182 A.3d 612
Vt.2018Background
- Parents had four children; proceedings began after domestic violence and neglect reports in 2014; children were adjudicated CHINS and case plans sought reunification or adoption.
- The oldest child was placed in DCF custody in April 2015; the three younger children were removed in December 2015 and visits terminated in June 2016.
- The State moved to terminate the parents’ rights to all four children; after a multi-day hearing the trial court terminated rights as to the three younger children but denied termination as to the oldest.
- Before the termination hearing, the attorney who previously represented all four children (Attorney) began representing the State; the guardian ad litem signed a letter consenting to that representation.
- Parents objected under V.R.Pr.C. 1.9 and moved to disqualify based on conflict from Attorney’s prior representation of the children; the trial court declined to disqualify, reasoning the State and children shared the same position.
- The Vermont Supreme Court reversed and remanded, concluding Attorney’s representation of the State after representing the children created a disqualifying conflict, was not effectively waived, and required a new termination hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to raise conflict challenge | Parents: their parental-interest is legally protected; conflicted children’s representation impacts parents | State: parents lack direct injury from children’s counsel conflict | Held: Parents have standing; parental rights sufficiently implicated to challenge conflict |
| Whether prior representation of children disqualifies counsel from representing State in same matter | Parents: Rule 1.9, risk of material adversity, appearance of impropriety in TPR context warrants disqualification | State: children and State shared same position (TPR), so no material adversity; guardian ad litem waived conflict | Held: Per se disqualification in abuse-and-neglect TPR context; representation by counsel for children then for State presents a conflict requiring disqualification |
| Sufficiency of waiver by guardian ad litem | State: guardian ad litem’s written consent waived conflict | Parents: waiver inadequate; parents did not consent; guardian ad litem cannot unilaterally bind children without court review | Held: Waiver ineffective here—consent of all parties (including parents) and proper court process required; guardian ad litem alone insufficient without judicial review |
| Prejudice and need for reversal | State: any conflict was harmless and did not prejudice outcome | Parents: prejudice presumed because conflict affects integrity of proceedings and prejudice is hard to prove | Held: Prejudice presumed in these circumstances; reversal and remand for new TPR hearing required |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents and child share vital interest; high due-process standard before terminating parental rights)
- State v. Crepeault, 167 Vt. 209 (Vt. 1997) (appearance of impropriety can undermine integrity of legal process)
- In re Darius G., 941 N.E.2d 192 (Ill. App. Ct. 2011) (per se conflict when counsel switches representation in juvenile termination context; prejudice may be presumed)
- In re Paul L.F., 947 N.E.2d 805 (Ill. App. Ct. 2011) (favoring per se rule to avoid delays and prejudice from later-discovered conflicts)
- Townsend v. Townsend, 474 S.E.2d 424 (S.C. 1996) (disqualification to protect integrity when prior representation substantially related to later matter)
- People v. Tessitore, 577 N.Y.S.2d 680 (App. Div. 1991) (appearance of impropriety and risk of abuse of confidence support disqualification)
- Howard v. Texas Dep’t of Human Servs., 791 S.W.2d 313 (Tex. Ct. App. 1990) (reversal where conflict undermined fairness of termination proceedings)
- In re J.J.P., 168 Vt. 143 (Vt. 1998) (state attorney conflict at merits stage addressed by limiting use of tainted findings at termination)