2013 VT 66


In re A.B. and A.B. (2012-322)
 
2013 VT 66
 
[Filed 02-Aug-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 66

 

No. 2012-322

 

In re A.B. and A.B., Juveniles


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Addison Unit,


 


Family Division


 


 


 


June Term, 2013


 


 


 


 


Helen
  M. Toor, J.


 

Michael Rose, St. Albans, for Appellant.
 
William H. Sorrell, Attorney General, Bridget C. Asay, Assistant Attorney General, Montpelier,
  and Jody Racht, Assistant Attorney General, Waterbury, for Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.   Mother appeals from the trial court’s
order terminating her residual parental rights in A.B. and A.B.  She
argues that the court erred in denying her request to represent herself, which
she made on the first day of the termination hearing.  We conclude that
the court acted within its discretion and therefore affirm.
¶ 2.            
Mother does not dispute the court’s findings and conclusions as to the
merits of the termination order.  We therefore briefly summarize the
facts.  A.B. and A.B. were born in June 2006 and January 2010,
respectively.  Parents struggled with mental health and domestic violence
issues.  There was also an ongoing issue with the children missing medical
appointments and one child being removed from daycare.  Father has
numerous convictions for domestic assault against mother, and parents continued
to see one another despite a no-contact order.  Father also has a
conviction for sexual assault involving a thirteen-year-old child, and he
failed to complete sex-offender counseling.  Mother has an assault
conviction and faced drug charges at the time of the termination hearing. 
¶ 3.            
The children were taken into the custody of the Department for Children
and Families (DCF) in June 2011 pursuant to an emergency care order, shortly
after parents failed to pick them up from a respite provider.  They were
adjudicated as children in need of care or supervision (CHINS) in July
2011.  While the children were in custody, mother missed numerous visits
with them.  When mother did visit, she engaged in inappropriate and
harmful conversation with the children.  Mother gave birth to a
methadone-addicted baby in February 2012 even though mother was not on a
prescribed methadone treatment regimen.  Mother was also evicted from her
apartment.  Mother did not complete a substance abuse assessment, and her
doctor terminated her psychiatric medications because mother refused to do
urine screens and pill counts.  Mother was extremely volatile with DCF
workers as well as with the children’s foster mother.  
¶ 4.            
In May 2012, DCF moved to terminate parents’ residual rights, and a
hearing was set for July 2012.  On the first day of the termination
hearing, mother informed her attorney that she was dissatisfied with her
representation.  Mother asked either for a new attorney or to be allowed
to represent herself.   Mother indicated
that she had been dissatisfied with her attorney since she was appointed in
June 2011.  When the court asked mother why she was raising this issue at
such a late date, mother replied that it was because she felt pressured into
voluntarily relinquishing her parental rights in another child (the infant born
in February 2012), and she felt that her concerns were not being
addressed.  
¶ 5.            
Mother’s attorney responded that she had been vigorously representing
mother, and that she had been actively involved in the case from the
beginning.  The court concurred.  It explained that if mother had
been unsatisfied with her attorney from the outset, mother should have brought
up this issue much earlier.  Instead, mother raised it at the very last
stage of the case—the hearing was about to commence, and witnesses were present
and ready to testify.  Accommodating such a request, the court continued,
would require rescheduling the termination hearing to the detriment of the
children, who had a very strong interest in having the case resolved.  The
court noted that mother’s attorney worked very hard on her cases and was well
prepared in those cases, and that there was no reason to expect anything
different in this case.  The court thus denied mother’s request for a new
attorney.  
¶ 6.            
Mother then stated that she wanted to represent herself.  In
assessing mother’s request, the court asked mother about her educational
background, whether she had any legal training, or had ever represented
herself.  Mother indicated that she had a high school education, no legal
training, and that she had never represented herself before in court. 
Mother stated that she had a vague awareness of the rules of evidence. 
Mother had never been employed.  Following this exchange, the children’s
attorney expressed concern that mother could not adequately represent herself
given her limited skills.  The court agreed, denied mother’s request, and
proceeded with the hearing.  
¶ 7.            
Following a two-day hearing, the court issued its order terminating
parents’ rights.  It found that mother had not complied with the DCF case plan
and that she could not provide the children with the safety and support that
they needed within a reasonable period of time.  Based on these and
numerous other findings, the court concluded that termination of mother’s
rights was in the children’s best interests.  Mother appealed from this
order.  
¶ 8.            
Mother argues that the court denied her the right to represent herself
at the termination hearing.  Mother does not identify the source of this
right or provide any legal authority to show that this right exists. 
Instead, mother appears to argue that the court was obligated to grant her
request because she expressed her willingness to assume the risk of
self-representation.  Mother maintains that her capacity to adequately
represent herself was irrelevant.  Mother suggests that the court’s denial
of her request was particularly harmful because she might have no opportunity
to raise an ineffective assistance of counsel claim given the current state of
the law.* 

