In re L.H., 17–240
| Citation | 182 A.3d 612 |
| Decision Date | 12 January 2018 |
| Docket Number | No. 17–240,17–240 |
| Parties | IN RE L.H., L.H. and L.H., Juveniles |
| Court | United States State Supreme Court of Vermont |
Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Appellant Father.
Adele V. Pastor, Barnard, for Appellant Mother.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.
Michael Rose, St. Albans, for Appellees Juveniles.
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Teachout, Supr. J., Specially Assigned
¶ 1. This case requires us to consider whether a court may terminate parents' parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter. Mother and father separately appeal the court's order terminating their parental rights with respect to three of their daughters. We do not address many of their challenges to the trial court's findings and conclusions because we conclude that a conflict of interest by the State's counsel compromised the proceedings.
Accordingly, we reverse and remand for a new hearing.
¶ 2. The proceedings below involved four of parents' children, La.H. (the oldest child), born in June 2003, Ly.H., born in September 2007, Le.H., born in October 2009, and Li.H., born in September 2011.1 Two events were the immediate triggers for this case. In August 2014, in the presence of two of the children, father allegedly punched mother in the left eye, pulled her hair, and kicked her with boots on. In September 2014, DCF received a report that the three younger children were playing near a busy road unclothed and without adult supervision. DCF social workers went to the home and found food, dirty laundry, and trash all over the floor. The State filed a petition alleging the children were in need of care or supervision (CHINS). In October 2014, parents stipulated that the children were CHINS. The initial disposition order placed the children in mother's conditional custody. The case plan's concurrent goals were reunification with mother or adoption.
¶ 3. In April 2015, citing significant conflict and communications issues between the oldest child and mother, the court granted DCF custody of the oldest child; she was eventually placed with the foster family in New Hampshire with whom she had lived while in state custody in New Hampshire several years earlier. The three younger children remained with mother.
¶ 4. Due to continued concerns about the children's cleanliness and regression at school, the condition of the home, and mother's inability to manage the finances, the court modified the case plan in May 2015 to add reunification with father as an additional case plan goal.
¶ 5. In December 2015, the court granted the State's motion to place the younger three children in DCF custody based on chronic concerns that the children were not properly clothed for the weather, the home was unclean and smelling of urine, the children were not properly fed, and mother was not properly supervising the children. In June 2016, the court terminated visits between parents and the three younger children, finding by clear and convincing evidence that continued contact would be detrimental to the children.
¶ 6. The State moved to terminate parental rights to all four children. Following a multi-day hearing, the court concluded that there was a change of circumstances because parents' progress had stagnated. After conducting a best-interests analysis, the court terminated parental rights as to the younger children, and denied the State's termination of parental rights (TPR) petition as to the oldest.2 Parents appealed.3
¶ 7. The critical issue in this appeal is whether the trial court's decision is fatally compromised by a conflict of interest of the attorney representing the State. The facts related to this issue are as follows. Through March 2016, Attorney represented all four children. In April 2016, the juveniles were assigned a new lawyer. At a hearing on April 13, 2016, Attorney appeared in the case for the State. She presented the court with a letter signed by the juvenile's guardian ad litem consenting to her representation of the State in the case. Mother's attorney cited Vermont Rule of Professional Conduct 1.9 and raised concerns about Attorney's prior representation of the children.4 The following exchange took place:
Attorney responded that there was no conflict because the State and the juveniles had the same position on the termination petition, and if there was a conflict, the guardian ad litem could waive it. The court agreed that the juveniles and the State had the same position and further explained:
And the guardian for the children has waived any potential conflicts. So if there was going to be a conflict, it would have been with the children, who are former clients of [Attorney], not with the parents. I see no concern at all about any prejudice to the parent allowing [Attorney] to go forward representing the State, who by all reports and accounts are—is requesting the same thing as the children at this point.
¶ 8. For the reasons below, we conclude that parents do have standing to raise the conflict-of-interest issue, that Attorney's representation of the State after representing the children did give rise to a conflict of interest, that the conflict was not effectively waived in this case, and that prejudice resulted from the conflict requiring reversal.
¶ 9. We conclude that parents have standing to raise the issue of whether Attorney had a conflict due to prior representation of the children in this case. To demonstrate standing to bring a claim, a litigant "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct, which is likely to be redressed by the requested relief." Parker v. Town of Milton, 169 Vt. 74, 78, 726 A.2d 477, 480 (1998). "The injury [alleged] must be an ‘invasion of a legally protected interest,’ not a generalized harm to the public." Id. (citation omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Whether there is standing is a question of law we review de novo. Baird v. City of Burlington, 2016 VT 6, ¶ 11, 201 Vt. 112, 136 A.3d 223. Parents have a legally cognizable interest in their continued relationships with the younger children that is sufficiently impacted by Attorney's alleged conflicts of interest to support parents' standing to raise the issue. Our conclusion on this point is supported by Vermont law concerning appointment of counsel for parents and children in termination cases, persuasive decisions from other jurisdictions, and consideration of the State's role in abuse-and-neglect proceedings.
¶ 10. Vermont law recognizes the importance of a parent's interest in the parental relationship, and the provision of counsel for parents and children is one way the Legislature has sought to safeguard those rights. This Court has recognized that "a parent's right to the custody, companionship, and care of his or her children is an important interest warranting due process protection." In re S.C., 2014 VT 7, ¶ 5, 195 Vt. 415, 88 A.3d 1220. Thus, parents have a strong interest in "a fair and accurate termination decision." Id. As the U.S. Supreme Court has recognized, "until the State proves parental unfitness, the child and ... parents share a vital interest in preventing erroneous termination of their natural relationship." Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
¶ 11. The provision of counsel to both parents and children is required by statute and is an important part of ensuring that termination proceedings are conducted fairly and accurately. See In re M.T., 2017 VT 104, ¶¶ 7, 11, ––– Vt. ––––, 179 A.3d 754, 2017 WL 5015814 (); see also 13 V.S.A. § 5232(3) (); 33 V.S.A. § 5112(a) (); V.R.F.P. 6(b) (). The right to counsel, whether grounded in constitution or statute, contemplates an attorney without "conflicting interests or inconsistent duties." In re Darius G., 406 Ill.App.3d 727, 346 Ill.Dec. 634, 941 N.E.2d 192, 197 (2010) ()....
To continue reading
Request your trial
- Brown v. State
-
In re C.B.
...are entitled to assignment of counsel "when the court deems the interests of justice require" it); In re L.H., 2018 VT 4, ¶ 11, 206 Vt. 596, 182 A.3d 612 (recognizing that provision of counsel to parents "is required by statute and is an important part of ensuring that termination proceedin......
-
In re C.B.
...are entitled to assignment of counsel "when the court deems the interests of justice require" it); In re L.H., 2018 VT 4, ¶ 11, 206 Vt. 596, 182 A.3d 612 (recognizing that provision of counsel to parents "is required by statute and is an important part of ensuring that termination proceedin......
-
Review of the Year 2019 in Family Law: Case Digests
...objection.” Courts should conduct oversight hearings on medical treatment plans for minors every ninety days. Vermont. In re L.H. , 182 A.3d 612 (Vt. 2018). After the state terminated the parents’ rights, the parents appealed. The Supreme Court of Vermont held that the parents had standing ......