In re ADOPTION OF T.M.F. Appeal of S.F., Mother of T.M.F.
Superior Court of Pennsylvania
March 30, 1990
573 A.2d 1035
Argued June 19, 1989.
Order affirmed.
TAMILIA, J., files a concurring statement.
TAMILIA, Judge, concurring:
I concur in the result rather than join the majority Opinion as I believe the majority has indulged in a sociological dissertation and inclines toward justifying the result because of external reports of media and other sources rather than the facts or law of the case.
Susan P. Gantman, Norristown, for Children and Youth Services, participating party.
John H. Martin, III, Norristown, for Tiffany Fuehrer, participating party.
Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
TAMILIA, Judge:
Tiffany Marie Fuehrer, subject of the termination of parental rights proceedings now before this Court en banc, was born on February 17, 1983 to appellant Susan Marie Fuehrer. Appellant challenges the termination of her parental rights to Tiffany. She argues her counsel was ineffective and that she is, in fact, entitled to effective assistance of counsel in the same manner in which criminal defendants are afforded new effective counsel when original counsel is ineffective to the extent a defendant‘s rights are prejudiced. Appellant urges that like criminal defendants she should be given an opportunity for a new trial with effective counsel.
A summary of the circumstances surrounding Tiffany‘s life is necessary to fully understand the gravity of the situation which led to the drastic remedies of termination of
The Montgomery County Office of Children and Youth Services (hereinafter OC & Y) first began its lengthy contact with Tiffany and her family in October 1985 when an anonymous phone cаll, indicated appellant was prostituting and appellant and Tiffany‘s father were shooting heroin. The call precipitated an investigation of the home appellant was then sharing with Tiffany. At that time appellant denied drug and prostitution involvement and the matter was determined to be an unjustified neglect referral (T.T. 1/19/88, pp. 80-81). On March 19, 1986, however, appellant, apparently under the influence of drugs, went to OC & Y and requested services. Soon thereafter, on March 25, 1986, T.M.F. was placed in a foster home at the request of R.Z., the putative father who contacted OC & Y the day before asserting he could no longer handle caring for T.M.F., who had been left with him by appellant mother. This placement was agreed to by appellant who signed a voluntary placement agreement on April 8, 1986.1 Ziegler also signed an agreement transferring custody of T.M.F. to OC & Y.
The trial court‘s Opinion aptly describes the attempts at rehabilitating appellant, an admitted drug addict since age 12, and appellant‘s lifestyle since T.M.F. placement.
Since that time, respondent has engaged in one drug treatment or detoxification program after the other. She has consistently failed to follow through with any of these programs. Her residences have been numerous and temporary. She has engaged in prostitution. Most importantly to the issue at hand, is the fact that she has allowed [T.M.F.] to become the victim of sexual abuse.
The month following [T.M.F.] being placed in an OC & Y foster home, pursuant to the voluntary placement
agreement signed by respondent, respondent entered a detoxification program at Eagleville Hospital. This program is designed for a minimum of 28 days’ inpatient care; hоwever, respondent left after four days. Thereafter, respondent was referred to the Norristown Life Center for therapy and a drug treatment program. She was later referred to Norristown Life Center on two additional occasions; however, as on the first referral, she failed to comply with their drug treatment plan and Norristown Life Center requested that she not be referred there again.
From February 20, 1987, until February 25, 1987, respondent was at the Giuffre Medical Center for drug detoxification; however, she refused their rehabilitation program. From April 13, 1987, until April 17, 1987, respondent detoxed at Brandywine Detox Center and was transferred to the Eagleville Hospital drug rehabilitation program. From August 23, 1987, until August 28, 1987, respondent was in Valley Forge Detoxification Unit. Upon her discharge from this unit, she was to enter Programs in Counseling partial hospitalization program, but did not do so. On September 23, 1987, respondent was to enter Giuffre Medical Center; on October 1, 1987, she was to enter Rolling Hills Hospital; and, on October 14, 1987 the Montgomery County Methadone Clinic. OC & Y never received any verification of her participation in these latter programs. Additionally, respondent has consistently refused to attend Alcoholics Anonymous or Narcotics Anonymous meetings.
Respondent has been advised on numerous occasions that the only hope for her regaining custody of T.M.F. is that she overcome her drug and alcohol abuse problems. She has promised on numerous occasions that she will attack the problems, but has failed in every instance to do so.
Respondent has lived at numerous addresses, on a temporary basis, with variоus relatives and friends. It was while living at 1019 Swede Street that she was
permitted unsupervised visits in her apartment with T.M.F. Unhappily, during [T.M.F.] first and only overnight visit on May 28, 1986, a case of child sexual abuse was indicated [to be discussed further, infra].
Slip Op., Stefan, J., 1/21/88, pp. 20-21.
Under any standard suggested by appellant, ineffectiveness of counsel could not be a basis for reversal in this case.
OC & Y has established by overwhelming evidence that the requirements of
The statement of questions, as posed by appellant, presents the dual question as to effective assistance of counsel and whether there was sufficient evidence to show there was no possibility that S.F. could correct her drug addiction and be a fit mother to raise her daughter. Put another way, the question may be stated that if the evidence was so convincing and overwhelming that, pursuant to statute, termination of parental rights was mandated, may ineffectiveness of counsel be a bаsis for setting aside that finding? Stated in that fashion, the question must be answered in the negative.
