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 hadfailed to pursue various strategies recommended by father to investigate andprepare for the trial, projected that she would not introduce or object toimportant evidence at trial, and said she would not advocate aggressively forhim in the trial because she had been a foster parent and was thus sympatheticto DCF [the Department for Children and Families].

The court explained that it could not assess father’s lawyer’seffectiveness at trial until after the hearing, but did invite counsel toaddress father’s concerns regarding her preparedness.  Father’s lawyerexplained that she would, in the hearing, be raising many of the pointsidentified by father, and that she had assessed and made decisions about the appropriatenessof various issues raised by father based on her knowledge of the law.  Sheindicated 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 fromrepresenting him.  Rule 1.7 deals with a lawyer’s obligation to avoidconcurrent conflicts of interest, including not representing a client whenthere is a “significant risk” that the representation is “materiallylimited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2).  The comments to the rules explain that such personalinterest conflicts may include a lawyer’s business or employment interest withan 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 interestin the outcome of the case that prevented her from providing father withadequate representation.  Counsel had not represented DCF in the past andhad no current or past relationship to DCF beyond counsel’s adoption five yearspreviously of a child who had been in DCF custody.  This created noinherent 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)