February 01, 2016

Strickland Test Applied to Claim of Ineffective Counsel at Termination Proceeding

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re M.P., 2015 WL 6652624 (Me.). 

As a matter of first impression, a direct appeal from an order terminating parental rights could include a claim that the parent’s attorney provided ineffective assistance if the record was sufficient to permit a fair evaluation of the parent’s claim. The Strickland test, requiring proof of counsel’s deficient performance as well as prejudice, rather than “fundamental fairness” standard, applied in evaluating the claim. 

When the mother gave birth to her daughter, M.P., the medical center contacted the child welfare agency regarding the mother’s inability to meet the child’s basic needs and remember instructions. The agency filed a petition for a child protection order, and M.P. was placed with her mother’s aunt.

The court eventually terminated the mother’s parental rights, finding that while she was not unwilling, she was unable to protect the child or take responsibility for her in a time reasonably calculated to meet the child’s needs. The mother had cognitive limitations and suffered from anxiety and depression.

In her appeal, the mother claimed her attorney had failed to call or subpoena witnesses who would have testified about her strengths and ability to parent M.P., and had neglected to prepare her to testify on her own behalf. The mother requested an evidentiary hearing to call witnesses on her behalf and present her own prepared testimony.

The court looked to how ineffective assistance of counsel claims are handled in the criminal context and found the mother had failed to prove her former attorney’s performance was “outside the normal or typical range of trial work in termination cases.” The court also found other witnesses would not have made any appreciable difference in the evidence. Although the mother’s attorney could have prepared for the termination hearing differently, she was not required to do so and did not fail in her obligations to competently represent the mother before or during trial. When the court found the attorney’s performance did not cause actual prejudice to the mother, she appealed.

In its ruling, the Maine Supreme Court sought to quickly resolve ineffectiveness claims. In the absence of a statutorily created process, the court held that a parent may raise an ineffective assistance of counsel claim in a direct appeal from an order terminating his or her parental rights if there are no new facts that the parent seeks to offer in support of the claim and the record is sufficiently well developed to permit a fair evaluation of the claim.

If the record is not sufficient, the parent must file a motion for relief from judgment within 21 days after the period for appealing the underlying judgment expires. Whether by bringing an appeal or filing a motion, the parent must support a claim of ineffective assistance with one or more affidavits. If a parent fails to comply with the procedure, the claim must be denied because the state has an interest in ensuring stability and prompt permanency for the child. 

The court adopted the Strickland standard applied in criminal cases. While recognizing the standard may need to be modified for termination proceedings, the court considered the deprivation of parental rights to be similar to the deprivation of liberty interests at stake in criminal cases. A more intrusive post-trial inquiry might encourage the filing of more ineffectiveness challenges and delay permanency for children.

In this case, the trial court did not violate the mother’s due process rights by declining to allow her to call other witnesses or abuse its discretion in denying her motion for relief from the termination judgment.