In re K.F.

Dooley, J.,

¶ 32. concurring. I concur, in large part because we are referring the issue of how we or the trial courts should address procedurally an ineffective-assistance-of-counsel claim in a termination of parental rights (TPR) case should we agree that such a claim is available. I stress that I have not yet decided that we should allow ineffective-assistance-of-counsel claims in TPR cases. In making the referral to the family rules committee, I am stating my skepticism that there is a way to determine whether the assistance of counsel is ineffective in a timely way that is consistent with the permanency needs of the child should termination be upheld. My skepticism arises out of our deficient record in resolving ineffective-assistance-of-counsel claims in criminal cases.

¶ 33. We allow ineffective-assistance-of-counsel claims in criminal cases only in post-conviction relief (PCR) proceedings that collaterally attack the conviction. We have seen many of these cases on appeal. Some are resolved on summary judgment — the equivalent to the claims in TPR cases that would require no factual development. But many are not. Last year, we saw one that had remained in the superior court for nine years, see In re Crannell, 2012 VT 85, 192 Vt. 406, 60 A.3d 632, and never moved beyond disputes over whether the petitioner would receive appointed counsel in the PCR.⁶ It is not unusual to see such cases take three years in the trial court. See In re Combs, 2011 VT 75, ¶ 2, 190 Vt. 559, 27 A.3d 318 (mem.). Combs is an example of how protracted PCR proceedings can become. In that case, this Court has twice reversed superior court judgments for the State, and the case is again in the trial court.

¶ 34. The extended time period it requires to resolve claims of ineffective assistance of counsel is inevitable in many cases because of the nature of the petitioner’s burden of proof. Petitioner must show that the assistance of the lawyer in the PCR fell below the standard of effectiveness of reasonably competent counsel. See In re Russo, 2010 VT 16, ¶ 16, 187 Vt. 367, 991 A.2d 1073 (laying out test for ineffective assistance of counsel). In most cases, the petitioner may do so only through an expert witness. See In re Grega, 2003 VT 77, ¶ 16, 175 Vt. 631, 833 A.2d 872 (mem.) (“Only in rare situations will ineffective assistance of counsel be presumed without expert testimony.”)'. At best, locating, recruiting and preparing such a witness will take months. Even a court wholly committed to expediting these cases will find it impossible to prevent extended delay. I am drawn to the procedure implemented in cases like New Jersey Division of Youth & Family Services v. B.R., 929 A.2d 1034 (N.J. 2007), that create a very short time limit in which to make a full evidentiary presentation of the ineffective-assistance-of-counsel claim, but find that time limit wholly inadequate to prepare and present a meritorious claim. Indeed, the short time limit predetermines the result; it can be honored only for ineffective ineffective-assistance-of-counsel claims.

¶ 35. Perhaps the Advisory Committee on Rules for Family Proceedings can find an answer to my concerns, and • I look forward to the results of its work. But if the answer is to import our track record on addressing ineffective-assistance-of-counsel claims from criminal cases to TPRs, I am unlikely to be persuaded that we should open this door at all.

¶ 36. I am authorized to state that Justice Burgess joins this concurrence.

6 I am also concerned that the battle over providing representation will migrate to TPR cases and eat up major time.