Our analysis begins with the assumption that ineffectiveness of counsel is a relevant consideration within the context of a termination hearing. By statute and pursuant to the finding of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court held due process requires that before parental rights can be terminated the state must support its allegations by at least clear and convincing evidence. In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Supreme Court held the Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The central question raised in Kramer and Lassiter is a reprise of the theme expounded in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 358 (1970); and McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).
With this background in mind, we approach the issue of how and when ineffectiveness of counsel can be raised and considered in the context of a termination proceeding.
Pennsylvania statutes do not require counsel in termination proceedings, although Pennsylvania case law does, In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (1973), and flowing from this it is presumed that counsel would and should be effective. The central question then is how this issue may be raised and measured. Subsidiary to that question is whether the criminal rules and law developed to guide that procedure are applicable to the resolution of that issue. For a number of reasons we hold they are not.
While a termination proceeding is adversarial in the sense that it places the state in opposition to the parents with respect to the custody of the child, it does not implicate the liberty interests of the parent or the child as would be the case of a defendant in a criminal action. The underlying right to counsel in criminal proceedings is based on the
Particularly in PCHA/PCRA proceedings which have developed in response to an overwhelming court and appellate review process as a substitute for the writ of habeas corpus, the ineffectiveness claim has surfaced as the last gasp of an accused‘s attempt to have his sentence set aside after depletion of appeals. By claiming ineffectiveness of counsel in failing to present reasonable defenses as an
From this synopsis of the genesis of the ineffectiveness proceeding, we can begin to draw an appropriate rationale as to how and when such a claim may be raised in a termination proceeding. There are many distinctions and few parallels between the criminal proceeding and the termination proceeding.
First, termination proceedings can in no way be compared to criminal proceedings either in a constitutional sense or procedurally. The right to counsel, protected by the
A second distinction which requires that form follow substance is that in criminal cases a liberty stake is at issue. More than anything, ineffectiveness of counsel is raised within the context of Post Conviction Relief Act which is the statutory substitute for habeas corpus cases. The federal system has made a bargain with the states to the effect that if an adequate procedure was developed within the state‘s statutory scheme to grant relief equivalent to federal habeas corpus relief, the federal courts would retreat from wholesale and routine consideration of habeas corpus petitions by convicted incarcerated defendants, hence, the post-conviction collateral relief procedure with singular reliance on the extraordinary aspects of a claim of ineffectiveness of counsel. No comparable habeas corpus right exists in custody cases involving children, in which the federal habeas corpus jurisdiction is implicated. While prior to statutory and rule changes, habeas corpus was the common law means of raising a custody claim in the state trial courts, this has been and still is a matter only within state court jurisdiction and comes within the self-imposed domestic relations exception to federal jurisdiction. Barber v. Barber, 62 U.S. (21 How) 582, 16 L.Ed. 226 (1856). Lest there be any doubt that the exception applies to custody cases, and is still viable in modern times, the recent pronouncement by the United States Supreme Court, Justice Powell speaking for the Court in Lehman v. Lycoming County Children‘s Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), makes this absolutely clear.
Ms. Lehman argues that her sons arе involuntarily in the custody of the State for purposes of § 2254 because they are in foster homes pursuant to an order issued by a state court. Her sons, of course, are not prisoners. Nor do they suffer any restrictions imposed by a state criminal justice system. These factors alone distinguish this case from all other cases in which this Court has sustained habeas challenges to state-court judgments. More-
over, although the children have been placed in foster homes pursuant to an order of a Pennsylvania court, they are not in the “custody” of the State in the sense in which that term has been used by this Court in determining the availability of the writ of habeas corpus. They are in the “custody” of their foster parents in essentially the same way, and to the same extent, other children are in the custody of their natural or adoptive parents. Their situation in this respect differs little from the situation of other children in the public generally; they suffer no unusual restraints not imposed on other children. They certainly suffer no restraint on liberty as that term is used in Hensley [v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973)] and Jones [v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)], and they suffer no “collateral consequences“-like those in Carafas [v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)]-sufficient to outweigh the need for finality. The “custody” of foster or adoptive parents over a child is not the type of custody that traditionally has been challenged through federal habeas. Ms. Lehman simply seeks to relitigate, through federal habeas, not any liberty interest of her sons, but the interest in her own parental rights.
Although a federal habeas corpus statute has existed ever since 1867, federal habeas has never been available to challenge parental rights or child custody. Indeеd, in two cases, the Court refused to allow the writ in such instances. Matters v. Ryan, 249 US 375, 63 L Ed 654, 39 S Ct 315 (1919); In re Burrus, 136 US 586, 34 L Ed 500, 10 S Ct 850 (1890).
Id. at 510-11, 102 S.Ct. at 3237, 73 L.Ed.2d at 936-37.
Having determined that the evolving right to counsel in termination proceedings cannot be traced to the criminal process, it is a fair statement that the criminal process does not apply.