¶ 9.            
We find no error.  In reaching our conclusion, we need not decide
if parents have a statutory or constitutional right to proceed
pro se in juvenile proceedings.  But see In re Chapman, 155 Vt.
163, 166, 581 A.2d 1041, 1043-44 (1990) (finding no federal constitutional
right to appear pro se in civil post-conviction review proceedings because the
right to self-representation derives from Sixth Amendment).  Assuming arguendo that such a right exists, the court acted within
its discretion in denying mother’s untimely request.  
¶ 10.         Even
in the criminal context, where the right to self-representation is
constitutionally based, a request to proceed pro se
“must be invoked in a timely fashion.”  State v. Bean, 171 Vt. 290,
297, 762 A.2d 1259, 1264 (2000) (observing that most courts have held that
right to self-representation in criminal cases must be invoked before trial to
be considered timely per se, and if invoked thereafter, trial court has
discretion in deciding whether to allow self-representation).  When such
requests are not timely made, courts must consider, among other things, the
potential for disruption and delay that would result from granting the
request.  Id. at 298, 762 A.2d at 1264-65. 

¶ 11.         This
concern is even more compelling in the juvenile context because any right that
a parent might have to proceed pro se must be weighed
against a child’s significant interest in the timely resolution of his or her
case.  See 33 V.S.A. § 5101(4) (stating that one of the paramount
concerns in the conduct of juvenile judicial proceedings is “timely permanency
for children”).  Other courts have expressed a similar sentiment. 
See, e.g., In re A.M., 79 Cal. Rptr. 3d 620,
628 (Ct. App. 2008) (recognizing that while parents have a statutory right to
proceed pro se in juvenile cases, this right “must always be weighed against
the child’s right to a prompt resolution of the dependency proceeding”). 
Mindful of this concern, courts have discretion to deny a parent’s request to proceed pro se where it is reasonably probable that granting
the request would “lead to undue delay in the proceedings that would impair the
child’s right to a prompt resolution of custody.”  Id.
at 628-29.
¶ 12.         In
this case, mother professed to have been unhappy with counsel since June 2011,
but she did not raise any issue about counsel’s performance until the first day
of the termination hearing, more than a year later.  At that point, the
hearing was about to begin and witnesses were present and ready to
testify.  Under these circumstances, the court properly considered
mother’s ability to immediately assume responsibility for her own case. 
It acted within its discretion in concluding that mother was not prepared to
represent herself and that any delay would impair the children’s right to a
prompt resolution of their custody status.  We are not persuaded to a
contrary conclusion by mother’s speculative concern about her ability to raise
an ineffective-assistance-of-counsel claim.  We find no error in the
court’s decision.  
Affirmed.  

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 







* 
Mother also argues that, to the extent that the court relied on its perceptions
of counsel’s performance in denying her request to proceed
pro se, it erred in doing so because an ineffective-assistance-of-counsel claim
cannot be measured by in-court performance alone.  The premise of mother’s
argument fails because the comments were not made in ruling on mother’s request
to proceed pro se.  We note, moreover, that if
mother had concerns about her attorney’s preparedness, she could have raised
those concerns to the trial court in a timely manner, before the first day of
the termination hearing.  



