Ineffective assistance of counsel in parental-rights termination cases: the challenge for appellate courts.

• Author: Calkins, Susan

1. INTRODUCTION

   Appellate courts are increasingly presented with claims of ineffective assistance of counsel in proceedings that involve the termination of parental rights. These claims grow out of the burgeoning number of parental-rights termination petitions filed in the trial courts since the Adoption and Safe Families Act of 1997 (1) became law. The ASFA is designed, among other things, to promote the adoption of foster children, (2) and termination proceedings must be initiated in order to free those children for adoption. (3)

   In almost every state parents have a right to counsel when the state seeks to terminate their parental rights. The vast majority of parents in termination proceedings are indigent, which often means that their counsel is appointed by the court or provided through a public defender or contract system. The representation of parents by overworked and underpaid attorneys results in claims by parents that their counsel was ineffective.

   This article explores both the procedural vehicles and the substantive standards adopted by appellate courts for claims of ineffective assistance when such claims brought by parents seeking to vacate or reopen judgments terminating their parental rights. I start by briefly describing the process of a typical parental-rights termination case. Next, I discuss the Supreme Court's view of the right to counsel in parental-termination cases and the status of the parent's right to counsel in the various states. I then analyze the procedures used by the courts to review a claim of ineffective assistance, and I suggest the procedure that I believe to be the most productive and efficient given the interests of the parents and the needs of the children. Next, I turn to the substantive standard for determining whether counsel is ineffective, and I summarize some states' experience with the application of the Strickland (4) standard to ineffectiveness claims in parental-termination cases. I also describe another ineffectiveness standard, the fundamental-fairness approach, which has been adopted by a few state courts, and I attempt to discern the practical differences between these two standards by examining the facts and outcomes of specific cases. Finally, I suggest a framework that might help appellate courts determine which standard of assessing the performance of lawyers in parental-rights cases is appropriate.

2. THE TYPICAL PROCEEDING FOR TERMINATION OF PARENTAL RIGHTS

   Although the specific procedures for terminating parental rights vary widely from state to state, their basic processes are similar. (5) This is partly because the states conform to federal requirements in order to receive federal money for foster care, (6) and partly because the federal government has issued guidelines for use in parental-termination proceedings. (7)

   Generally speaking, when a state or local child-welfare agency receives a report of child abuse or neglect, it conducts an investigation. If it determines that the child is in jeopardy and that a custody order is necessary to protect the child, the agency files the necessary documents with the court. The child's parents are entitled to a hearing before the child is removed. These hearings are variously referred to as dependency proceedings, jeopardy proceedings, or child-protection proceedings, and counsel is usually appointed for indigent parents involved in them.

   When custody of the child is given to the state, the court often orders the state to provide certain services for the parents or orders the parents to obtain the services. Such services may include psychological counseling, substance-abuse treatment, parenting classes, homemaker assistance, and other services to remedy the problem that led to the child's removal from the home. The purpose of such services is to facilitate the reunification of the family. However, in certain situations, the court may relieve the state from making reasonable efforts to reunify a family. (8) Once a child has been placed in foster care, the court holds periodic reviews with the parties.

   By federal mandate, before a child has been in foster care for twelve months, a permanency hearing must be held to determine whether the child will be returned to the parents or the state will proceed with terminating parental rights. (9) Additionally, the state is required to commence proceedings to terminate parental rights when a child has been in foster care under the supervision of the state for fifteen of the most recent twenty-two months. (10)

   Counsel is usually appointed for the parents, and a guardian ad litem is named for the child. The burden is on the state to prove, by clear and convincing evidence, that termination is warranted. (11) The Supreme Court has noted that the New York termination proceeding resembles a criminal trial in that the state and parents are both represented by counsel and the rules of evidence apply. (12) Unlike criminal trials, however, termination hearings are bench trials in most states. (13) The substantive grounds for termination vary from state to state but typically include the abandonment, murder, or aggravated assault of a child's sibling; severe parental incapacity; and the inability or unwillingness of a parent to change the circumstances that caused the child's abuse or neglect. (14) Other grounds suggested by the federal guidelines include failure of parents to improve; extreme parental indifference; extreme or repeated abuse or neglect; and extended imprisonment. (15)

   A judgment terminating parental rights has the effect of legally severing the parent-child relationship. The judgment is appealable, and, in most states, appellate counsel is appointed for indigent parents. (16)

3. ARE PARENTS BEING DEPRIVED OF EFFECTIVE COUNSEL IN TERMINATION CASES?

   Almost every state provides counsel to indigent parents either through public defender offices, a system of appointed counsel, or contracts with groups of attorneys. Lack of funding for public defenders and assigned counsel is a chronic problem. (17) Like defendants in criminal cases, parents who are accused of neglecting or abusing their children are seldom sympathetic figures, and they often have no political power. There is little desire by taxpayers to provide more money for their lawyers.

   States have largely modeled their systems for representation of indigent parents on systems for representation of criminal defendants. (18) This generally means that the inadequacies of the criminal defense system are transferred to the representation of parents in termination proceedings. Those inadequacies include underfunding, which translates to low pay for attorneys; (19) caseloads larger than an attorney can conscientiously handle; (20) few resources for investigation of cases and little support staff; (21) and sparse, if any, continuing education or training in the specific aspects of the law of parental-rights termination. (22) California, by court rule, requires the trial courts to have standards of experience and education that attorneys must meet in order to be eligible for court appointment in child-dependency proceedings, but California appears to be an exception. (23) Indeed, there is minimal incentive for appointed or contract lawyers to participate in continuing legal education in parental-termination law because they will not be paid enough in such cases to make it worthwhile.

   Not only is there little monetary incentive for attorneys to accept parental-termination cases in an assigned counsel system, there are usually several factors that provide a disincentive. The cases are sometimes factually difficult and they are often time-consuming. The parents may distrust any authority figure, including their own attorney. The parents, who are usually undereducated, are often unable to assist with preparation of the case. Many parents have little insight into the problems that caused the removal of their children from their homes. Communication with the parents is sometimes difficult because they have no phone or consistent location at which to receive mail, or because they are in and out of jail, treatment centers, or mental institutions. There may be language or other cultural barriers. Attorneys handling termination cases often feel more like social workers than lawyers. Additionally, the cases can be emotionally draining.

   Given the lack of funding, the disincentives for accepting termination cases, and the lack of requirements for appointment, it is not surprising that many attorneys who represent parents are inexperienced. Those few experienced attorneys who are willing to suffer the long hours and minimal pay out of a sense of moral or ethical obligation or simply a willingness to serve, often find their cup overflowing, with judges or other court personnel pressuring them to take still more cases.

   In those jurisdictions where the public defender represents parents in termination proceedings, excessive caseload is the major problem. (24) Too many cases lead to minimal preparation for trial. Either because of inexperience or excessive caseload the attorney in a termination case may fail to obtain and review discovery materials; not know what reports, files or other materials are available from the state agency; fail to interview or call witnesses to testify for the parents; fail to develop a defense theory; or fall into one of many of the potential pitfalls awaiting the unprepared or inexperienced lawyer.

   Therefore, it is not surprising that ineffective assistance of counsel has been raised as a claim in a number of reported appeals of parental-rights termination orders. Ineffective assistance of counsel has now become the most common ground alleged in proceedings to review criminal convictions, (25) and it is likely that many attorneys who accept court appointments to appeal parental-termination orders also handle appellate or post-conviction criminal cases or, particularly in the case of public...