Other considerations that make those procedures inapplicable as indicated above, have to do with the clearly
Such is not the case in a criminal proceeding where the judge is primarily an arbiter to assure compliance with the rules and to determine the correctness of evidentiary and procedural issues, wherein counsel must carry the burden of the prosecution or the defense. Any untoward insertion of judicial activism in the proceeding may itself be a ground for reversal. Also, frequently the jury is the fact finder and is likewise limited by the presentment of the evidence and must conform its decision making to the parameters laid down by the court. Thus, pursuant to a heavy overlay of rules, procedures and statutory and constitutional requirements, the process for review espoused in Strickland v. Washington, supra; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); and Washington v. Maroney, supra, is meaningful. They are a distortion when applied to termination proceedings.
Other relevant factors, set in juxtaposition, clearly show the anomaly which results in engrafting the approach adopted to the criminal proceedings to the termination cases. Criminal proceedings move in a different time frame than do termination proceedings. Failure to move a criminal proceeding within specific times may result in dismissal; such is not the case in termination proceedings. Improper or inadequate action by counsel may be rectified in part or in toto months or years after a final judgment of sentence with benеficial results for the appellant, whereas a review which turns around a decree of termination, unless done within a narrowly constrained time frame, may do incalculable damage to the child with only marginal or questionable benefit to the parent. In Lehman, supra, in denying habeas corpus jurisdiction in the federal courts, the Supreme Court dealt specifically with the harm engendered by delay in such proceedings when it said:
The states interest in finality is unusually strong in child-custody disputes. The grant of federal habeas would prolong uncertainty for children such as the Lehmans’ sons, possibly lessening their chance for adoption. It is undisputed that children require secure, stable, long term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child‘s sound development as uncertainty over whether he is to remain in his current “home” under the care of his parents or foster parents, especially when such uncertainty is prolonged. Extended uncertainty would be inevitable in many cases if federal courts had jurisdiction to relitigate custody decisions.
458 U.S. at 513, 102 S.Ct. at 3238, 73 L.Ed.2d at 938 (emphasis added).
This is no less the case if ineffectiveness issues were permitted to extend and delay such resolution by serial allegations of ineffectiveness or instituting rules of court or
Any determination as to ineffectiveness of counsel must be made expeditiously in the context of the original appeal, as a collateral attack by a post-decree petition and/or appeal, after normal appeals have been exhausted, is not permissible. In Interest of Del Signore, supra (Post Conviction Hearing Act is not available to juvenile proceeding since the child is not convicted of a crime). The question then remains what standard must be applied since we have already determined that the rules on ineffectiveness applied to criminal cases do not fit the proceeding on termination. This is answered by reviving the question of Gault, McKeiver, Winship and Santosky, supra, which is “what process is due?” Gault did not suggest that the juvenile courts become junior criminal courts and while Winship required proof beyond a reasonable doubt, it did not require that the informality and rehabilitative thrust and interest expressed by the concerned juvenile judge be forsaken, nor did the Supreme Court in McKeiver find that jury trials were an essential element to due process in juvenile proceedings. Similarly, we need not ingraft the test espoused by Maroney on termination cases to provide the requisite due process required here. In Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981) (proceeding held pursuant to alleged violations of the Juvenile Act cannot serve the functions of a proceeding held pursuant to alleged violations of the Crimes Code). Since we are constrained by the elimination of the doctrine of fundamentаl error which was renounced by Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), and we cannot
With the acknowledged retreat by the legislature and Supreme Court from time consuming and seemingly endless collateral attacks on the sentence and conviction, we do not wish to adopt a procedure which is to some degree discredited. We must, therefore, adopt a procedure which assures an opportunity to review an ineffectiveness claim, without adding additional procedural steps, additional hearings or remands for appointment of new counsel. Nor would it be aрpropriate to relegate those matters to a collateral attack by means of a habeas corpus action, a possibility suggested by dicta in Del Signore. Lehman, supra, has graphically demonstrated the inadequacy of that approach in termination and custody matters. In the context of a termination proceeding, the best approach to suggest itself is the fundamental fairness doctrine whereby, in the exercise of its broad scope of review, an allegation of ineffectiveness of counsel on appeal would result in a review by this Court of the total record with a determina-
Our usual standard of review in such cases is as follows. An appellate court, in reviewing an order terminating parental rights, must employ a broad, comprehensive review of the record, but is limited in its standard of review to a determination of whether the trial court‘s termination of parental rights is supported by competent evidence; unless the lower court hаs abused its discretion or committed an error of law, the order must stand. In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984).
Applying that standard to the facts of this case, the evidence is overwhelming that termination was mandated. Applying the doctrine of fundamental fairness to the alleged ineffectiveness claim, the failure of counsel to present witnesses as to the possibility of rehabilitation of the mother in this case is of little significance to the result. The evidence of the possibility of rehabilitation is unconvincing in the face of the extremely long period of incapacity, without progress, and the serious deprivation of the child resulting therefrom, which was certain to continue for the indefinite future.
