S.E. v. State

2015 UT App 230, 360 P.3d 16, 2015 WL 5314365

• Court: Court of Appeals of Utah
• Decided: September 11, 2015
• Docket: No. 20140055-CA
• Status: Published

Opinions

Opinion

PEARCE, Judge: -

1 1 S.E. (Mother) appeals from the juvenile court's order terminating her parental rights in her two boys, A.S. and 8.8. Mother argues that she received ineffective assistance from her counsel at the termination trial and that the juvenile court failed to adequately inquire into the reasons for her expressed dissatisfaction with counsel. We agree that Mother received ineffective assistance of counsel. We reverse the juvenile court's termination order and remand for further proceedings.

BACKGROUND

2 This appeal concerns Mother's right to parent A.S., born in July 2010, and S$.S., born in June 2012, As of early 2012, Mother lived with A.S. and his father (Father).¹ Mother's two older children from a prior relationship, PP. and S.P., also lived in the home.²

13 In May 2012, while Mother was jailed in an unrelated case, Father became upset at PP. for "being disrespectful" to an uncle. During this episode, Father grabbed P.P. by the arm and hit him, causing "bruises and scratches on [PP's] right forearm and seratches on both sides of his neck." Father also threw a beer can at P.P. and spat on him. The next day, while P.P. was at school, a teaching assistant noticed and reported the bruising and scratches. In response, the Division of Child and Family Services (DCFS) requested, and the juvenile court issued, a warrant to take PP:; and S.P. into protective custody. A.S. was placed in the care of relatives. The juvenile court adjudicated the three children as abused or neglected. After S.S. was born in June 2012, he was found to be a sibling at risk. Upon Mother's release from jail, the children were returned to her custody, subject to protective supervision services provided by DCFS.

I 4 Mother initially responded fairly well to those services But by the fall of 2012, Mother had become non-compliant with DCFS's supervision services. Mother was also jailed again. The juvenile court ordered P.P. and S.P. to be placed in the custody of their biological father in Iowa and ordered DCFS to take custody of A.S. and S.S. A.S. and S.S8. were subsequently placed in a non-kinship foster home.

T5 In January 20183, after Mother was released from jail, she moved to Iowa to be with PP. and S.P. During the first few months of 2013, Mother called A.S. and 8.8. only four times.³ Mother did not maintain regular contact with DCFS, although the record reflects that in March 2018 she demanded that DCFS return A.S. and S$.8. to her. During this time,; Mother apparently had no contsct with her appointed counsel in this matter (Trial Counsel).⁴

I 6 In April 2018, the juvenile court held a hearing to determine A.S. and S.S.'s placement. Mother did not attend the hearing. Trial Counsel was present. At the conclusion of the hearing, the juvenile court placed A.S. and S.S. in a foster home in Wyoming with foster parents that are relatives of Father.

T7 Between April and July 2013, Mother remained in Iowa and did not visit A.S. and S.S. During this time, Mother was also arrested for theft in Iowa. She did not call A.S. and 8.8. at all in April or May, but by June she began calling them more often. Between June 10 and August 14, Mother called A.S. and 8.8. at least eight times, or almost onee a week. During this period, DCFS had difficulties contacting Mother by phone and considered her to be non-compliant with its ren-nification efforts.

T8 In July 2013, the juvenile court conducted a review hearing; Mother participated telephonically. Despite Mother's assertions that she had been calling A.S. and S.S. and attempting to comply with DCFS's requirements, the juvenile court terminated reunification services and changed the permanency goal for A.S. and 8.8. to termination of Mother's and Father's parental rights and adoption. At the July hearing, Mother expressed dissatisfaction with Trial Counsel, stating that she was trying to obtain a different lawyer because Trial Counsel "hasn't been doing a lot."

T9 In August 2013, the State filed a petition to terminate Mother's parental rights. The petition alleged multiple grounds for termination, including abandonment, neglect, lack of parental adjustment, and failure to remedy the cireumstances that led to A.S. and S.8.'s out-of-home placement. The petition contained no allegation that Mother had ever abused A.S. or S.8. Rather, all of the grounds for termination flowed directly or indirectly from Mother's absence from A.S. 'and S.8.'s lives.

