NY high court: parents in TPR cases have right to effective assistance of counsel

In Matter of Parker J, the NY Court of Appeals (which is the state high court) held for the first time that parents have the right to effective assistance of counsel in child welfare cases.

In the case, the mother’s attorney opted to not speak during the termination of parental rights hearing because he had never spoken to the mother prior to the hearing despite having been appointed 2 months prior.  After being told by the judge that he had to participate, the attorney did not request an adjournment to meet with his client or review records he had not seen.  After meeting briefly with the mother she asked to represent herself, and it became obvious she did not know how.  The judge refused her request to re-appoint counsel and only gave her five minutes to talk privately with her prior counsel, then terminated her rights, a decision that was upheld by the Appellate Division.

The Court of Appeals reversed, relying on the fundamental parenting interests at stake, its prior ruling that parents have a constitutional right to counsel when their parental rights are being terminated, and prior Appellate Division decisions recognizing a right to effective assistance of counsel.  It then held that “We agree with the Appellate Division—as do all parties to this appeal—that the right to assigned counsel in proceedings to terminate parental rights necessarily encompasses the right to effective assistance of counsel.”

The Court noted that in the criminal context it had previously rejected the federal requirement established by the U.S. Supreme Court in Strickland v. Washington that the defendant demonstrate they were prejudiced by the ineffective assistance, because “o]ur focus is on the fairness of the proceeding as a whole”, and it opted to apply the same standard in the family law context.

Applying the standard to the case, it concluded that even if counsel hadn’t spoken to mother due to her non-responsiveness, there was no reason not to ask for an adjournment once mother was present and indicated she would not surrender her parental rights.  The Court also faulted the trial court’s proceeding with the hearing even when mother was obviously unequipped to represent herself and refusing to re-appoint the attorney.

The Parker J. decision was covered by The Imprint.