Counsel for the child at trial stated: “I think Children and Youth has done everything possible that they could do, and I think the needs and welfare of this particular child dictate the termination of her parental rights.” (T.T. at 123.) Appellant admits she is currently using downers and is also addicted to Tylenol IV and Dardins (T.T. at 109), and admits she is incapable of caring for the child at the present (T.T. at 113). Her prior unsuccessful attempts at detoxification
We believe the able trial judge Louis Stefan handed down the appropriate decree. We add that despite a very well prepared appellate brief and the strongest arguments that could be made for a case, which is at best desperate, there is no merit to the claim of ineffectiveness of trial counsel. Viewing the allegation of ineffectiveness of counsel, in light of the entire record, we believe the hearing was fundamentally fair and counsel‘s ineffectiveness, if any, played no part in the result. No further delay is warranted and a return of this case to the trial court for rehearing on that issue would be of no avail and would result only in an unwarranted delay of a year or more, with further likely appeals.
Because of the above, the decree of termination must be affirmed.
BROSKY, J., concurs in the result.
BECK and ROWLEY, JJ., concur.
MONTEMURO, J., concurs and dissents, joined by CAVANAUGH and ROWLEY, JJ.
JOHNSON, J., dissents.
ROWLEY, Judge, concurring:
I join in the Concurring and Dissenting Opinion by Judge Montemuro based upon my understanding of his Opinion as expressed in my Concurring Opinion in the companion case of In the Matter of J.P., 393 Pa.Super. ———, 573 A.2d 1057 (1990). In addition, I note that exceptions raising the issue of ineffectiveness of trial counsel were filed in this case by new counsel. Since the instant action for the involuntary termination of parental rights was brought in the Orphans’ Court Division and therefore the Supreme Court‘s Orphans’ Court Rules requiring the filing of exceptions to the decree nisi applied to it,
MONTEMURO, Judge, concurring and dissenting:
I am in full accord with the majority‘s conclusions that effectiveness of counsel is a cognizable issue in the review of termination proceedings; that the rights of the mother herein were justifiably terminated by the trial court, and that appellant‘s legal representation was not of such charac
The majority insists that the standard and manner of reviewing ineffectiveness must be tailored to fit the sort of case in which the allegation of counsel‘s poor performance occurs, in this instance a termination of parental rights. (Majority Opinion at 607-609). However, given the number of contexts in which the right to counsel exists, a logical reading of the action-specific ineffectiveness standard suggested by the Majority would require that there must be a discrete form of testing effectiveness dependent upon the type of proceeding in which it is alleged to have occurred. Clearly, such a schema is unwieldy. It seems more feasible, if only as a practical matter, that where there is a right to counsel it should carry a particular and unmistakable meaning, obvious to everyone involved, whether provider or recipient of the representation.
In fact the method utilized by the Majority in assessing appellant‘s claims, although described as a combination of the standard set by the PCRA and verbalization of the “fundamental fairness” doctrine, is easily recognizable as a close relative of the formula employed in criminal cases, and the analysis applied bears strong resemblance to that which appears in Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989) (Ineffectiveness claim grounded in counsel‘s failure to interview putatively exculpatory witnesses.)
The issue presented by appellant herein is that counsel failed to call witnesses whose testimony would have demonstrated the possibility of appellant‘s recovery from drug addiction at some undetermined future date. The Majority finds that there was more than enough evidence to justify termination. Compare, id., 522 Pa. at 5, 559 A.2d at 506. It further concludes that even the foregone testimony would have little or no effect in vitiating appellant‘s admitted present drug usage and lack of parental capacity. The introduction of such speculative evidence as appellant
The majority dismisses the structure of raising and assessing ineffectiveness claims already provided by parallel systems, the criminal, civil commitment, and paternity action processes, as paradigms unsuitable for adaptation to a termination proceedings because their derivation is from the
It is also the Majority‘s position that “the ineffectiveness of the lawyer does not carry the deleterious impact it would in a criminal case which is purely adversarial and over which the presiding judge acts primarily as arbiter” (Majority Opinion at 609-610). However convincing this notion might be were this the best of all possible worlds, it is not operational in the system as it is now constituted. Harried judges, case-laden by the demands of populous judicial districts, or in some instances bearing the entire judicial burden of the areas they serve, may, despite a full measure of dedication, simply lack the time to perform the role of parens patriae in any meaningful way. It is also unfortunately true that in the real world, not all probation officers, social workers, and other personnel assigned the duty of dealing with the problems of children, and sometimes acting as their advocates, possess the same, or the necessary degree of intelligence, dedication, compassion and interest. Under our system of jurisprudence there is no substitute for competent legal counsel whose primary responsibility it has always been to ferret out all facts of a case and bring them to the attention of the trial judge. This fact was clearly recognized by the Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and motivated the аssignment to the juvenile system of those due process, and other, rights which it now enjoys. Indeed, recognition of the necessity for their formalization was driven by arguments such as those the Majority makes. Comparison with the juvenile system is apt because the procedural track established for Juvenile Court proceedings closely parallels what occurs in termination actions. Moreover, the same gaps in procedure exist, viz., guidance on the treatment of ineffectiveness claims. The Majority‘s insistence that the court would inevitably be hindered in its performance by procedural or “technical” requirements becomes less persuasive in light of the finding by Justice Fortas, that “unbridled discretion, however benevolently
While the Majority suggests that the direct appeal process coupled with the broad scope of appellate review are jointly adequate to meet the exigencies of whatever might occur in a termination case, this belief ignores the impact of the waiver doctrine on claims not properly preserved for our review. See, In re Sanders Children, 454 Pa. 350, 312 A.2d 414 (1973) (Issues not properly raised in court below would not be considered on appeal from judgment involuntarily terminating parental rights.) Hence, the expectation that fundamental fairness will allow us to resolve issues of trial error or counsel‘s representation becomes a vain hope.
