Monday, June 24, 2013

Constitutional Rights vs. Happy Babies, or: How I Learned to Stop Worrying and Love New Jersey

By David Rangaviz

In re K.F., 2013 VT 39

Family law cases are almost invariably heartwrenching.  They involve intensely private matters playing out on an aggressively public stage: parental rights, the best interests of children, the division of assets, living arrangements, etc.  Matters that most of us decide in the privacy of our own homes are brought to the fore, and the ultimate decision is taken out of private hands and placed into those of a judicial officer.

With such high stakes, these cases are also pugnaciously litigated.  Where other private litigants might occasionally concede or stipulate to a certain fact, plaintiffs and defendants in family law matters really go to the mat.  Private antagonisms are given public stage, and the result is long, drawn-out litigation over the most personal matters in the litigants’ lives.  As a result, the litigation process itself can be punishment enough; victories are pyrrhic while losses are absolute.

Exacerbating the tension is the reality that these cases rarely lend themselves to Solomonic decision-making.  Though in a bitter custody case, a threat to split the baby may very well be supported by the biological mother.

Today’s case is no different, pitting two critical interests against each other: a parent’s right to effective counsel in cases involving the termination of their parental rights versus a child’s interest in custodial stability.

SCOV cannot split this baby either.  [But, like grandparents everywhere, it can (and does) set the baby aside for someone else to deal with.]

KF was born in April 2011.  Father had an extensive criminal record, including both drug and domestic violence offenses, as well as mental and emotional disorders for which he had resisted treatment.  As part of his release from incarceration, Father was ordered to have no contact with KF’s Mother.  When KF and Mother were found in Father’s apartment (in violation of the court ordered conditions of release), KF was taken into the custody of the Vermont Department of Children and Families (“DCF”).  After such a turbulent start to life, KF was still only 3 months old.

By KF’s first birthday, Mother—who had significant mental health issues of her own—had voluntarily relinquished her parental rights.  DCF then petitioned for the termination of Father’s parental rights, and a final hearing was held in July 2012. 

At the outset, Father alleged his counsel’s ineffective assistance.  Having gone through three other court-appointed lawyers, Father claimed that his fourth attorney was not investigating the case and preparing for trial, and was inherently biased because she was a foster parent herself and thus sympathetic to DCF.

The trial court found no basis to remove counsel and the termination hearing proceeded as scheduled.  At the hearing, the court noted that Father had been incarcerated for all but 61 days in the sixteen months since KF’s birth and was still incarcerated with no expectation as to his date of release.  He engaged in no parenting during his incarceration, nor did he contact KF when he was a free man—total contact between the two totaled no more than 3 to 6 hours.  The trial court also noted Father’s significant mental health issues (for which he had continued to resist treatment) as well as his history of domestic violence, incarceration, and overall unstable living situation.

KF, on the other hand, was doing quite well.  He had been living with foster parents since September 2011, he had a strong bond with those parents (as well as his foster siblings and extended foster family), and those parents were ready and able to adopt him. 

On the basis of Father’s limited relationship with KF, his continued incarceration, untreated mental health issues, and KF’s stable and loving relationship with his foster family, the court granted DCF’s request for termination of Father’s parental rights.

On appeal to SCOV, Father did not actually contest any of these findings supporting the termination decision.  Instead, he continued to claim (as he had at the outset of the hearing) that he had been denied his right to effective counsel.  This ineffective assistance, by Father’s argument, nullified the judgment of the trial court, requiring reversal, appointment of replacement counsel, and a new hearing.

In a unanimous opinion, the SCOV affirms the trial court.

As stated above, the case pits two discrete interests against each other.

First, Father argues that he must have a right to the effective assistance of counsel where the matter at issue—his parental rights over KF—are of such critical importance.  Although the U.S. Supreme Court has declined to establish a constitutional right to appointed counsel in all termination proceedings, Vermont statutes specifically confer a right to counsel for indigent parents.  Surely, Father claims, there is some obligation that this statutorily-mandated counsel be effective in this representation.  Why would the legislature bother to establish a right to counsel without a concomitant expectation that such counsel provide effective representation? 

But this clashes with the generally-applicable legal doctrine, which provides for a right to effective counsel under the Sixth Amendment only in criminal cases, where a deprivation of liberty is at stake.  There is no right to effective counsel in civil cases; instead of getting reversal of the court judgment, civil litigants can generally just sue their ineffective lawyers for malpractice.  But that general rule, which would make most civil litigants whole—after all, civil cases are usually about money—does not adequately compensate Father (or any other parent whose rights are terminated).  No amount of malpractice money will get him his son back.  This is all on the one hand.

On the other hand, claims of ineffective assistance take many, many years to litigate.  As Justice Dooley (joined by Justice Burgess) notes in a brief concurrence, it is not unusual for such cases to take three years in the trial court.  Last year, SCOV saw an ineffective assistance claim that percolated for nine years (!) before reaching the appellate level.  If SCOV were to extend a right to effective assistance of counsel to parental termination proceedings, such drawn-out litigation could upset the stability that is critical to the upbringing of a child.  Say, for example, the trial court granted DCF’s request for termination.  In nine years, if SCOV concluded trial counsel had been ineffective and reversed, KF could potentially be wrested from his foster family and returned to a father he barely knows, an outcome that protects Father’s rights at the expense of his son’s.

Thus, it seems, Father’s claimed right to effective counsel directly clashes with KF’s best interests and stable upbringing.

For today, SCOV sidesteps this issue entirely.  The SCOV holds that, even assuming solely for the sake of this case that there is a right to effective assistance of counsel, Father has not been denied that right.  Going point-by-point, SCOV concludes that Father was afforded zealous representation, counsel was not biased by having adopted a child from DCF five years before Father’s case, and, whatever counsel’s deficiencies, Father could not hope to show that the outcome of the termination proceeding would have been different because there was ample evidence in the record supporting the trial court's decision to terminate his parental rights.

