347 P.3d 301
Okla. Civ. App.2014Background
- This is a nonjury termination-of-parental-rights action brought by the State to terminate Mother's rights to her child N.L.
- NL was adjudicated deprived, placed with DHS, and then in foster care prior to the termination action.
- Mother had an ISP with conditions; DHS records show she completed only one condition and more than 90 days elapsed since the ISP.
- Mother had not visited NL for just over two years and had made no contact by phone or mail; DHS witness recommended termination as NL's best interest.
- A foster parent testified she would have helped facilitate contact if Mother had attempted contact; Mother admitted lack of contact.
- Mother testified about her education, claimed she had not completed plan conditions, acknowledged not visiting or contacting NL, and admitted no financial support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Child's right to effective counsel in termination | Seal relied on ineffective representation for NL. | Mother disputes efficacy of NL's counsel arguments. | NL has a constitutional right to effective assistance of counsel. |
| Effect of absent NL counsel at trial | Counsel failed to advocate for NL; no appearance by NL's attorney at trial. | Counsel’s duties were not satisfied; record shows absence from trial. | Trial violated NL's right; reversed and remanded for new trial. |
| Standard for evaluating counsel effectiveness in termination cases | Apply Strickland/independent standard to child representatives. | Criminal-standard framework is appropriate for child counsel in termination. | Effective assistance standard applied; reliance on Strickland adopted. |
| Remand remedy and cost allocation | Reversal is appropriate with remand for new trial to address counsel issues. | Costs may be apportioned on remand. | Judgment reversed and remanded for a new trial; costs to be allocated as appropriate. |
Key Cases Cited
- In re $.B.C., 64 P.3d 1080 (OK 2002) (clear and convincing standard clarified)
- In re K.C., 46 P.3d 1289 (OK CIV APP 2002) (probative standard for appellate review)
- In re C.G., 637 P.2d 66 (OK 1981) (foundation for burden of proof in deprivation cases)
- In re D.D.F., 801 P.2d 703 (OK 1990) (parents' right to counsel equals right to effective assistance)
- In re S.S., 90 P.3d 575 (OK CIV APP 2004) (effective assistance standard in termination cases)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (establishes objective standard for ineffective assistance)