2013 VT 39


In re K.F. (2012-340)
 
2013 VT 39
 
[Filed 07-Jun-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 39

 

No. 2012-340

 

In re K.F., Juvenile


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Orleans Unit,


 


Family Division


 


 


 


April Term, 2013


 


 


 


 


Walter
  M. Morris, Jr., J.


 

Adele V. Pastor, Barnard, for Appellant Father, D.B.
 
William H. Sorrell, Attorney General, Montpelier, Jody A.
Racht, Assistant Attorney General,
  Waterbury, and Bridget C. Asay, Assistant Attorney
General, Montpelier, for Appellee
  Department for Children and Families.
 
Kyle C. Sipples of Zuccaro, Willis & Sipples, P.C., St.
Johnsbury, for Appellee Juvenile.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.   Father appeals the termination of his
parental rights (TPR) to his son K.F. on the grounds that the trial court erred
in denying his motion for replacement counsel because his lawyer had a conflict
of interest and he received ineffective assistance of counsel.  We affirm.
¶ 2.            
K.F. is father’s third child.  The family division previously
terminated father’s rights to his two older children.  In that case, the
court’s unchallenged findings were that father has an extensive criminal
record, including drug offenses and domestic violence, and suffers from a
mental and emotional disorder that impairs his ability to communicate and
exercise good judgment.  The court in that case found that father has
resisted treatment for his mental health issues.  On appeal, this Court
affirmed, rejecting father’s claim that he received ineffective assistance of
counsel.  In re M.B. & K.B., No. 2011-347, 2012 WL 390688 (Vt.
Jan. 26, 2012) (unpub. mem.),
http://www.vermontjudiciary.org/d-upeo/upeo.aspx.  
¶ 3.            
K.F. was born in April 2011.  Father was incarcerated shortly
thereafter.  He was subsequently released subject to conditions
prohibiting him from having contact with K.F.’s mother.  Mother had also
obtained a relief-from-abuse (RFA) order that prohibited father from having contact
with her.  K.F. was taken into the custody of the Department for Children
and Families (DCF) in July 2011 based on an emergency care order.  The
factual basis was that mother and K.F. were in father’s apartment in violation
of the RFA and father’s conditions of release, as well as in violation of
mother’s own conditions of release, and that K.F. was placed at risk of
harm.  
¶ 4.            
K.F.’s mother subsequently admitted that K.F. was CHINS.  Following
a disposition hearing in December 2011, all parties agreed to concurrent case
plan goals of reunification with mother or TPR followed by adoption.  The
plan focused on K.F.’s mother because father was incarcerated and not
considered a potential placement.  Mother had significant mental health
issues that impaired her ability to care for herself and a child and the case
plan envisioned mother transitioning to the Lund Home where eventually K.F.
could be placed with her.  The reunification failed and K.F.’s mother
voluntarily relinquished her parental rights in April 2012.  
¶ 5.            
DCF petitioned to terminate father’s parental rights and the trial court
held a final hearing in July 2012.  At the beginning of the hearing,
father told the court that he was receiving ineffective assistance of counsel.[1]  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.  
¶ 6.            
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.  
¶ 7.            
As to the alleged conflict, she stated that she had never been a foster
parent, but five years previously had adopted a child who had been in DCF
custody.  She said that she did not meet the child until after the prior
parents’ rights were terminated, and was not involved at all in the proceedings
to terminate their rights.  She confirmed that she had no current relationship
with DCF.  The court found no basis to remove counsel and the termination
hearing proceeded. 
¶ 8.            
Following the hearing, the court made the following findings by clear
and convincing evidence, all of which are supported by the record.  Father
had been incarcerated for all but sixty-one days of the approximately sixteen
months since K.F.’s birth and had no expectation as to the date of his
release.  Father did not engage in any parenting of K.F. during his
incarceration.  During the period when father was in the community, he had
limited contact with K.F., seeing him approximately three times for one or two
