kovacs v. Cooper, 336 U.S. 77, 95 [93 L Ed 513, 527, 69 S Ct 448, 10 ALR2d 608] (1949) (Frankfurter, J., concurring).
"The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed 'essential,’ Meyer v. Nebraska, 262 U.S. 390, 399 [67 L Ed 1042, 1045, 43 S Ct 625, 29 ALR 1446] (1923), 'basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541 [86 L Ed 1655, 1660, 62 S Ct 1110] (1942), and '[r]ights far more precious . . . than property rights,’ May v. Anderson, 345 U.S. 528, 533 [97 L Ed 1221, 1226, 73 S Ct 840] (1953). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Mas*619sachusetts, 321 U.S. 158, 166 [88 L Ed 645, 652, 64 S Ct 438] (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399 [67 L Ed at 1045], the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541 [86 L Ed at 1660], and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 [14 L Ed 2d 510, 522, 85 S Ct 1678] (1965) (Goldberg, J., concurring).” 405 US at 651.
See also Boddie v. Connecticut, 401 US 371, 91 S Ct 780, 28 L Ed 2d 113 (1971). Certainly the need and thus the right of the child to have inquiry made on its behalf by competent, independent representation can be no less than that of a parent of an illegitimate child.
The court here points out that in this adoption proceeding the state through Children’s Services Division filed the report authorized by ORS 109.310(3) and that its staff testified in this case. Here, however, apart from filing the motion to consolidate, the state did not appear and it was not otherwise represented by counsel. The adoption code, unlike the juvenile code, in ORS 419.494 has no provision allowing .the court "in any proceeding” to appoint "some suitable person to appear in behalf of the child.”
A second aspect of this case revolves about ORS 13.041, which provides in part:
"When a minor * * * is a party to any action, suit or proceeding, he shall appear * * * by a guardian ad litem appointed by the court in which the action, suit or proceeding is brought. If the minor does not have a * * * guardian, he shall appear by a guardian ad litem appointed by the court. * * *”
In this adoption case the child had no guardian. He was a party. In re Flora’s Adoption, 152 Or 155, 52 P2d 178 (1935). The majority correctly concludes that a child who is the subject of an adoption petition is entitled to counsel therein, but holds that it is within the *620trial court’s discretion whether to appoint one, to be exercised on a case-by-case basis.1
In my opinion ORS 13.041 requires that a guardian ad litem be appointed for the child. If Children’s Services Division had been appointed as a guardian of the child, it might well, it seems to me, have served in that capacity (ORS 419.521 or 419.511(3)), but here it was not and thus made no appearance. It would seem particularly so when, as here, Children’s Services Division filed a report as required by ORS 109.310(4) recommending against the proposed adoption.2
This case presents with particular clarity the desirability for adherence to ORS 13.041 and more importantly the value both to court and child that a guardian might well have. As the brief of amicus points out, the adversaries here are passionately interested private parties, one seeking to assume the rights which the other seeks to preserve.
I do not believe on the facts of the case at bar that the failure of the court to appoint a guardian for the five-year-old child, particularly in view of its refusal to appoint counsel, was consistent with "fundamental fairness,” procedural due process or ORS 13.041.
For all the foregoing reasons I respectfully dissent.
LEE, J., joins in this dissent.I apprehend that, in the absence of reasonably ascertainable guidelines, some courts will rarely, if ever, appoint counsel, while others in virtually all cases will do so.
Recently in another termination of parental rights case (State ex rel Juv. Dept. v. Greybull, 23 Or App 674, 543 P2d 1079 (1975)), there under the juvenile code, the state in oral argument took "the position that the child as a party has representation — his guardian, and his guardian in most of these situations is the Children’s Services Division.” It then urged, if I correctly understood its argument, that the resolution of the question in each case concerning counsel for the child should be at least primarily the responsibility of the guardian.