In re K.F.

Citation2013 VT 39,72 A.3d 908
Decision Date26 June 2013
Docket NumberNo. 12–340.,12–340.
PartiesIn re K.F., Juvenile.
CourtUnited States State Supreme Court of Vermont

OPINION TEXT STARTS HERE

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.

ROBINSON, J.

¶ 1. 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., No. 2011–347, 2012 WL 390688 (Vt. Jan. 26, 2012) (unpub.mem.), http:// www. vermont judiciary. 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...

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  • In re C.L.S.
    • United States
    • United States State Supreme Court of Vermont
    • April 9, 2021
    ...raise such claims on direct appeal in termination-of-parental-rights cases, and we have considered them on their merits. See, e.g., In re K.F., 2013 VT 39, ¶ 22, 194 Vt. 64, 72 A.3d 908 (affirming termination of father's parental rights because even assuming that parents have right to effec......
  • In re C.L.S.
    • United States
    • United States State Supreme Court of Vermont
    • April 9, 2021
    ...raise such claims on direct appeal in termination-of-parental-rights cases, and we have considered them on their merits. See, e.g., In re K.F., 2013 VT 39, ¶ 22, 194 Vt. 64, 72 A.3d 908 (affirming termination of father's parental rights because even assuming that parents have right to effec......
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    • August 7, 2015
    ...that termination of a parent's rights does not depend on the availability of a permanent placement option for the child. See, e.g., In re K.F., 2013 VT 39, ¶ 29, 194 Vt. 64, 72 A.3d 908 (explaining that in deciding whether to terminate father's rights, court was not required to make finding......
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    • December 6, 2019
    ...request. While acknowledging that this Court's review is ordinarily confined to the record in the trial court proceedings, see In re K.F., 2013 VT 39, ¶ 26, 194 Vt. 64, 72 A.3d 908, the District argues that this is one of those rare cases where we should accept the emails as part of the rec......
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