For KF, that means termination of Father’s parental rights, continued placement with his foster family, and likely adoption.

But the broader question—whether parents have a right to effective assistance of counsel in termination proceedings—remains as unsettled as before.  The SCOV, in recognition that the “rules currently do not prescribe any procedure for addressing such claims of ineffective assistance,” referred the matter to the Advisory Committee on Rules for Family Proceedings for the proposal of “a rule that best ensures finality and timely resolution of [termination] claims consistent with parents’ legal rights.”

The concurrence recognizes the intractable nature of the problem.  The extended time period for ineffective assistance claims is largely a function of the high burden on litigants bringing such claims; they must show that the lawyer’s work fell below the “standard of effectiveness of reasonably competent counsel” and that the outcome of the case likely would have been different with effective representation (i.e., the “prejudice” prong).  To do so, they must take the time to locate, recruit, and prepare expert witnesses who will describe that standard and counsel’s failure in meeting it.  Any sort of expedited procedure, the concurrence fears, “predetermines the result; it can be honored only for ineffective ineffective-assistance-of-counsel claims.”  In other words, if the case moves too quickly, it will be doomed to failure.  Having voiced these concerns, he nonetheless “look[s] forward to the results” of the Advisory Committee’s work, but notes that he is “unlikely to be persuaded that we should open this door at all.”

With this expression of trepidation from two Justices, should the Advisory Committee bother trying to open this door?

By establishing a right to counsel for indigent parents, the legislature has already taken a step toward equating termination and criminal proceedings.  Although not of a constitutional magnitude, the legislature’s establishment of a statutory right to counsel inherently recognizes a right that such counsel be effective in that representation.  A right to effective representation is really part and parcel with the right to counsel; the latter without the former is an illusory, neutered protection for parental rights.  Sure enough, the Massachusetts Supreme Judicial Court has long since recognized in the termination context that “[a] right to counsel is of little value unless there is an expectation that counsel's assistance will be effective.”  This is particularly true give the high bar for ineffectiveness claims; trust me, counsel can be highly, highly incompetent without rising to the level of formal “ineffectiveness.”  A contrary result would effectively nullify the state statute by rendering the right to counsel a hollow command.  Whenever it decides to take up this issue again, SCOV cannot reach this result.  There must be a right to effective representation in termination proceedings.

This is all the more critical given the consequences of an erroneous decision—deprivation of parental rights.  The liberty interest in caring for and having custody over one’s children, is, in the words of the U.S. Supreme Court, “perhaps the oldest of the fundamental liberty interests recognized by this Court.”  Indeed, many parents would probably prefer jail to the unshakeable finality of such a loss.  There must be some method to ensure that parents can reverse these judgments if they can meet the (admittedly high) bar required for ineffective assistance claims.  In the main, parents will likely not be able to meet this standard, and the termination decision will stand undisturbed.  But just because this road is difficult to travel does not mean that SCOV, or the Advisory Committee, must render it impassable.

Rather than narrow the right to counsel, the Advisory Committee should go after the real culprit here: delays.  Protracted litigation not only undermines the best interests of the child, it also harms both the natural and prospective parents by making any custodial decision defeasible.  This uncertainty also threatens the entire Vermont adoption system—if adoptive parents do not believe that their adoption will be final there will be fewer families willing to adopt, which, in turn, means longer stays in foster care, draining state resources and reducing stable placements for foster children.

The Advisory Committee must ensure that any ineffective assistance claims do not languish in the trial courts as they do in criminal cases.  As an example, SCOV cites a New Jersey procedure in which that state (1) allows ineffective assistance claims to be brought on direct appeal, and (2) if a fact needs to be litigated, the case can then be remanded for an expedited hearing within 14 days, with a prompt decision to follow, and appellate briefing within 7 days of the decision below.  All told, New Jersey ineffective assistance claims can be tried, appealed, and decided within one month.  Perhaps the Advisory Committee can inquire with New Jersey family law personnel to assess how this system has worked in that state and whether these strict deadlines—as the concurrence fears—are too onerous for parents to meet.

Perhaps the Advisory Committee should even consider lowering the legal burden on parents trying to prove ineffective assistance.  It is not immediately apparent why Vermont courts should import the standard for ineffective assistance from criminal law.  After all, criminal proceedings are rife with procedures—strict application of the rules of evidence and procedure, jury trials, proof beyond a reasonable doubt—designed to protect against erroneous convictions that are not present in termination proceedings.  If the risk of an error is thus greater in a termination case, perhaps the standard for ineffective assistance should not be quite so exacting (or at least the “prejudice” prong of the test could be relaxed).

Regardless of the precise deadlines or standards eventually recommended by the Advisory Committee, some Vermont analogue to the New Jersey system would best protect the interests of parents while ensuring quick resolution of ineffective assistance claims for the sake of Vermont foster children.  Preferably these cases should be handled on direct appeal—as KF’s case was—with any necessary remand accompanied by tight deadlines.  Even if these deadlines are burdensome for parents, the alternative is far worse; they would undoubtedly prefer being forced to meet a hard deadline to having no right to effective counsel at all.

But, as a proud Vermonter, let me say this: that’s the only thing Vermont should ever borrow from New Jersey.  Well, okay, I guess we’ll take Springsteen … and GTL … and The Sopranos.  But that’s it.


  1. Hi, just a moment back I was searching for the information on the same topic and now I am here.Law web directory Mitchel Tarter

  2. New to Vermont and just discovered this blog. Did the Advisory Committee ever deal with this issue?