It is insisted that the imposition of procedural requirements would affect the brevity of time within which matters involving the welfare of children are handled, and that our access to the whole record obviates the necessity for, e.g., remand for hearing, appointment of new counsel, or any other time-consuming intermediate remedial or investigatory steps. However, the question of delay reflects more upon the size of the criminal system than upon an inherent defect in the procedure prescribed to test ineffectiveness claims; the presentation of such a claim in the context of termination proceedings would offer no greater guarantee of remand than it does in the criminal system. As the analysis performed by the Majority in this case demonstrates, the obstacles to presenting a meritorious case of ineffectiveness are formidable: since counsel is presumed to be competent, he/she may not be second-guessed on appellate review; the issues must, a priori, have arguable merit; the strategies chosen by counsel must have no reasonable basis designed to effectuate the client‘s interests; if proven, the ineffectiveness must have had some discernable prejudicial effect. Some of this must be persuasively argues before remand is warranted, and mere
What is lacking now is any suggestion about what must occur where the necessity an explanation of counsel‘s actions becomes apparent. Without remand we would not have a complete record, and without new counsel, there would be no one to raise and/or preserve the issue unless trial counsel were willing to accuse him or herself of malfeasance. A party seeking to terminate parental rights must do so by clear and convincing evidence. In re Shives, 363 Pa.Super. 225, 525 A.2d 801 (1987). It may be that absent the assistance of competent counsel, the evidence will, although meeting the standard, not reflect the true circumstances of the case.
In summary, I believe the majority overemphasizes the differences existing between this and other sorts of proceedings in order to deny applicability of similar procedures and standards. What is common to all of the cases in which the ineffectiveness formula is used, is that despite the theoretical lack, in some instances, of truly adversarial parties, e.g., dependency, delinquency and termination proceedings, civil commitments, paternity determinations, it is always the state, with its superior and seemingly endless legal resources, against which a defense must be mounted. The majority would also have us assume that it is only the state which can represent the child‘s best interests. This theory obviates the necessity for any system, since it would be redundant to litigate a foregone conclusion. As no liberty interests would be involved, and if indeed these are the sole consideration, the state need only seize those children whose parents are alleged to perform their responsibilities poorly, and give them to others, either institutions or individuals whom the state has determined to be worth, an absurd scenario. Whether the end result involves incarcer
If such purely procedural requirements as the Rules of Appellate Procedure find universal application to cases of widely diverse provenance, interest, and relief, I see no reason why the methodology for dealing with ineffectiveness claims posited as desirable in In Re Smith, ——— Pa.Super. ———, 573 A.2d 1077 (1990), and In Re Cunningham, ——— Pa.Super. ———, 573 A.2d 1096 (1990), cannot be applied here. In the last analysis, adoption of these procedures would, I believe operate in the best interests of the child.
CAVANAUGH and ROWLEY, JJ., join.
BECK, Judge, concurring:
The principal issue presented is whether a mother whose parental rights were involuntarily terminated was wrongfully denied the effective assistance of counsel at the termination proceeding.1 I agree with the majority that a decree terminating parental rights may not be disturbed on appeal on the basis of a parent‘s ineffectiveness of counsel claim unless the performance of counsel affected the outcomе of the termination proceeding. I also agree that the appellant in this case has failed to prove that she was prejudiced by any error or omission on her counsel‘s part. Accordingly, I concur in the result reached by the majority. I write separately, however, since I differ with some aspects of the majority‘s legal analysis.
S.F., the appellant in this case, had persistent problems with drug addiction that interfered with her ability to raise her daughter T.M.F. In light of S.F.‘s failure to respond to drug treatment programs, the Montgomery County Office
We must consider a challenge to the effectiveness of trial counsel raised on direct appeal from an order terminating parental rights. This case does not involve a collateral attack on a parental termination order. Nor does this case involve an application of the right to effective assistance of counsel to juvenile delinquency proceedings. The majority‘s discussion of the writ of habeas corpus as well as the majority‘s commentary regarding the rights of juveniles is obiter dictum. I would defer consideration of these matters until they are squarely presented for review.
Turning to the issue at hand, appellant maintains that her former attorney did not provide effective assistance at the parental termination proceeding. In order to evaluate this claim, it is necessary to conduct a three part inquiry. First, does a parent have a right to counsel at a termination proceeding? If so, does this right to counsel entail a right to have counsel render effective assistance? Moreover, if effective assistance is required, what standard should be used to determine whether counsel‘s performance has been so poor as to justify vacating a termination decree? Only after considering these preliminary questions can we decide whether appellant is entitled to relief.
I.
The starting point for an analysis of the right to legal representation in termination proceedings is the text of the Adoption Act.
