Just a few months ago a mother agreed to an adoption of her child. Unbelievably this has so far resulted in the following order being 'depublished':
"....We confirm prior Arizona law holding that ineffective assistance of appointed counsel may constitute reversible error in the severance context. We further hold that for assistance of appointed counsel to withstand constitutional scrutiny, it must satisfy standards of fundamental fairness."
It is not however 'vacated.'
Nor 'initially' was the following (this is a final effort recognising the urgency of gettign something 'published' concerning an opinion that was obviously in part inspired by the attention the Times article brought to an opinion last May. My first draft correctly recognised the duty judge as abusing his discretion. Subsequently it appeared i had missread who had vacated first seven then seventeen paragraphs and somehow I confirmed that I was wrong, that it was the author in fact who had done that.... so I apologise to that author for my levity a few minutes/months ago here):
----------------------this must again be the law of this land!----------
P28 Instead, the inquiry should be focused on the quality of assistance required to satisfy due process; that is, what fundamental fairness demands in a particular situation. See Lassiter, 452 U.S. at 24-25. The benchmark of fundamentally fair procedure is whether an individual whose interests are at stake has the opportunity to be heard at a meaningful time in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Therefore, to be effective such that the standards of due process are met in a termination proceeding, appointed counsel's representation must have provided the parent with the opportunity to have been heard meaningfully. See In re Geist, 310 Ore. 176, 796 P.2d 1193, 1205 (Or. 1990); In re J.C., Jr., 781 S.W.2d 226, 228 (Mo. App. 1989); In re Moseley, 34 Wn. App. 179, 660 P.2d 315, 318 (Wash. App. 1983). Factors to consider in determining whether representation meets the standards of due process include counsel's: active participation in every critical stage of the proceedings; investigation of the procedural and factual history of the case; contact with the client; contact with witnesses prior to the hearing; review of documents pertaining to the case and [*22] the case file; and efforts at procuring evidence in support of the parent's defense. See Resource Guidelines at 22-23. This is not intended as an exhaustive list. The standard remains: if counsel's assistance or lack thereof deprived the parent an opportunity to be heard meaningfully, the parent received ineffective assistance of counsel.
P29 The above considerations do not mean the court should second-guess the unsuccessful strategies of trial counsel with the benefit of hindsight. See Strickland, 466 U.S. at 689-90. Omitted futile acts and reasoned tactical decisions in and of themselves will not form the basis of a successful claim for ineffective assistance of counsel in termination proceedings. See State v. Meeker, 143 Ariz. 256, 262, 693 P.2d 911, 917 (1984) ("disagreements as to trial strategy or errors in trial tactics will not support an effectiveness claim so long as the challenged conduct could have some reasoned basis"); In re T.M.F., 573 A.2d at 1045 ("Trial counsel should be excused for not doing a useless act and wasting the time of the court and the expert."); Geist, 796 P.2d at 1205 (parent's "generalized, after-the-fact critique of . . . counsel's tactical decisions" [*23] rejected as basis for claim of ineffective assistance of counsel in termination hearing).
P30 In rejecting the Strickland prejudice standard, we recognize that other courts that have adopted a "fundamental fairness" standard for evaluating claims of ineffective assistance of counsel are divided about requiring a showing of prejudice parallel to that in Strickland. See Calkins at 226-28. We decline to adopt this additional requirement for several reasons.
P31 First, in criminal proceedings, the defendant enjoys greater procedural protections, including a higher evidentiary burden (beyond a reasonable doubt) and the availability of post-conviction relief. Calkins at 231. These practical protections do not exist in the scope of parental termination proceedings. Thus, ineffective assistance of counsel is more likely to undermine the reliability of the final judgment in severance proceedings. Adding a requirement to show Strickland prejudice would be an unnecessary hurdle to ensure the reliability of the final judgment. See Strickland, 466 U.S. at 694-95 (showing of prejudice must undermine confidence in the outcome of the case in light of burdens of proof and totality of evidence). Second, [*24] the ultimate goal is a fair trial. If counsel is ineffective, no fair trial has been received and the prejudice is the lack of a fair trial. Calkins at 230. Third, it is untenable that, upon a showing that counsel's performance was so deficient the parent was deprived of an opportunity to be heard in adversarial proceedings, she would not be able to establish that she suffered prejudice from a decision rendered without her interests voiced in a meaningful manner. See supra P 27.
