Monday, June 10, 2013

Should Ineffectiveness Claims Be Allowed In Termination Of Parental Rights?

 The Vermont Supeme Court has affirmed the termination of parental rights of a father who had claimed that his attorney was ineffective and conflicted.

The court summarized the claim

At the beginning of the hearing, father told the court that he was receiving ineffective assistance of counsel.  Father argued that his lawyer had failed to pursue various strategies recommended by father to investigate and prepare for the trial, projected that she would not introduce or object to important evidence at trial, and said she would not advocate aggressively for him in the trial because she had been a foster parent and was thus sympathetic to DCF [the Department for Children and Families].

The court explained that it could not assess father’s lawyer’s effectiveness at trial until after the hearing, but did invite counsel to address father’s concerns regarding her preparedness.  Father’s lawyer explained that she would, in the hearing, be raising many of the points identified by father, and that she had assessed and made decisions about the appropriateness of various issues raised by father based on her knowledge of the law.  She indicated that she was prepared for trial. 

The attorney denied being a foster parent and stated she had adopted a child. She had no current relationship with DCF.

The trial court found there was no conflict and the hearing went forward.

The Court:

We discern no conflict of interest that precluded father’s attorney from representing him.  Rule 1.7 deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.”  V.R.Pr.C. 1.7(a)(2).  The comments to the rules explain that such personal interest conflicts may include a lawyer’s business or employment interest with an opponent’s client or law firm, a lawyer’s financial interest in an opponent, or a lawyer’s personal connection to other lawyers in the action.  Here, there is simply no conflict.  Father’s attorney had no personal interest in the outcome of the case that prevented her from providing father with adequate representation.  Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody.  This created no inherent bias that would prevent counsel from adequately representing father.

Justice Dooley concurred, stating that he has not decided that ineffective assistance claims should be allowed in termination of parental rights cases. (Mike Frisch)

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