At least ten days’ notice shall be given to the parent or parents, putative parents, or parent of a minor parent whose rights are to be terminated.... The notice shall state the following:
“A petition has been filed asking the court to put an end to all rights you have to your child (insert name of child). The court has set a hearing to consider ending your rights to your child.... You have a right to be represented at the hearing by a lawyer. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the office set forth below to find out where you can get legal help.
(Name)........................................................
(Address).....................................................
......................................................................
(Telephone number)................................”
Section 2513(b) indicates that parents have a right to obtain counsel by their own efforts and to bring this counsel with them to the termination hearing. This section does not mandate that the court itself appoint or provide counsel for the parent, nor does it create an obligation on the part of the state to ensure that counsel is available.2 Thus,
The leading case on the constitutional question in this Commonwealth is In re: Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (1973). In Adoption of R.I., the natural mother did not have access to counsel at the time of the termination hearing. On appeal from a final decree terminating her parental rights, the Pennsylvania Supreme Court unanimously concluded that indigent parents have a right to the appointment of free counsel. In reaching this decision, the Court did not conduct a particularized examination of the natural mother‘s need for legal assistance. The Court instead stressed the vital importance of the right to counsel in all involuntary termination proceedings:
In has long been established that an individual is entitled to counsel at any proceeding which may lead to the deprivation of “substantial rights.” Coleman v. Alabama, 399 U.S. 1 [90 S.Ct. 1999, 26 L.Ed.2d 387] (1970), In re: Gault, 387 U.S. 1 [87 S.Ct. 1428, 18 L.Ed.2d 527] (1967), United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967), Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), Com. ex rel. Rambeau v. Collins, 455 Pa. 8, 314 A.2d 842 (1973). Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968). While the above-cited cases are criminal in nature, the logic behind them is equally applicable to a case involving an indigent parent faced with the loss of her child. In the words of the Court of Appeals of New York, which reached the same conclusions in the Matter of Ella R.B. [30 N.Y.2d 352, 334 N.Y.S.2d 133, 136], 285 N.E.2d 288, 290 (1972): “A parent‘s concern for the liberty of the child, as well as for his care and control,
involves too fundamental an interest and right [citing cases] to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer. To deny legal assistance under such circumstances would—as the courts of other jurisdictions have already held [citing cases]—constitute a violation of his due process rights and, in light of the express statutory provision for legal representation for those who can afford it, a denial of equal representation of the laws as well. As the Federal District Court wrote in the very similar Cleaver case [Cleaver v. Wilcox, decided March 22, 1972 (40 U.S.L.W. 2658)], ‘whether the proceeding be labelled “civil” or “criminal,” it is fundamentally unfair, and a denial of due process of law for the state to seek removal of the child from an indigent parent without according the parent the right to the assistance of court-appointed and compensated counsel... Since the state is the adversary... there is a gross inherent imbalance of experience between the parties if the parents are not represented by counsel. The parent‘s interest in the liberty of the child, in his care and in his control, has long been recognized as a fundamental interest... Such an interest may not be curtailed by the state without a meaningful opportunity to be heard, which in these circumstances includes the assistance of counsel.’ ” ....
In the instant case... appellees are attempting to terminate appellant‘s parental rights against her opposition. Consequently, the appellant‘s adversaries have the burden of proving that they are entitled by law to terminate those rights. In such a proceeding, it would be grossly unfair to force appellant to defend against the appellee‘s case without the assistance of someone, trained in the law, who could test the appellees’ case by the rules of evidence and the techniques of cross-examination.
455 Pa. at 31-33, 312 A.2d at 602-03.
In the sixteen years since Adoption of R.I. was decided, counsel for indigent parents have routinely participated in
Lassiter has undermined Adoption of R.I., at least insofar as Adoption of R.I.‘s broad right to counsel holding was based on the federal due process clause. It is unclear, however, whether Adoption of R.I. was decided solely on federal grounds. This court has previously suggested that Adoption of R.I. could be viewed as a state constitutional law decision. Corra v. Coll, 305 Pa.Super. 179, 187 n. 7, 451 A.2d 480, 485 n. 7 (1982). I would find that the
Although the Pennsylvania Constitution does not explicitly refer to due process, “it has been recognized that Article I, sections 1, 9, and 26 combine to provide the counterpart of the federal due process and equal protection provisions.” Gondelman v. Commonwealth, 520 Pa. 451, 466 n. 11, 554 A.2d 896, 903 n. 11 (1989), cert. denied, --- U.S. ---, 110 S.Ct. 146, 107 L.Ed.2d 105 (1989).
Section 1. Inherent rights of mankind
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
I have little difficulty in concluding that among these inherent rights is the right of a parent to enjoy the companionship of her child. As we recently noted in In re Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989) (en banc):
The family is an institution which preceded governments. Its sanctity was universally recognized before
judges or statutes or constitutions or welfare organizations were known to man. The right of a child to a mother and a mother to a child are rights created by natural law. They are rights attributable to the nature of mankind rather than to enactments of law.
Id., 385 Pa.Superior Ct. at 464, 561 A.2d at 769 (citing In re Rinker, 180 Pa.Super. 143, 147, 117 A.2d 780, 783 (1955)).
