Tuesday, March 21, 2006

Case Law Developments: Counsel in TRP Not Ineffective for Failing to Investigate Effect of Adoption on Child's Tribal Rights and Benefits

The California Court of Appeals holds that a child's attorney in a termination of parental rights proceeding has not rendered ineffective assistance if the attorney does not investigate the effect of termination and adoption on the tribal identity and financial benefits that might flow from that decision. This case involved the termination of parental rights of a child who was a member of the Sycuan Band of the Kumeyaay Nation.   The Nation was not made a party to the termination proceedings, though it did oppose the termation, favoring guardianship instead. 

The child was eligible for certain tribal rights and benefits, including a monthly stipend of $1,500 to a trust, an increased monthly stipend after age 18, a free higher education, housing on reservation land, and lifetime medical and dental coverage.  Counsel for the child argued that these benefits and their possible loss were irrelevant to the proceedings and that an investigation of this issue would also require testimony regarding the prospective adoptive family's financial ability, all of which he asserted would be entirely speculative. 

The Court of Appeals agreed that Counsel did not render ineffective assistance in taking this approach, as even if termination of parental rights caused the child to lose her tribal benefits, "there is no statutory mechanism that permits the court to consider those interests when it selects the child's permanency plan... There is no general best interest exception to termination of parental rights under [the California statutes governing termination]."  Since the court concluded that there were no facts that would fit the case within one of the statutory exceptions precluding termination of parental rights, counsel's decision was at worst harmless error.

A dissenting judge would have found counsel's obligation to include investigating the effect of termination on the child's tribal benefits.

In re Barbara R., 2006 Cal. App. LEXIS 384 (March 20, 2006)
Opinion on the web (last visited March 21, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/03/case_law_develo_28.html

Adoption, Termination of Parental Rights | Permalink

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