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Tuesday, June 18, 2013

How Effective Must Lawyers Be in Family Law Cases?

At risk of inspiring more "breeder" comments, I wanted to write about a very interesting recent decision from the Vermont Supreme Court  (h/t to mike frisch of legal profession blog). The court was considering an ineffectiveness of counsel claim in a termination of parental rights proceeding. The court found that counsel was not ineffective. The more interesting question, left unanswered but highlighted by the concurrence, is whether ineffectiveness claims should be allowed in termination of parental rights cases at all.

The criminal system, and potential incarceration or even execution, are undoubtedly punitive. But so is severing all legal ties to your child, often so that he or she can be adopted by another family, leaving you with no further contact. The tremendous impact of termination proceedings led the Supreme Court to mandate they be decided by clear and convincing evidence.  The disproportionate power between the state and the defendant (parent) is reminiscent of that in the criminal system.  (A number of people have written about the flaws and inequities towards certain types of parents including me in Parsing Parenthood; Marty Guggenheim in a bunch of things including Somebody's Children; Clare Huntington in Rights Myopia in Child Welfare;  Josh Gupta-Kagan in Filling the Due Process Donut Hole; and I could go on and on). This imbalance means that a zealous advocate can often be essential to prevailing against the might of the state.

Yet most states do not recognize this doctrine in the family law context--why? One significant reason is the ticking clock of the child's need for a 'permanent' family. Federal law requires that termination proceedings be brought in a certain period of time, so that a child may be freed for adoption. (There are significant flaws in this framework, however, as many thousands of children whose parents' rights are terminated are not adopted, and will never be, leaving them to age out of foster care "legal orphans.")  In the Vermont case, I don't think it was a coincidence that the child was very young, under 2 years old I think, and was placed in a loving pre-adoptive home. Reopening the father's termination proceeding would disrupt that new family, and possibly deter future adoptive parents, who were seeking certainty. As the concurrence there stated: "I stress that I have not yet decided that we should allow ineffective-assistance-of-counsel claims in TPR cases. [and] 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[.]"

I am also on the fence about this one.  Many parents have deficient counsel in termination proceedings, as many defendants do in criminal proceedings, and it is horribly unfair that someone would be forever separated from his child because of this. On the other hand, allowing relitigation of terminations can and will disrupt adoptive or other permanent families for many children.

Posted by Cynthia Godsoe on June 18, 2013 at 10:58 AM | Permalink


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It seems to me the ticking clock problem arises *after* the initial trial, not before (which is what the Speedy Trial Clause is concerned with). In criminal cases, there is "time" to relitigate effectiveness-of-counsel after the trial is over, because nothing is awaiting the outcome (except perhaps execution in capital cases). So there is no harm (other than to finality and resources) in relitigating and even in having to do the trial over. In TPR cases, the clock is ticking on the child and the adoptive family to be adopted; they are harmed by having to relitigate and do it over again.

Posted by: Howard Wasserman | Jun 18, 2013 1:13:30 PM

Terrific post, Cynthia. And what a tragic state of affairs, no matter who is right.

But I'm curious about your point about ticking clocks. It's surely true that many children -- perhaps even most -- will benefit from an expeditious resolution of the custody question. But isn't there also a ticking clock in criminal law? Ignored or easily elided as it may be, doesn't the Speedy Trial Clause likewise call for a quick (if not hasty) resolution? Or is that analogy daft?

Posted by: SparkleMotion | Jun 18, 2013 1:03:14 PM

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