P32 Finally, in severance proceedings we have the additional interest in expedited determination of a permanent placement for the innocent child. See T.M.F., 573 A.2d at 1041. Criminal procedural protections against ineffective assistance of counsel would severely infringe on that interest. In criminal proceedings, a claim for ineffective assistance of counsel can only be established after the judgment becomes final because, before that time, a defendant could not show actual prejudice resulting from the representation. See State ex rel. Thomas v. Rayes, 211 Ariz. 411, 414, P13, 214 Ariz. 411, 153 P.3d 1040, 1043 (2007). Thus, if there is ineffective assistance of counsel in a criminal trial, after having gone through a full [*25] trial, the judgment is vacated and the case must be retried. Such prolonged proceedings would detract from the interest in expedited permanent placement of a child.
P33 Our reasoning does not mean that appellate courts should assume or readily find ineffective assistance of counsel simply because a parent in a severance proceeding on appeal can point to isolated instances of alleged failures of counsel to possibly adequately communicate with the client or to diligently prepare for trial. In those cases, a parent and the juvenile court may have a number of means to effectively create a record as to ineffective assistance of counsel prior to appellate review, including any party raising that issue before the superior court at the appropriate time or newly appointed appellate counsel seeking post-trial relief to have the superior court determine whether counsel's representation was so deficient as to deny the parent an opportunity to be heard meaningfully. See Ariz. R. P. Juv. Ct. 88(D) (permitting appointment of new appellate counsel in discretion of juvenile court presiding judge) and 46(E) (authorizing motions to set aside judgment in juvenile proceedings similar to motions under Ariz. R. Civ. P. 60). [*26] n7 As explained below, these alternative proceedings to determine ineffective assistance of counsel are unnecessary here because we conclude the record is clear, if not overwhelming, that Mother's counsel was ineffective.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7
Alternatively, an appellate court could remand the matter to the juvenile court for evidentiary hearings and findings on the effectiveness of appointed counsel. See Ariz. R. P. Juv. Ct. 88(F) and 91(F); In re Condry's Estate, 117 Ariz. 566, 568, 574 P.2d 54, 56 (App. 1977). In JS-4942, we reversed and remanded the matter to the juvenile court for an evidentiary hearing to determine whether the parent had received adequate notice of the hearings against him and whether the parent had received effective assistance of counsel. 142 Ariz. at 242, 689 P.2d at 185. Given the need for expediency of a final determination in establishing permanency for the child, we disapprove of this approach in cases such as this when the only issue is the effectiveness of counsel's assistance and the record showing ineffective assistance is overwhelming.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
P34 Mother argues her trial counsel did not engage in adequate preparation for the termination hearing, and that the record in [*27] fact demonstrates he did nothing beyond appearing in court at the appointed date and time of the hearing. Mother further points out that presenting only Mother's testimony was grossly inadequate to refute the case manager's testimony that Mother had not participated in any services.
P35 We hold that counsel's representation did not pass constitutional muster. As of December 2005, Mother had stated to counsel that she had participated in urinalysis screening. Apparently counsel did nothing to procure documentation of that screening; instead, he asked her to provide that documentation during his direct examination of her at the termination hearing. Likewise, counsel for Mother asked her to procure documentation of participation in counseling services on the date of the hearing, but apparently did nothing to obtain verification of those services on his own. Meanwhile, CPS, the party moving for termination of Mother's rights, verified Mother's participation in counseling services. Likewise, as counsel made a point of asking Mother whether she had called him to ask him to subpoena witnesses, it does not appear that counsel performed any independent investigation to determine what witnesses [*28] he could call in addition to Mother in her defense. n8 This, combined with counsel's apparent unfamiliarity with the case - as demonstrated by the fact that he had to inquire as to the grounds alleged for termination before he cross-examined the State's witness n9 - raises serious questions as to what, if any preparation counsel engaged in prior to the termination hearing.