€ 10 The juvenile court set November 2013 as the date for the termination of parental rights trial. Mother participated telephoni-cally in two pretrial hearings during September and October. At the October hearing, she stated to the juvenile court that she was in the process of retaining different counsel, explaining that Trial Counsel "hasn't really done anything to help me on this case [and all] he's really actually done is hurt my case."

11 Trial was held on November 12, 2018. Mother participated by phone. . Trial Counsel was present in person. At the beginning of the trial, Trial Counsel informed the juvenile court that he had received a fax from Mother that morning "asking for a continuance on this case so she can seek better counsel, since her lawyer isn't doing anything at all." In response to the juvenile court's questioning, Mother explained that she had recently obtained the funds she needed to retain new counsel, The juvenile court denied the request for a continuance on timeliness grounds without inquiring into the reasons for Mother's dissatisfaction with Trial Counsel.⁵

{12 Trial then commenced. Tnal Counsel made no opening statement on Mother's behalf. After its opening statement, the State began submitting documentary exhibits. After the State offered its third exhibit, Trial Counsel announced, "Your Honor, I have seen all the exhibits. I have no objection to any of them.... [The Court would accept them no matter whether there was an objection or not." The juvenile court responded, "Not necessarily. If you want to make [an objection], make one." Trial Counsel remained silent as DCFS submitted its remaining exhibits, thirty-six in total, and confirmed at the end of the process that he had no objections. '

~ T13 At trial, the State- called Mother's DCFS case worker and A.S. and S.8.'s Wyoming foster mother. The case worker testified about Mother's sporadic communications with A.S. and S.8., Mother's failure to stay in contact with DCFS, and Mother's failure to comply with DCFS's reunification requirements. Trial Counsel raised no objections during the case worker's testimony. Trial Counsel then declined to cross-examine the case worker.

. 14 The foster mother testified about her relationship with A.S. and S.S. and Mother's communications with them. Trial Counsel remained silent during the foster mother's testimony, except when the foster mother offered testimony concerning pictures of A.S. and S.S. at her home. At this point, Trial Counsel volunteered that he was "willing to stipulate that [A.S. and S.8.] look cute and they're happy in the home." Trial Counsel also commented to the foster mother, "And you do a very excellent job with the camera." Trial Counsel did not raise any objections to the foster mother's testimony and again declined to conduct cross-examination. The State then rested its case.⁶

[ 15 The juvenile court asked Trial Counsel if there was anything he would like to present, and Trial Counsel responded, "No,. your Honor." The juvenile court then asked Mother if she had anything to say. Mother made a brief statement to the court. Mother began trying to explain that she maintained telephone contact with A.S. and S.S., that she had a suitable home for them in Iowa and was working, and that her children should never have been placed in Wyoming. Trial Counsel did not conduct a direct examination to help Mother present her version of events to the juvenile court. Instead, the State, then the guardian ad litem (the GAL), cross-examined Mother. -

1 16 Trial counsel raised no objections during Mother's cross-examination, during which Mother admitted that she had not seen A.S. and 8.8. for close to a year. Mother also testified that she "(did not] have the means to come out and see them," that she was expecting them to be sent to her in Iowa under the "interstate compound," and that she currently lived in a large house that was suitable for A.S. and S$.8.⁷

T 17 After the State and the GAL fimshed their questioning, Trial Counsel finally decided to question Mother. However, rather than attempt to elicit favorable testimony from Mother or otherwise rehabilitate her case, Trial Counsel questioned Mother regarding her lack of communication with him. When Mother responded that she had tried to call Trial Counsel "a few times," Trial Counsel asked her, "What were the dates that you tried to call my office?" Mother thought she had called Trial Counsel in February, March, and June, and on the day of trial, but had not received return calls. Trial. Counsel then asked if Mother had ever written him to inform him of her address. Mother continued to focus on the phone calls, stating, "I never got any return phone calls from you, actually. Like even when-you never even cross examined the witnesses;, let alone-" Trial Counsel cut her off, stating, "Nothing further. There's no sense in it, Judge."