hours each, totaling no more than three-to-six hours.  That was the extent
of father’s relationship with the child.  
¶ 9.            
The court found in the prior TPR proceeding involving father’s two older
children that father had significant mental health issues that led to a
predisposition to anger as a first response to disappointment and interfered with
his own welfare and stable living.  He also had a history of domestic
violence, periods of repeated incarceration, and a chaotic life, lacking
fundamental stability. 
¶ 10.        
While in jail, father did not engage in counseling or mental health treatment. 
Before father’s incarceration in July 2011, he did see a counselor, and that
counselor testified that father impressed her as intelligent, motivated,
sincere, and pleasant.  However, that counselor had never done any
diagnostic testing in her career, was not treating father for any specific
mental illness or diagnosis, and was serving more in the role as support person
for father.  The court found that the testimony of father’s counselor, and
father’s appropriate behavior during the termination hearing, did not negate
the findings from the prior TPR decision that father has a serious mental
illness.  
¶ 11.        
K.F., in the meantime, had been living in a foster home with a family that
was prepared to adopt him since September 2011.  He was well adjusted to
the placement and had a strong loving bond with his foster siblings, his
parents, and members of the extended family.  
¶ 12.        
At trial, father’s plan was for K.F. to remain in foster care and for
mother to ultimately retain custody of K.F. so that all three could be
reunited.  
¶ 13.        
On the basis of these and other findings, the court concluded that
father had not improved in his ability to parent K.F. and that this stagnation
amounted to changed circumstances.  As to the child’s best interests, the
court found that father had had no personal contact with K.F. in fourteen of
the child’s sixteen months since birth, and had no current, constructive role
in the child’s life.  The court concluded that even if father was released
from jail, he had significant other obstacles to address—including obtaining
mental health treatment and housing—before being able to care for K.F.  
¶ 14.        
The court explained that father was not a “bad man,” but, rather, was a
man who had many challenges in his life and who continued to experience mental
illness that prevented him from providing safe and appropriate care to the
child.  The court stated: 
  For all of his affection for and
interest in [K.F., father] cannot provide for him, in the form of his presence,
guidance, care and emotional support. . . . Even if [father]
were no longer to be incarcerated, he would face significant and serious
personal issues that as shown by this record, would prevent him from assuming
and exercising a custodial parent’s role for [K.F.] within any reasonable time
period as relates to [K.F.’s] development and best interests.
Moreover, the court concluded that
father’s proposed plan, which relied on mother to take custody of the child
after a period of further foster care, was not possible because mother had
relinquished her parental rights.  
¶ 15.        
On the other hand, the court found that K.F. needs a safe, committed
environment now and that K.F. has loving bonds to his foster parents and family
that should not be disrupted.  Thus, the court concluded that father would
not be able to resume parenting K.F. within a reasonable period of time as
measured from K.F.’s perspective, and granted termination.  
¶ 16.        
On appeal, father does not challenge the court’s findings or
conclusions.  He argues that the court erred in denying his request for
replacement counsel due to counsel’s alleged conflict of interest.  Father
also argues that his counsel provided ineffective assistance warranting
reversal.  
¶ 17.        
As to his request for replacement counsel, father alleges that his
counsel’s adoption of a child from DCF five years ago created a conflict that
mandated her removal.  In support, father cites Vermont Rule of
Professional Conduct 1.7.  According to father, his lawyer’s prior
adoption of a child who had been in DCF custody made the lawyer sympathetic to
DCF and unable to provide zealous representation to father.  
¶ 18.        
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.
 
