State ex rel. Juvenile Dept. of Multnomah County v. Geist

• Decision Date: 07 August 1990
• Citation: 310 Or. 176,796 P.2d 1193
• Parties: In the Matter of Geist, Khristina, Geist, Charles, Geist, William, Children. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Khristina Geist, Charles Geist, and William Geist, Respondents on Review, v. Debbie GEIST, Petitioner on Review. TC 86-518, 86-518A, 86-518B; CA A45355; SC S36325.
• Court: Oregon Supreme Court

Page 1193

796 P.2d 1193

310 Or. 176

In the Matter of Geist, Khristina, Geist, Charles, Geist William, Children STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY Khristina Geist, Charles Geist, and William Geist Respondents on Review, v. Debbie GEIST, Petitioner on Review.

TC 86-518, 86-518A, 86-518B; CA A45355; SC S36325.

Supreme Court of Oregon.

Argued and Submitted Dec. 14, 1989.

Decided July 17, 1990.

As Corrected Aug. 7, 1990.

[310 Or. 178-B] Angela Sherbo, Portland, argued the cause for petitioner on review Debbie Geist. With her on the petition were Julie H. McFarlane and Juvenile Rights Project, Inc., Portland.

Robert M. Atkinson argued the cause for respondents on review.

Alice Bussiere and Teresa Demchak, Nat. Center for Youth Law, Carole Shauffer, Youth Law Center, San Francisco, Cal., and Michael H. Marcus, Legal Aid Service, Portland, file a brief on behalf of amici curiae Nat. Legal Aid and Defender Ass'n and Oregon Human Rights Coalition.

Before PETERSON, C.J., and LINDE ^*, CARSON, JONES ^**, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

VAN HOOMISSEN, Justice.

Mother appeals from a circuit court order terminating her parental rights. Former ORS 419.523. ¹ We allowed review to consider her contention that the Court of Appeals erred in holding that it could not review her claim that her appointed trial counsel was inadequate. ² We hold that such claims may be reviewed on direct appeal. On de novo review, we find that mother's counsel was adequate, and we affirm.

FACTS

We take the following facts from the Court of Appeals' opinion:

"Mother has three children from her marriage to Bill Geist, who has had a severe drug and alcohol problem and has repeatedly abused mother and the children. When mother left the family home sometime during the week of May 20, 1985, police investigated reports that she no longer wanted the children and that they had not been to school for two weeks. Finding mother gone, the father disoriented and the house dirty and without a sufficient food supply, the police took the children away. The father was indicted on October 16, 1985, for sexual abuse in the first degree and sodomy, and he relinquished his parental rights on April 2, 1987. The father's conduct has left the children emotionally disturbed.

"On May 21, 1985, the court placed the children in the temporary custody of Children's Services Division after mother indicated that she needed to get a divorce, a steady job and a new home before resuming their care. On July 31, 1985, the court made the children wards of the court and continued temporary custody in CSD. Mother was ordered to participate in individual counseling, parenting classes and a battered women's group, but she attended only some of the parenting classes. [In February, 1986, and again in October, 1986, the trial court continued CSD's temporary custody of the children.] On December 10, 1986, the court again ordered mother to complete CSD's plan and appointed counsel to represent her. ³ Mother again failed to comply with the plan. The state filed an amended petition to terminate her parental rights on May 20, 1987; ⁴ and on July 17, 1987, the court issued a termination judgment." State ex rel. Juv. Dept. v. Geist, 97 Or.App. 10, 12-13, 775 P.2d 843 (1989). (Footnote omitted.)

The children originally were made wards of the circuit court in 1985 based upon their dependency. When mother's trial counsel was first appointed in 1986, no termination petition had yet been filed. Counsel represented mother in the dependency proceedings and continued to represent her after the original and amended termination petitions were filed.

THE TERMINATION HEARING

The termination hearing was set for June 23. In a letter dated June 18, 1987, mother's appointed trial counsel advised the circuit court that:

"I was informed last Friday, June 12, 1987, that I was removed from the court appointment list for dependency cases. I have asked Judge Herrell for clarification. However, since it is my understanding that the removal of an attorney who has already been qualified for a list usually means that the attorney has been found to be incompetent, or has engaged in misconduct, I cannot proceed on the Geist case until I do receive clarification. If I was removed from the list for the above reasons, then I will naturally have On June 23, 1987, mother's trial counsel made an oral motion to withdraw. The following colloquy occurred:

to resign from this termination case." ⁵

"[COUNSEL]: Your Honor, I was going to bring to the Court's attention the fact that I have been removed from the Juvenile Court list. I am not clear why that happened.