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If, as ADES alleges, the record indicated that counsel for Mother had decided not to call witnesses in addition to Mother, such decision in and of itself may have been a reasonable strategic or tactical decision that would not form the basis for an ineffective assistance of counsel claim. Given that the record is replete with statements by counsel indicating his lack of preparation prior to the hearing, the record indicates that this was not a conscious decision of counsel not to call witnesses.9
Counsel was apparently unfamiliar with the statutory grounds for termination as well, as he repeatedly referred to a "twelve-month ground" for termination. See A.R.S. � 8-533(B)(8) (grounds for termination based upon child remaining in out-of-home placement for nine or fifteen months).- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
P36 In addition, the record indicates that [*29] counsel did not maintain adequate contact with Mother. The record indicates counsel did apparently have some discussions with Mother between the time Child was found dependent and the time of the termination hearing. These discussions were apparently less than substantive, as, at the termination hearing, Mother had no understanding of the severance procedure and had to conduct her own research. In addition, the record reflects Mother did not learn the date and time of the termination hearing from counsel, even after she called counsel's office. Instead, an office assistant told her to call the court. Mother had to call the court a week prior to the hearing for that information.
P37 Equally troubling is counsel's conduct casting aspersion on Mother's diligence in remaining engaged with the proceedings. There is no apparent reason from Mother's standpoint why her counsel would raise her questionable sobriety at the outset of the December 2005 hearing and her apparent failure to attend a drug test at a subsequent hearing without the issue having been raised by any of the other parties. Furthermore, counsel's comment that, "I'm informed she is around because she does call the policemen [*30] occasionally" at the same hearing was unnecessary, derogatory, and further served to indicate that Mother was irresponsible when it came to maintaining contact both with himself and people in authority. Finally, when Mother testified as the only witness on her own behalf, counsel for Mother cross-examined her as to her contact with him, at times effectively testified as to whether he received messages from her, and then proceeded to lecture her about the necessity of producing documentation in her defense. Particularly problematic in the scope of this discussion was his remark that, if Mother did not produce documentation reflecting her participation in services, both he and the court would presume it did not exist. By so conducting himself before the court, counsel effectively acted as an advocate against Mother by propounding his own understanding of her neglect in the case. n10
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In analyzing this matter under the Strickland standard, both Mother and ADES have engaged in a prejudice analysis. While we have declined to adopt the Strickland test, we have weighed all of the factors and conclude that even if a Strickland prejudice element was required, the overwhelming evidence of ineffective [*31] assistance of counsel here leads us to conclude that Mother was prejudiced and we have no confidence in the outcome of the case and final determination based on counsel's deficient performance. See 466 U.S. at 687, 694-95.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
P38 In proceedings where the weight of the government, in addition to Father's interests, and potentially the position of Child, were against her, the only advocate to whom Mother could look to speak for her was her appointed counsel. Counsel has an ethical obligation to represent competently and with reasonable diligence and to maintain proper communication with the client. Ariz. Supreme Court Rule 41, E.R. 1.1, 1.3 and 1.4. When her counsel did not undertake the efforts necessary to speak meaningfully on her behalf, and instead actually spoke against her, the juvenile court became an inquisitorial, rather than adversarial, system of prosecution directed at her. This is not the means by which an accurate and just decision to terminate a parent-child relationship is procured under our system of justice. See Lassiter, 452 U.S. at 27-28. "Each party must be competently and diligently represented in order for juvenile and family courts to function effectively." Resource Guidelines at 22. [*32] We therefore hold, given Mother's trial counsel's ineffective representation, the proceedings to terminate her parent-child relationship were not fundamentally fair and vacate the severance order as to her.
P39 There is sufficient evidence to support the juvenile court's order terminating Father's parent-child relationship with Child. We cannot uphold the termination order as to Mother, however, because she did not receive effective assistance of counsel. When counsel is ineffective, the entire adversarial process is undermined and what can appear to be clear and convincing evidence to support termination of the parental relationship may be illusory. Accordingly, we affirm the order of the juvenile court insofar as it relates to Father, but vacate that order insofar as it relates to Mother and remand the matter to the juvenile court for further proceedings.