{18 The juvenile court then called for closing arguments, beginning with Trial Counsel. Trial Counsel responded, "Nothing to argue, Judge." The State and the GAL also submitted the matter without closing argument, and the juvenile court issued its oral ruling terminating Mother's parental rights. At the close of its ruling, the juvenile court again inquired i#f Trial Counsel had anything to. add. Trial Counsel responded that he did not. Once the juvenile court turned to the scheduling of a review hearing, Trial Counsel inquired, "Your honor, am I released?" In response, the State indicated that Trial Counsel would likely need to continue to represent Mother through the possible initiation of an appeal, but the juvenile court released Trial Counsel from attending the review hearing.

Mother now appeals the juvenile court's order terminating her parental rights to A.S. and 8.84.⁸

ISSUE AND STANDARD OF REVIEW

120 Mother argues fhat Trial Counsel failed to provide her .with the effective assistance of counsel to which she was entitled. See State in Interest of E.H., 880 P.2d 11, 13 (Utah Ct.App.1994) (holding that a parent's statutory right to counsel in termination proceedings guarantees the right to effective counsel). "An ineffective assistance of counsel claim raised for the first time. on appeal presents a question of law." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. Because we resolve this appeal on Mother's ineffective assistance of counsel argument, we do not reach her argument that the juvenile court erred in failing to adequately inquire into her dissatisfaction with Trial Counsel at the termination hearing. See State ex rel. C.C,, 2002 UT App 149, ¶ 10, 48 P.3d 244 (imposing duty on juvenile court to inquire into a parent's expressed dissatisfaction with appointed counsel during termination proceedings).

4 21 "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State in Interest of E.H., 880 P.2d at 13 (adopting the Strickland test to determine a claim for ineffective assistance of counsel in proceedings involving termination of parental rights). Here, Mother argues that Trial Counsel's faflure to represent her interests at the termination trial fell below reasonable professional standards and significantly undermined the reliability of the trial process. We agree.

122 To establish that she is entitled to a new trial based upon Trial Counsel's ineffective assistance, Mother "must show that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the case." State in Interest of E.H, 880 P.2d at 13. "[TJhe proper standard for attorney performance is that of reasonably effective assistance," Strickland, 466 U.S. at 687, 104 S.Ct. 2052, and to demonstrate deficient performance, Mother must show that Trial Counsel's representation "fell below an objective standard of reasonableness," 1d. at 688, 104 S.Ct. 2052.

T23 Mother has shown that Trial Counsel's performance at trial was objectively deficient.⁹ Trial Counsel failed to make an opening argument summarizing Mother's case against termination, failed to cross-examine the State's witnesses, failed to present evidence in Mother's favor through Mother's testimony or otherwise, and declined to make a closing argument with the comment that there was "[nlothing to argue." Trial Counsel's only affirmative actions at trial were (1) telling the juvenile court that he would not object to the admission of documents because the court "would accept them no matter whether there was an objection or not"; (2) stipulating that pictures taken by the foster mother showed that A.S. and 8.8. were "happy in the [foster] home," as well as complimenting the foster mother's photography skills; and (8) questioning Mother's credibility about her allegations that he had not communicated with her prior to trial. '

¶ 24 The trial transcript reveals that Trial Counsel simply remained silent except when he was declining to act on Mother's behalf, registering non-objection or stipulation to the State's evidence,¹⁰ or examining Mother.¹¹ Trial Counsel's "willful disregard for [Mother's] case cannot possibly be construed as sound strategy" and "falls far 'below an objective standard of reasonableness'" Menzies v. Galetka, 2006 UT 81, ¶ 96, 150 P.3d 480 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Rather, we can only characterize Trial Counsel's performance at trial as an "abdication of advocacy." Menzies v. State, 2014 UT 40, ¶ 183, 844 P.3d 581 (citation and internal quotation marks omitted).

$25 The State argues that Trial Counsel's performance must be viewed against the backdrop of Mother's intransi-genee. The State claims that "any deficit in [Trial Counsel's] performance was directly attributable to Mother's complete failure to communicate with him." Indeed, the record reveals a strained and difficult relationship between Trial Counsel and Mother. The State lays the blame for the breakdown at Mother's feet and argues that Mother "has manufactured a claim of ineffectiveness by creating a situation in which it would be virtually impossible for any lawyer to provide the very best representation." Strickland does not, of course, require "the very best representation"; it does, however, mandate objectively reasonable performance. 466 U.S. at 688, 104 S.Ct. 2052. Even if we were to concur with the State that Mother was responsible for the strained relationship, we cannot accept the State's argument that this difficulty made it objectively reasonable for Trial Counsel to do nothing at all to advance his client's interests.