One must therefore determine under what circumstances the state may deprive the parent of her
First, the interest that a parent has in the care and companionship of her child is qualitatively different from the interests that are implicated in most other civil proceedings. What is at stake is not a mere property right but the right to maintain what will often be the most important relationship in a person‘s life. Moreover, termination does not involve a temporary or limited interference with the parent‘s freedom to associate with the child; “[t]ermination of parental rights is the death sentence to a parent-child relationship.” In re Coast, 385 Pa.Super. at 483, 561 A.2d at 778 (Tamilia, J., concurring). It is true that a termination decree will not directly result in the loss of the parent‘s own freedom from physical confinement. Yet, I have no doubt that vast numbers of parents would far prefer to serve a term of imprisonment than have their children taken from them and adopted by others. Accordingly, it does not seem fair to begin an analysis of the right to counsel in termi
Second, when interpreting our state constitution, we should bear in mind the experience of the people and institutions of this Commonwealth as it relates to the subject at hand. In the years since Adoption of R.I. was decided, our family courts have proceeded on the assumption that counsel for parents in involuntary termination proceedings is constitutionally required. The appointment of counsel for the parent is now a customary part of termination proceedings and our state child service agencies have adjusted to the burden of seeking termination decrees in an adversary setting. Thus, it would be difficult to argue that the state‘s interest in opposing the appointment of counsel is a strong one.4 Moreover, it is likely that failing to appoint counsel would run contrary to a widespread perception that legal representation in termination proceedings is a fundamental entitlement.
Third, a bright line rule that counsel is required in involuntary termination cases would promote fairness and judicial economy. The problems posed by a case-specific test for the right to counsel were thoughtfully explored by Justice Blackmun in his dissenting opinion in Lassiter:
[T]he case-by-case approach advanced by the Court... entails serious dangers for the interests at stake and the general administration of justice. The Court assumes that a review of the record will establish whether a defendant, proceeding without counsel, has suffered an unfair disadvantage. But in the ordinary case, this simply is not so. The pleadings and transcript of an uncounseled termination proceeding at most will show the obvious blunders and omissions of the defendant parent.
452 U.S. at 50-51, 101 S.Ct. at 2171-72 (Blackmun, J., dissenting).5
For all of the above reasons, I would adhere to the policy enunciated by the Pennsylvania Supreme Court in Adoption of R.I., supra. I would find that in this Commonwealth all parents have a constitutional right to be represented by counsel in involuntary termination proceedings.
II.
Since parents do have a right to counsel in involuntary termination proceedings, we must begin to define the scope and content of this right. In criminal cases, “[i]t has long been recognized that the right to counsel is the right to the
Only an effective advocate can perceptively cross-examine witnesses, cogently argue a client‘s position to the trial judge, or take other action necessary to ensure a fair hearing for the client. Unless counsel for parents in termination proceedings are held to a minimum level of competence, the parent‘s right to counsel would be nothing more than a right to be accompanied into court by an individual who may be utterly incapable of defending his client‘s interests. I would therefore find that the state constitutional right to counsel in termination proceedings encompasses a right to the effective assistance of counsel.
III.
We must next consider under what circumstances the right to the effective assistance of counsel in termination proceedings would be violated. In other words, when would a poor performance by parent‘s counsel provide a sufficient basis for vacating a parental termination order and remanding for a new termination hearing? In answering this
The test for determining whether a criminal defense attorney has provided effective representation is familiar to the bench and the bar. As the Pennsylvania Supreme Court recently noted:
We have taken great pains to set forth the criteria that must be established when one attempts to assert the ineffectiveness of counsel. The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client‘s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel‘s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).
Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989).
This language highlights certain minimal requirements for establishing ineffective assistance of counsel that should also apply to appeals from parental termination
This does not mean, however, that the analysis undertaken in both types of cases should be identical. A termination hearing is not simply a contest between the parent and the state; the result of the hearing has a direct, profound, and inevitable effect upon a third party—the child. Once parental rights are terminated, the child will be removed from the parent‘s custody and control and placed in a new family environment. The child will usually form strong bonds to her new adoptive parents, or to foster parents or other caretakers as the case may be. The more stable the new environment, the more likely that the child will successfully overcome the trauma associated with the termination proceedings. Thus, a decision to reverse a decree of termination and remand for a new hearing may seriously jeopardize the child‘s psychological and emotional well-being.
In light of the unique impact that termination will have on the life of the child, the Commonwealth has a powerful interest in preserving the finality of a parental termination decree.6 This extraordinary need for finality distinguishes parental termination proceedings from criminal proceedings as well as from nearly all other civil proceedings. Accord
These observations are consistent with the “fundamental fairness” test for ineffectiveness of counsel proposed by the majority. Majority Op. at 615-616. I agree with the majority that upon review of an ineffectiveness claim, an appellate court must focus squarely on whether “any failure of [counsel‘s] stewardship was the cause of the decree of termination.” Id. However, I see no reason why an allegation of ineffectiveness of counsel should automatically “result in a review by this Court of the total record with a determination to be made whether on the whole, the parties received a fair hearing, [and] the proof supports the decree by the standard of clear and convincing evidence.” Id. If a parent wishes this court to review the sufficiency of the evidence supporting the termination decree, the parent should raise a separate challenge to the sufficiency of the evidenсe.