¶ 19.        
In a prior case, we addressed whether a judge who was an adoptive parent
was disqualified from adjudicating whether adoptees were entitled to disclosure
of adoption information.  In re Margaret Susan P., 169 Vt. 252, 733
A.2d 38 (1999).  We rejected the conflict claim, explaining that “[w]e do
not believe that personal and family circumstances are appropriate
considerations on which to presume bias or partiality.”  Id. at
256-57, 733 A.2d at 42.  Similarly, here, the simple fact of counsel’s
family circumstances without any showing of a current connection to DCF or this
case was an insufficient reason to presume counsel’s ability to represent
father, and the court did not abuse its discretion in denying father
replacement counsel on this basis.  See V.R.F.P. 15(f)(2)-(3) (allowing
court to grant appointed counsel’s motion to withdraw when there is conflict of
interest or “good cause” is shown).
¶ 20.        
Moreover, the record does not support father’s suggestion that his
lawyer’s presumed sympathy for DCF undermined her zeal in representing
him.  The record supports the trial court’s findings concerning his
counsel’s representation:
It
is the observation of the court that counsel’s . . . conduct as
[father’s] attorney serves to confirm her representation to the court that she
had conferred adequately with [father] and was prepared to provide effective
representation for him in the course of the proceedings. Counsel engaged fully
in asserting objections to examination of witnesses and introduction of
exhibits, with reasoned and lawful basis; she engaged in effective examination
and cross examination of witnesses; she presented reasoned and detailed
argument with reference to the record as to the case outcome urged on behalf or
[father].  She conferred with [father] throughout the proceedings in the
courtroom. Opportunity was provided for [father] to communicate with his
attorney as to any specific concerns that he appeared to have from time to
time, and for his attorney to then communicate to the Court those concerns, or
positions on [father’s] behalf as she might choose.  
 