11 26 We also acknowledge the GAL's argument that "'[slilence can constitute trial strategy," particularly where the evidence is overwhelming against the defendant." (Quoting Warner v. Ford, 752 F.2d 622, 625 (11th Cir.1985).) Here, however, the evidence in favor of termination of Mother's parental rights was not overwhelming. Mother had never abused A.S. or S.S. and was not subject to the kind. of long-term incarceration that would preclude reunification. There is also no suggestion in the record or the State's petition that Mother had substance-abuse issues.

27 Rather, the State's grounds for termination were all based, directly or indirectly, on the separation between Mother and the children that resulted from Mother's move to Towa and the children's placement in Wyoming. We see no valid trial strategy in Trial Counsel's refusal to at least explore the contacts Mother had with A.S. and S$.8.,¹² the efforts she had made to create a stable environment for her children in Towa, and her desire to retain her parental rights Further, Trial Counsel did not employ a "silence strategy," but rather elected to call Mother's credibility into question and . affirmatively represented to the juvenile court that he had "[nlothing to argue." In other words, not only did Mother lack an advocate. in the courtroom, but her own attorney appeared to take an adversarial position against her. This was objectively unreasonable and denied Mother the effective counsel Utah law guarantees to a defendant facing the logs of her parental rights. See Utah Code Ann. § 78A-6-1111(1) (LexisNexis Supp. 2014) (establishing a parent's right to counsel at termmatlon proceedings).

128 To establish her claim of ineffee-tive assistance of counsel, Mother must also demonstrate that Trial Counsel's performance resulted in prejudice to her case. See State in Interest of E.H., 880 P.2d 11; 13 (Utah Ct.App.1994). Thus, Mother "must show that there is a reasonable probability that, but for [Trial Counsel's] unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine [our] confidence in the outcome." Id.

'I 29 Trial Counsel's complete lack of advocacy for Mother during the termination trial undermines our confidence in the result.¹³ competent presentation of Mother's version of events could have explained her actions in such a light that there is a reasonable probability of a more favorable result for Mother.

For example, the juvenile court concluded that Mother had "failed to communicate with her children in any way in excess of six months and failed to show the normal interest of a natural parent." Had Trial Counsel performed effectively, he could have elicited testimony that the records the foster parents maintained demonstrated that Mother had made almost weekly calls to the children for a number of months. Trial Counsel also 'could have argued that Mother's frequent reference to her belief that the "interstate compound" provided her a mechanism to regain custody of her children was inconsistent with a finding of abandonment or-a finding that Mother had failed "to have shown the normal interest of a natural parent, without just cause." See Utah Code Ann. § 78A-6-508(1)(c) (LexisNexis Supp. 2014). Similarly, the juvenile court found, citing Utah Code section T78A-6-508(2)(d), that Mother had shown "repeated or continuous failure to provide the children with food, clothing, shelter, education, or other care necessary for the children's physical, mental, and emotional health and development." See id. § 78A-6-508(2)(d). There is a reasonable likelihood of a different result had Trial Counsel elicited Mother's testimony concerning the efforts she had undertaken in Towa in hopes of creating a stable environment there for all of her children.

{31 Trial Counsel's deficient performance not only precluded Mother from completely and competently presenting her story to the juvenile court, but Trial Counsel affirmatively undercut Mother's case. Trial Counsel's examination of Mother was a direct attack on her credibility,. The juvenile court's termination order expressly found that Mother's testimony lacked credibility. The Utah Supreme Court has recognized that deficient performance that diminishes a party’s credibility can be prejudicial. See State v. Lenkart, 2011 UT 27, ¶ 41, 262 P.3d 1 (discerning prejudiee where unoffered testimony "would have shifted the credibility seale in [the defendant's] direction, thus changing the entire evidentiary picture at trial"). Hers, any possibility of a successful result for Mother hinged on the juvenile court believing Mother's explanations for her actions, Trial Counsel's examination diminished Mother's credibility before the juvenile court and thereby decreased the possibility of a more favorable result.¹⁴ Cf id.