The issue of whether the termination decree is supported by sufficient evidence should not be confused with the issue of whether trial counsel has been ineffective. Wholly apart from any consideration of ineffectiveness of counsel, it is well established that an appellate court must vacate a
Claims of ineffective assistance will usually come into play in cases where there is competent evidence from which a judge could conclude that termination of parental rights is mandated by statute. The majority suggests that under such circumstances, ineffective assistance of counsel would never provide a basis for affording the parent relief. See Majority Op. at 606. I disagree. Ineffective assistance of counsel may be difficult to establish but it should not be impossible to do so. Suppose, for example, that the trial court determined that parental rights could be terminated because counsel failed to impeach the witnesses who testified against the parent. Or suppose that counsel neglected to present conflicting evidеnce that strongly bolstered a parent‘s claim that she had not neglected her children. In such cases, justice requires that the parent have an opportunity to prove that the outcome of the termination proceeding was the result of counsel‘s incompetence. Cf. In re Manuel, 389 Pa.Super. 80, 566 A.2d 626, 629 n. 7 (1989) (denial of right to counsel in dependency proceeding requires remand despite sufficiency of evidence supporting trial court order since “evidence below was completely one-sided“).
In the case sub judice, however, appellant has clearly failed to carry her burden of proof. In her brief to this court, appellant claims that her attorney should have asked her mother, her drug counselor, and other unspecified wit
JOHNSON, Judge, dissenting.
The majority finds that Pennsylvania case law requires counsel be provided in termination proceedings. The majority then presumes that counsel would and should be effective. To the extent that the majority holds that there exists a right to effective assistance of counsel in proceedings for involuntary termination of parental rights under the Adoption Act, I dissent.
The principle of effective assistance of counsel is a legal term of art. It has very clear constitutional underpinnings within the
It is true that our Pennsylvania Supreme Court has held that an indigent mother whose parental rights were being terminated was entitled to be advised of her right to counsel and to appointment of counsel prior to the hearing at which
Since the case In re Adoption of R.I., supra, relies heavily on federal criminal cases involving the
It appears clear that there is no federal constitutional requirement for appointment of counsel in parental status termination proceedings. Lassiter, supra. The only case in Pennsylvania suggesting the right to counsel, In re Adoption of R.I., supra, was decided before Lassiter, utilizing federal precedent which has been rendered inapposite by the Supreme Court‘s express holding in Lassiter. Although our state supreme court might, in the future, determine that a parent may raise ineffectiveness of counsel as a separate ground for reviewing the trial court‘s action in a parental rights termination case, it has not as yet done so.
In fact, the Pennsylvania Supreme Court has extended the right to effective counsel in only one non-criminal context, civil commitment proceedings involving an alleged mental incompetent, consistent with the protections required when the state seeks to deprive an individual of her physical liberty. In re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982), affirming 279 Pa.Super. 401, 421 A.2d 261 (1980). The liberty interests of S.F. are not implicated on this appeal. Consequently, I am unwilling to assume, as does the majority, that ineffectiveness of counsel is a relevant consideration within the context of a termination hearing.
The central question as I see it is not how the issue of ineffectiveness of counsel may be raised and measured, but rather whether any sound argument can be advanced for further extending this term of legal art beyond its home in the
I found no such persuasive argument in a companion case involving a dependency proceeding, In the Matter of J.P., ——— Pa.Super. ———, 573 A.2d 1057 (1990) (Dissenting Opinion, Johnson, J.). I find no such argument here. The concept of ineffective assistance of counsel has no place in a civil parental status proceeding where the court, in terminating the rights of a parent, is obliged to give primary consideration to the needs and welfare of the child.
As a result of my independent review of the record, I conclude that there exists clear and convincing evidence to support the trial court‘s conclusion terminating appellant‘s parental rights pursuant to
Notes
§ 2511. Grounds for involuntary termination
(a) General rule.---The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
....
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parents are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(b) Other considerations.-The court in tеrminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.
Nor does the Judiciary and Judicial Procedure Code require court appointment of counsel in termination proceedings. The Code simply states: “In all civil matters before any tribunal every litigant shall have a right to be heard, by himself and his counsel, or by either of them.”§ 2501. Appearance in person or by counsel
(a) Civil matters-In all civil matters before any tribunal every litigant shall have a right to be heard, by himself and his counsel, or by either of them.
(b) Criminal matters.-In all criminal prosecutions the accused has a right to be heard by himself and his counsel.
Four dissenting justices would have recognized a federal constitutional right to counsel in all involuntary termination cases. See 452 U.S. at 35-59, 101 S.Ct. at 2163-76 (Blackmun, J., dissenting, joined by Brennan, J. and Marshall, J.) and 452 U.S. at 59-60, 101 S.Ct. at 2176 (Stevens, J., dissenting).Of course, the case-by-case approach announced by the Court today places an even heavier burden on the trial court, which will be required to determine in advance what difference legal representation might make. A trial judge will be obligated to examine the State‘s documentary and testimonial evidence well before the hearing so as to reach an informed decision about the need for counsel in time to allow adequate preparation of the parent‘s case.452 U.S. at 51 n. 19, 101 S.Ct. at 2172 n. 19.