¶ 21.        
Next, father argues that he received ineffective assistance of counsel
and is entitled to a new hearing.  This Court has yet to address the
question of whether an ineffective-assistance-of-counsel claim may be raised to
challenge a TPR decision.  See In re M.B., 162 Vt. 229, 233 n.3,
647 A.2d 1001, 1003 n.3 (1994) (rejecting father’s ineffective assistance
claim, but expressing no opinion “on viability of such a claim, or of the
appropriate procedure to hear it”).  The standard for evaluating a claim
of ineffective assistance of counsel in the context of a criminal proceeding is
well established.  “To establish a claim of ineffective assistance of
counsel, the father must show by a preponderance of the evidence that (1)
counsel’s conduct fell short of the prevailing standard of a reasonably
competent attorney, and (2) this incompetence was sufficiently prejudicial to
create ‘a reasonable probability’ of a different result.”  Id. at
234, 647 A.2d at 1004 (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)).  
¶ 22.        
As we have done previously, we do not decide in this case whether a
parent in a TPR case has a statutory or constitutional right to challenge the
effectiveness of counsel because we conclude that even if such a challenge can
be brought, and even accepting for the sake of argument father’s allegations
about counsel’s shortcomings, father in this case cannot meet the Strickland
standard.  See In re S.W., 2008 VT 38, ¶ 7, 183 Vt. 610, 949
A.2d 442 (mem.) (declining to reach question of whether ineffective-assistance
claim could be brought where mother had failed to show counsel’s performance
was below standard of practice or that she was prejudiced by any incompetence).[2]  
¶ 23.        
We consider each of the specific actions, or alleged inactions, father
raises in support of his claim of ineffective assistance.  First, he
reiterates his claim that his lawyer had a conflict of interest.  We have
addressed the conflict question above.  
¶ 24.        
Second, father argues that counsel: failed to present evidence to rebut
certain findings about the scope of his criminal history made by the court in
the prior TPR decision involving his older two children and adopted by the
trial court in this case; failed to adequately pursue a kinship placement in
his family and to highlight DCF’s failure to explore certain kinship placements
within his family; did not present evidence that, by handwritten note allegedly
passed by mother to father during the hearing, and then presented to father’s
lawyer, mother recanted her prior allegations of sexual assault and burglary by
father; and failed to sufficiently challenge the DCF caseworker’s bias against
father.
¶ 25.        
In support of his arguments, father relies heavily on items not in the
record before the trial court.[3] 
Father has submitted a Vermont criminal history report, seeking to demonstrate
that father did not have as extensive a criminal history, or one involving
drugs or domestic violence, as found by the court in the prior TPR involving
father’s older children.  Father also submits several DCF policy
statements in arguing that the caseworker did not adequately pursue possible
kinship placements for K.F.  Finally, father submits a purported
handwritten note from mother to father, as well as an affidavit signed by mother
after the trial, to demonstrate that K.F.’s mother recanted her
allegations of sexual assault against father. 
¶ 26.        
The State has moved to strike portions of father’s printed case because
the information was not part of the record considered by the family
division.  In the alternative, the State seeks to supplement the record
with evidence from the prior TPR decision involving father’s older
children.  Ordinarily, this Court’s “review is confined to the record and
evidence adduced at trial.”  Hoover v. Hoover, 171 Vt. 256, 258,
764 A.2d 1192, 1193 (2000); see V.R.A.P. 10(a) (confining record on appeal to
items filed in trial court, court docket entries, and any transcript of
proceedings below).  Because the items proffered by father were not
admitted below, we grant the motion to strike these portions of father’s
printed case.  See In re Estate of Perry, 2012 VT 9, ¶ 13, 191
Vt. 589, 39 A.3d 1060 (mem.) (granting motion to strike affidavits not filed
with trial court).
¶ 27.        
However, even considering father’s submissions as a proffer of the
evidence he would muster in support of his ineffective-assistance claim, father
cannot establish an ineffective-assistance claim on this record.[4]  In re S.W., 2008 VT 38,
¶ 7 (rejecting ineffective-assistance claim where parent failed to show
that any ineffectiveness affected outcome of proceeding).  
¶ 28.        
The court’s termination decision was based on its conclusions that
father’s progress had stagnated and that termination was in K.F.’s best
interests.  None of the evidence proffered by father alters the findings
that support these conclusions.  The proposed evidence does not negate the
finding that father had a criminal history, including a conviction for
assaulting a domestic partner, or that his former partner had obtained an RFA
order against him.  Whatever the extent and nature of father’s criminal
record, the court’s unchallenged finding was that father was incarcerated for
most of K.F.’s life, was not bonded with K.F., and lacked the skills to parent
K.F.  In addition to father’s incarceration and the uncertainty of his
release at the time of the final hearing, the court found that other
challenges—such as father’s lack of housing, need for mental health treatment,
and need to gain and exercise appropriate self control—were barriers to
father’s ability to parent K.F. within a reasonable period of time.  For
these reasons, we conclude that even if his lawyer had introduced evidence that
the scope of father’s criminal record was somewhat less extensive than found by
the trial court, that evidence would not have altered the findings on which the
trial court based its decision to terminate father’s parental rights. 
¶ 29.        
As to the kinship placement,[5]
the availability of such a possible placement does not impact the court’s
critical unchallenged finding—that father would not be able to parent K.F.
within a reasonable period of time.  We have explained that DCF’s
diligence in locating a kinship placement
is not relevant to the court’s decision at a termination hearing.  In assessing whether to terminate
