¶1 Tracy Seal (Mother) appeals a judgment entered in a nonjury trial
conducted on the motion of the State of Oklahoma (State) to terminate her
parental rights to her child, N.L.1
BACKGROUND
¶2 This action was tried as a nonjury case. The court previously adjudicated
N.L. as a deprived child, placed him in the custody of the Department of Human
Services (DHS) and then foster care.
¶3 The State's evidence showed that Mother had been provided an
Individualized Service Plan (ISP) giving her instructions and conditions.
According to DHS records, Mother had completed only one of the ISP requirements
and more than ninety days had passed since the date of the ISP. In addition,
Mother had not visited N.L. for just over two years and had made no effort to
contact N.L. by telephone or mail. The DHS witness testified that N.L.'s best
interest would be served by termination of Mother's parental rights.2
¶4 The foster parent testified that she would have facilitated contact
between Mother and N.L. She confirmed that Mother had not made any contact.
¶5 Mother testified and stated that she had a seventh grade education. In her
testimony, Mother generally admitted that she had not completed all of the plan
conditions and acknowledged that she was aware of what conditions were required.
She agreed that she had not visited or contacted N.L. for just over two years
and that she knew how to do so through DHS. Mother acknowledged that she made no
financial contribution to support N.L.
¶6 Mother claimed that Texas authorities had denied her visitation in a
previous case and that DHS also denied her visitation, but the latter was not
documented.3
In response to questions from the court, Mother acknowledged that she could
bring concerns to the court and that she had failed to attend three review
settings.4
¶7 One of the conditions not fulfilled required Mother to obtain domestic
violence counseling. Mother agreed that she had not done so, but explained that
she had received the counseling as a condition of an earlier proceeding in
Texas. Mother stated that a prior DHS caseworker had told her that the prior
counseling would meet the condition. However, she acknowledged that her plan
from DHS called for counseling.
¶8 Mother admitted to several residences over time, but said that she had a
home now and was living with her fiancé. Mother also said she had employment as
a babysitter paying $175.00 per week, but she also agreed that she had not
reported the employment to DHS as required.
¶9 The trial court ruled that the State had proven by clear and convincing
evidence that Mother had failed to correct conditions that caused N.L. to be
adjudicated deprived and made specific findings supporting that ruling. The
court also ruled that termination of Mother's parental rights was in N.L.'s best
interest.
¶10 Mother appeals.
STANDARD OF REVIEW
¶11 The appellate court in a termination of parental rights case must be
satisfied, after review of the record, that the State has met its burden of
proof by the presence of clear and convincing evidence to support the verdict
and judgment. In re S.B.C., 2002 OK 83, 64 P.3d 1080. Clear and convincing
evidence means that the jury, and this Court on appeal, considering all the
evidence in the case, must be persuaded that the proposition on which the party
has the burden of proof is highly probable and free from serious doubt. In re
K.C., 2002 OK CIV APP 58, ¶
5, 46 P.3d 1289, 1291 (citing
In re C.G., 1981 OK 131, ¶
17 n.12, 637 P.2d 66, 71
n.12.)
¶12 If a fundamental constitutional right is violated in a proceeding to
terminate parental rights, it is the duty of the appellate court to raise the
issue sua sponte. In re S.S., 2004 OK CIV APP 33, ¶ 7, 90 P.3d 571, 574-75 (mother's
counsel absent for part of trial and Court reversed termination).
ANALYSIS AND REVIEW
¶13 The evidence in the trial of this case established that Mother had failed
to correct conditions that caused N.L. to be adjudicated deprived. Mother
admitted most of the allegations and the trial court did not find her
explanations sufficient. Likewise, the evidence presented supported the trial
court's ruling that termination of Mother's parental rights was in N.L.'s best
interest.
¶14 However, this Court's inquiry does not stop there. After hearing and
ruling on Mother's waiver of a jury and after announcing appearances for the
State and Mother, the trial court said:
The child's attorney, Mr. Lawrence Wheeler, had another commitment this
morning in another courtroom. He gave the court specific permission to begin
the proceedings without him. He will join us as soon as he's freed up. Is
there any objection from either side as to that?5
¶15 Counsel for Mother and for State each stated that they had no objection.