132 Mother has shouldered her burden on appeal of demonstrating that Trial Counsel provided her with objectively deficient assistance at her termination trial and that his performance prejudiced her case. She has thus established that she was deprived of the effective assistance of counsel that Utah Code section TRA-6-1111 guaranteed her.

CONCLUSION

83 Trial Counsel rendered ineffective assistance of counsel by failing to represent Mother's interests in the trial to terminate her parental rights. At trial, Mother wanted to explain her actions to the juvenile court. Trial Counsel's failure to advocate largely prevented Mother from doing so. Further, to the extent that the juvenile court allowed Mother to tell her story without the assistance of Trial Counsel, Trial Counsel diminished her credibility with his own comments and examination of Mother. We conclude that Trial Counsel's actions fell below reasonable professional standards of representation and undermine our confidence in the result the juvenile court reached. Accordingly, Mother received 'ineffective assistance of counsel and is entitled to a new trial, We reverse and remand for further proceedings.

1 . Father is also the parent of S.S.

2 . PP. and S.P. were placed in Iowa with their biological father during the pendency of this proceeding and are not the subject of this appeal.

3 . DCFS had apparently recommended that Mother call A.S. and S$.S. twice a week.

4 . Trial Counsel had also represented Mother in her unrelated criminal matters.

5 . Even though Mother had told the juvenile court at the July and October hearings that she was attempting to retain different counsel, the court stated that Mother had "not mentioned changing attorneys until today." | Trial Counsel did not bring this factual inaccuracy to the juvenile court's attention.

6 . After the State rested, the juvenile court briefly questioned A.S. and S.S.'s foster father, who stated that he agreed with the foster mother's testimony, Trial Counsel did not cross-examine the foster father.

7 . Mother's repeated references to the "interstate compound" apparently refer to the Interstate Compact on the Placement of Children. See Utah Code Ann. §§ 62A-4a-701 to -710 (Lexis-Nexis 2011) (governing the placement of children between states).

8 . We note that Trial Counsel apparently failed to assist Mother with this appeal. Mother initiated this appeal with a pro se letter. The untimeliness * of Mother's letter nearly led to the dismissal of this appeal, but the juvenile court extended Mother's time to appeal after finding a breakdown in communication between her and Trial Counsel. The juvenile court also appointed new counsel, who has briefed and argued the appeal on Mother's behalf.

9 . Mother also complains that Trial Counsel did nothing to assist her prior to the termination trial. We examine only Trial Counsel's performance at trial.

10 . Mother has not established that Trial Counsel's non-objections or stipulations were professionally unreasonable in and of themselves. We identify them only to complete the short list of actions that Trial Counsel actually undertook during Mother's trial,

11 . In stark contrast to his reticence during trial, once the juvenile court rendered its decision terminating Mother's parental rights at the end of trial, Trial Counsel immediately requested that he be released from his representation of Mother.

12 . For example, the contact log prepared by the foster mother showed that Mother had contacted A.S. and S.S. nearly weekly in the two months preceding the State's filing of the termmatlon petition.

13 . The concurring opinion asserts that "the juvenile court seems to have correctly determined that Mother failed to show the normal interest of a natural parent and could not demonstrate sufficient just cause to excuse her failures," See infra 134. Trial Counsel's failure to represent Mother helped create the record that the concurring opinion relies on to reach its conclusion about the propriety of the juvenile court's decision. The concerns we have about Trial Counsel's representation undermine 'our confidence that Mother's story was fully presented. For example, we do not know what Mother might have offered to demonstrate "just cause" for the decisions she made had she been appropriately represented. Given the importance of the fundamental interests at stake, we believe the more prudent course of action is to await'a record developed with the assistance of the counsel Utah law guarantees before assessing whether the juvenile court properly termmated Mother's parental rights. .

14 . Other aspects of Trial Counsel's deficient performance only reinforced and magnified this prejudice, including his failure to make an opening statement, his abrupt termination of his examination of Mother with the comment '"[tJhere's no sense in it," and his representation to the juvenile court that there was "[nlothing to argue" in Mother's favor.