father’s parental rights, the trial court was not required to make specific
findings on the potential parental fitness of father’s other family members.
 See In re S.W., 2008 VT 38, ¶ 13 (rejecting father’s argument
that DCF’s failure to more actively pursue kinship placements precluded
termination).  The only issues before the court at termination are whether
there has been a substantial change in material circumstances and whether
termination is in the child’s best interests.  Id.  Having
concluded by clear and convincing evidence that termination of father’s
parental rights was in K.F.’s best interests, the court was not required to
address possible alternative placements for the child.  In re T.T.,
2005 VT 30, ¶ 7, 178 Vt. 496, 872 A.2d 334 (mem.).  Evidence about
potential kinship placements within his family would have been, accordingly,
irrelevant to the court’s decision.
¶ 30.        
Assuming for the purposes of this discussion that mother did pass father
a note mid-trial recanting certain criminal allegations against him, and that
he passed it to his lawyer, the question of whether to offer that evidence at
trial was a strategic judgment for the lawyer to make.  See State v.
Tribble, 2012 VT 105, ¶ 54, ___ Vt. ___, ___ A.3d ___ (“The
defendant . . . must generally defer to the attorney’s
exercise of professional judgment concerning most of the everyday decisions at
trial.”).  Mother’s allegations against father were not a central issue in
the case.  Father’s lack of relationship with the child, his ongoing
incarceration, his lack of parenting skills, the various obstacles to his
ability to resume a parental relationship, and the child’s need for stability
and adaptation to the family with whom he had spent most of his life were the
focus of the evidence.  The alleged recantation was handwritten, unsworn,
and itself potentially suspect given mother’s situation and the fact that the
purported communication came not through counsel but through mother directly to
father.  Given these circumstances, we conclude that counsel’s judgment
not to seek to introduce the alleged recantation could not have supported an
ineffective assistance claim.  
¶ 31.        
Finally, father faults his lawyer for not thoroughly exploring the DCF
caseworker’s antipathy to him.  The transcript reflects that father’s
lawyer thoroughly and aggressively cross-examined the DCF caseworker on a host
of subjects, including extensive questioning on her failure to pursue kinship
placements within father’s family.  In fact, the trial court sustained an
objection at one point that counsel’s questioning of the witness was
argumentative.  Given this record, father cannot demonstrate that his
lawyer failed to appropriately raise questions about the caseworker’s
testimony.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 32.        
DOOLEY, J., concurring.   I concur, in large part
because we are referring the issue of how we or the trial courts should address
procedurally an ineffective-assistance-of-counsel claim in a termination of
parental rights (TPR) case should we agree that such a claim is
available.  I stress that I have not yet decided that we should allow
ineffective-assistance-of-counsel claims in TPR cases.  In making the
referral to the family rules committee, I am stating my skepticism that there
is a way to determine whether the assistance of counsel is ineffective in a
timely way that is consistent with the permanency needs of the child should
termination be upheld.  My skepticism arises out of our deficient record
in resolving ineffective-assistance-of-counsel claims in criminal cases.
¶ 33.        
We allow ineffective-assistance-of-counsel claims in criminal cases only
in post-conviction relief (PCR) proceedings that collaterally attack the
conviction.  We have seen many of these cases on appeal.  Some are
resolved on summary judgment—the equivalent to the claims in TPR cases that
would require no factual development.  But many are not.  Last year,
we saw one that had remained in the superior court for nine years, see In re
Crannell, 2012 VT 85, ___ Vt. ___, 60 A.3d 632, and never moved beyond
disputes over whether the petitioner would receive appointed counsel in the
PCR.[6] 
It is not unusual to see such cases take three years in the trial court. 
See In re Combs, 2011 VT 75, ¶ 2, 190 Vt. 559, 27 A.3d 318 (mem.). 
Combs is an example of how protracted PCR proceedings can become. 
In that case, this Court has twice reversed superior court judgments for the
state, and the case is again in the trial court.
¶ 34.        
The extended time period it requires to resolve claims of ineffective
assistance of counsel is inevitable in many cases because of the nature of the
petitioner’s burden of proof.  Petitioner must show that the assistance of
the lawyer in the PCR fell below the standard of effectiveness of reasonably
competent counsel.  See In re Russo, 2010 VT 16, ¶ 16, 187 Vt. 367,
991 A.2d 1073 (laying out test for ineffective assistance of counsel).  In
most cases, the petitioner may do so only through an expert witness.  See In
re Grega, 2003 VT 77, ¶ 16, 175 Vt. 631, 833 A.2d 872 (“Only in rare
situations will ineffective assistance
of counsel be presumed without expert
testimony.”).  At best, locating, recruiting and preparing such a witness
will take months.  Even a court wholly committed to expediting these cases
will find it impossible to prevent extended delay.  I am drawn to the
procedure implemented in cases like New Jersey Division of Youth &
Family Services v. B.R., 929 A.2d 1034 (N.J. 2007), that create a very
short time limit in which to make a full evidentiary presentation of the
ineffective-assistance-of-counsel claim, but find that time limit wholly
inadequate to prepare and present a meritorious claim.  Indeed, the short
time limit predetermines the result; it can be honored only for ineffective
ineffective-assistance-of-counsel claims.  
¶ 35.        
Perhaps the Advisory Committee on Rules for Family Proceedings can find
an answer to my concerns, and I look forward to the results of its work. 
But if the answer is to import our track record on addressing
ineffective-assistance-of-counsel claims from criminal cases to TPRs, I am
unlikely to be persuaded that we should open this door at all.  
¶ 36.        
I am authorized to state that Justice Burgess joins this concurrence.