The cause began. However, the transcript does not show that N.L.'s counsel ever
appeared. The trial court's concluding remarks, after the State and Mother
rested, addressed only the State and Mother, thus indicating that N.L.'s
attorney was not present. The transcript reflects that the N.L.'s attorney did
not examine or cross-examine any witnesses or present a closing argument.
¶16 The issue, raised by this Court, is whether a fundamental constitutional
right of N.L. was violated in this proceeding to terminate Mother's parental
rights. Specifically, the questions are whether N.L.'s right to be represented
by an attorney is accompanied by a right to effective assistance of counsel,
and, if so, has N.L. been deprived of the right to effective assistance of
counsel.6
¶17 First, this Court holds that a child in a parental rights termination
proceeding has a constitutional right to effective assistance of counsel. In
reaching this holding, this Court applies to this case the Court's holding in
the case of In re D.D.F., 1990
OK 89, ¶ 15, 801 P.2d 703,
707 (parent's right to counsel is the right to effective assistance of counsel),
as well as the rule in the case of In re S.S., 2004 OK CIV APP 33at ¶ 10, 90 P.3d
at 575 (parent's right to counsel would be meaningless absent right to effective
assistance of counsel).
Taking into consideration both the constitutional and statutory
requirements that counsel be provided, we must also agree with Mr. F. that
the right to counsel is the right to effective assistance of counsel. The
right to counsel would be of no consequence if such counsel were not
required to represent the parent in a manner consistent with an objective
standard of reasonableness.
In re D.D.F., 1990 OK
89 at ¶ 15, 801 P.2d at 707 (citation omitted).
¶18 Next, this Court joins with decisions from other divisions of the Court
of Civil Appeals holding that the standard for determining the effectiveness of
counsel in termination proceedings is the standard used in criminal trials.
In re A.F.K., 2014 OK CIV APP
6, ¶ 35, 317 P.3d 221, 229;
In re S.S., 2004 OK CIV APP
33at ¶ 10, 90 P.3d at 575; In re R.S., 2002 OK CIV APP 90, ¶ 16, 56 P.3d 381, 384; In re
K.L.C., 2000 OK CIV APP 98, ¶
7, 12 P.3d 478, 480. This
standard was adopted by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 7
¶19 A determination of whether counsel's representation is ineffective begins
with the strong presumption of effective assistance of counsel. However, the
actual or constructive denial of assistance of counsel is legally
presumed to be prejudicial. Strickland, 466 U.S. at 692, 104 S. Ct. at
2067. Where a party has counsel and the counsel takes no action, the result is a
constructive denial of effective assistance of counsel. Young v. State,
1994 OK CR 84, ¶ 9, 902 P.2d 1089, 1090-91; In re
A.F.K., 2013 OK CIV APP 6, n.9, 317 P.3d 221 n.9; In re
K.L.C., 2000 OK CIV APP 98at
¶ 14, 12 P.3d at 482.
¶20 The statute, 10A O.S.2011, §1-4-306(A)(2), outlines the duties of
appointed counsel.8 The District Court record before this Court does not
show that appointed counsel contacted N.L. or the foster parent or substituted
his judgment as to N.L.'s interests using the objective criteria enumerated in
the statute. Moreover, the District Court record does not reflect "good cause
shown" for not meeting with N.L. prior to trial.
¶21 In addition, the District Court record does not show what "further
inquiry" was undertaken to ascertain the facts and prepare for a trial. Although
the statute provides flexibility by modifying "further inquiry" with "deems
necessary," such modification does not permit a total absence of inquiry.9 Here, the
Appellate Record fails to contain any information regarding counsel's "further
inquiry" actions, so it is not possible to determine whether the representation
was effective at this stage.
¶22 Other than counsel's appearance at the review hearings, the District
Court record does not reflect any reports to the court, any recommendations to
the court, or any expressions of what the interests of N.L. might be. As shown
above, according to the Record, appointed counsel was absent from the trial of
the case.
¶23 The Oklahoma Rules of Professional Conduct, Rule 1.1, 5 O.S.2011, ch. 1,
app. 3-A, and accompanying commentary succinctly provide instructive
standards.