"My continuation of this case might be a violation of a disciplinary rule and, therefore, under Rule 210(b)(2) [sic ], I request the court's permission to withdraw from this case. ⁶

"[Judge LaMar]: I previously indicated to you that you received an order of appointment from some Judge or Referee and I have been leafing through the file to try to find out who signed that order but I indicated on Friday that, as far as I was concerned, you were appointed to represent your client and you had the ethical duty to do so.

"[COUNSEL]: Yes, I was appointed to this case. However, it was an inadvertent appointment because I was not on the list to do the terminations.

"I should not be doing this case. I did receive verbal permission from Judge Herrell to continue with this case. That verbal permission was received prior to my removal from other Juvenile Court matters.

"If Your Honor feels that that is adequate for me to proceed, I am simply making my mandatory request to withdraw and that's been denied. Apparently, that takes care of it.

"[Judge LaMar]: I don't have any reasons to believe that you are not competent to represent your client. I have not observed you personally in a termination proceeding. Check with me again in three days.

"But my information from Judge Herrell is that he did, in fact, advise you to continue to represent your client and, as far as I can tell, there is nothing in the file or any communications between or among you or the Judges that would indicate to the contrary.

"So let me ask you, Ms. Geist, have you been satisfied?

" * * * * *

"[COUNSEL]: She has never been represented by counsel before.

"[Judge LaMar]: Well, she has been represented by you for over six months.

"Ms. Geist, have you been satisfied with the representation that [counsel] has provided to you during the course of the last six months or so?

"MS. GEIST: Yes.

"[Judge LaMar]: And do you have any reason to believe that her continuing to represent you would be inappropriate for any reasons?

"MS. GEIST: No, I wouldn't want to go through it again and have to start all over with another lawyer.

"[Judge LaMar]: Aside from that issue, have you been satisfied with her representation?

"MS. GEIST: Yes." (Emphasis added.)

The court denied counsel's motion to withdraw, stating:

"[Judge LaMar]: The appointment will continue and I believe that goes back to December of 1986 and it was continued by Judge Nachtigal in the hearing in front of her, not on a termination petition but on the review that was held."

After hearing the evidence and arguments of counsel, including the childrens' appointed counsel who agreed with the state that mother's parental rights should be terminated, the circuit court made extensive oral findings. ⁷ The circuit court concluded:

"I find it overwhelmingly conclusive that the best interests of these children, as well as the conditions and circumstances of the mother and the lack of effort to adjust her circumstances to meet her children's needs, requires that the children continue as wards of the Court, that the parental rights of the mother be terminated, and that the children be permanently committed to the care of Children's Services Division for adoptive placement."

The court thereafter ordered that mother's parental rights be terminated. The court's termination order reads in part:

"[T]he allegations of the petition for termination of the parental rights of the mother have been proven by clear and convincing evidence. The mother has shown that she is unable to overcome the emotional issues which have occurred over the past few years and impeded her care of the children on her own. It also appears that the mother has refused to acknowledge these issues and that further attempts at counseling in light of that resistance are fruitless. It also appears that the children have significant needs which the mother is unable to address, and it is in the best interest of the children that the parental rights of the mother be terminated."

At no time did the trial judge ⁸ or the children's trial counsel express any reservation about the adequacy of mother's trial counsel.

Mother appealed the termination order, contending, in part, that her trial counsel had been inadequate. ⁹ The Court of Appeals refused to consider that claim, explaining:

"Presently, ORS 419.525(2) requires the appointment of counsel for indigent parents in termination cases, and we may assume that the legislature intended that competent and effective counsel be appointed.

However, it has not provided a specific procedure or forum for determining whether a parent has been afforded effective assistance of counsel.

" * * * * *

"[E]ven though we can accept mother's assertion of a right to competent and effective counsel under the statute, direct appeal on the trial court record is not the appropriate forum. The legislature has not created a special forum, as it has in criminal matters (ORS 138.510--ORS 138.680), and there is no source from which we may derive the authority to create one. We hold that the question of the effectiveness of counsel may not be reviewed on direct appeal." (Footnote omitted.) State ex rel. Juv. Dept. v. Geist, supra, 97 Or.App. at 17-18, 775 P.2d 843.

On de novo review, the Court of Appeals concluded that the evidence, taken...