 


 


 


 


 


 


 


 


Associate Justice

 
 





[1] 
This was not father’s first request for new counsel.  In fact, father’s
counsel at trial was his fourth assigned attorney.  Father first moved for
a new attorney in August 2011, after which that attorney requested leave to
withdraw.  The court granted the request and assigned new counsel.
 Father moved again for a new attorney in January 2012, after which his
lawyer sought leave to withdraw.  The court granted the request and
assigned a third attorney, who withdrew a few days later.  Father’s
fourth, and final, attorney—whose representation forms the basis for father’s
appeal—was assigned in February 2012.  In June 2012, father again moved
for new counsel, but he withdrew the motion at a hearing in July 2012. 


[2]
 Although we have not yet decided whether parents facing termination of
their parental rights have a statutory or constitutional right to challenge the
effectiveness of counsel, we are mindful that our statutes and rules currently
do not prescribe any procedure for addressing such claims of ineffective
assistance in the event that they are cognizable.  Many courts allow or
require parents to raise a claim of ineffective assistance on direct appeal,
subject to the possibility of remand for an expedited evidentiary hearing if
the appellate court concludes that one is required.  See, e.g., N.J.
Div. of Youth & Family Servs. v. B.R., 929 A.2d 1034, 1040 (N.J. 2007)
(where ineffective assistance claim not resolvable on basis of appeal record
alone, appeal court should remand to trial judge for expedited hearing within
fourteen days, followed promptly by oral decision on record and appellate
briefing within seven days).  Other courts have approved the use of
post-judgment motions as the appropriate method to raise ineffectiveness
claims.  See, e.g., Ex parte E.D., 777 So. 2d 113, 116 (Ala. 2000)
(ineffective assistance claims can be made through post-judgment motions
pursuant to civil rule 60(b)(6)).  We refer to the Advisory Committee on
Rules for Family Proceedings the question of what procedure would apply if we
concluded that parents in TPR cases had a legal right to effective
counsel.  That committee should propose a rule that best ensures finality
and timely resolution of TPR claims consistent with parents’ legal rights.


[3] 
Of course, one reason an ineffective-assistance claim generally cannot be
brought on direct appeal in a criminal proceeding is due to the need to develop
an evidentiary record to support the claim.  See State v. Davignon,
152 Vt. 209, 222, 565 A.2d 1301, 1308 (1989). 


[4] 
For purposes of this analysis we do not reach the question of whether counsel’s
failure to offer this evidence at trial actually amounted to conduct that fell below
a reasonable standard of competence.


[5] 
We note that the matter of the availability of kinship placements was litigated
at trial, and in its decision, the family court concluded that DCF had engaged
in reasonable efforts to identify and investigate potential kinship placements,
including one of father’s sisters.  


[6] 
I am also concerned that the battle over providing representation will migrate
to TPR cases and eat up major time.