Rule 1.1. Competence
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the
representation.
¶24 The authors of Strickland's Children, 85 OBJ 1677 (August 9,
2014), cite from performance standards and guidelines issued by the Committee
for Public Counsel Services, a Massachusetts agency. The Performance Standards
Governing the Representation of Children and Parents in Child Welfare Cases are
instructive here.10 In part the Standards provide:
1. GENERAL PRINCIPLES OF REPRESENTATION
1.1 Role of Counsel.
(a) The role of counsel in these cases is to be an advocate for the
client within the scope of counsel's appointment. Counsel shall diligently
and zealously protect and advance the client's interests, rights and goals
in the proceedings. This involves explaining the nature of all legal and
administrative proceedings to the extent possible given the client's age and
ability, determining the client's position and goals, and vigorously
advocating such position and goals The role of counsel is also to ensure
that the client is afforded due process and other rights and that the
client's interests are protected.
(b) The role of counsel also is to be an advisor and counselor. This
involves explaining the likelihood of achieving the client's goals and,
where appropriate, identifying alternatives for the client's consideration.
In addition, counsel should explain the risks, if any, inherent in the
client's position.
(c) Counsel has an obligation to make available sufficient time,
resources, knowledge and experience to afford competent representation to
the client.
(d) Counsel for a child owes the same duties of undivided loyalty,
confidentiality, zealous advocacy and competent representation to the child
as is due an adult client, consistent with the Massachusetts Rules of
Professional Conduct.
Commentary: The child's counsel should not be merely a fact-finder, but
rather, should zealously advocate a position on behalf of the child.
Regardless of any alignment of position among the child and other parties,
child's counsel should develop his or her own theory and strategy of the
case and ensure that the child has an independent voice in the proceedings.
Although the child's position may overlap with the position of one or both
parents, third-party caretakers or the Department of Social Services
("DSS"), child's counsel should be prepared to present his or her client's
position independently and to participate fully in any
proceedings.
¶25 The circumstances here are not as in Davis S. v. State, 270 P.3d
767, 786 (AK 2012), where the father "did not show how an improved or more
aggressive performance would have made a difference in the outcome of his case."
There, counsel actively participated in the case, although the trial court
criticized the participation as substandard.
¶26 "The right to counsel would be of no consequence if such counsel were not
required to represent the parent in a manner consistent with an objective
standard of reasonableness." In re D.D.F., 1990 OK 89 at ¶ 15, 801 P.2d at 707.
"The rule is that when an attorney takes no action on behalf of his client,
there is a legal presumption of prejudice." In re K.L.C., 2000 OK CIV APP 98at ¶ 15, 12 P.3d
at 482 (citing Young v. State, 1994 OK CR 84, 902 P.2d 1089).
¶27 The phrase "deems necessary" found in 10A O.S.2011, § 1-4-306(A)(2)(c)
pertains to the duty of counsel to "make such further inquiry" "to ascertain the
facts." The phrase does not provide a basis to excuse appointed counsel from his
or her duty as an advocate, otherwise the next full sentence would be
meaningless.11 The statute contemplates and requires a
participating attorney. The child's right to effective assistance of counsel
requires the same standard. Here, the Record shows a complete absence of
advocacy for N.L. in the trial court.12
¶28 This Court holds that, under the Record, the right of N.L. to effective
assistance of counsel has been denied. This means that the judgment must be
reversed and the cause remanded for a new trial. On remand, the trial court is
free to apportion the costs of the retrial as appropriate.
¶29 REVERSED AND REMANDED FOR A NEW TRIAL.
FISCHER, P.J., concurs, and THORNBRUGH, J., specially concurs.
THORNBRUGH, J., concurring specially:
¶1 I concur specially to underscore that a child is constitutionally entitled
to representation at a termination hearing. A proceeding to terminate parental
rights is just as important to the child as to the parent. An absent attorney is
no attorney at all, and utterly fails to provide the child with the statutory
and constitutional protections required. This holding is consistent with the
mandate of 10A O.S.2011 § 1-4-306(A)(5), that "[t]he court shall ensure that the
child is represented by independent counsel throughout the pendency of the
deprived action."