In re K.B., Juvenile

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2015-006
APRIL TERM, 2015
In re K.B., Juvenile } APPEALED FROM:
}
} Superior Court, Windham Unit,
} Family Division
}
} DOCKET NO. 31-3-12 Wmjv
Trial Judge: Katherine A. Hayes
In the above-entitled cause, the Clerk will enter:
Mother appeals from the denial of her motion to set aside a decision to terminate her
parental rights (TPR) based on her claims of ineffective assistance of counsel. We affirm.
On April 28, 2014, the family division of the superior court terminated mother’s parental
rights with respect to her daughter, K.B., who was born in March 2011 and had been in the
custody of the Department for Children and Families (DCF) since March 2012. Mother’s
attorney filed a notice of appeal of the termination order on behalf of mother on May 22, 2014.
Five days later, mother filed with the family court a pro se letter in which she stated, among
other things, that she was requesting an appeal because of the ineffective representation that she
received from her two attorneys during the CHINS proceedings. The family court responded to
the letter on a motion-reaction form stating that the case was already on appeal. On appeal, we
agreed with mother that her letter could have been construed as a motion to set aside the
judgment under Vermont Rule of Civil Procedure 60(b); accordingly, we remanded the matter to
the family court to consider the motion as such.
On remand, the family court appointed substitute counsel for mother, and the parties filed
opposing memoranda on mother’s Rule 60(b) motion. The family court gave mother fifteen days
to respond to the State’s and K.B.’s opposition to her motion, at which point it would “review all
of the filings, and either make a decision based on them or set the matter for a hearing.” In
response, mother argued that her ineffective-assistance-of-counsel claims should be evaluated
under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984) for criminal
cases. She asserted that certain enumerated actions by her attorneys in the CHINS proceedings
denied her adequate assistance of counsel. She asked the court to decide whether she could bring
ineffective-assistance-of-counsel claims in a TPR proceeding. If the court decided that she could
bring such claims in a TPR proceeding, mother asked the court to either schedule an evidentiary
hearing or determine that the issue must be part of mother’s direct appeal to this Court from the
termination order.
In a written decision issued on November 17, 2014, the family court denied mother’s
Rule 60(b) motion without holding an evidentiary hearing. After noting that this Court has not
yet determined whether ineffective-assistance-of-counsel claims can be brought in TPR
proceedings, the family court reviewed mother’s allegations under the Strickland standard. The
court determined that an evidentiary hearing was unnecessary because mother’s general
allegations amounted to nothing more than her disagreement with certain trial strategies and her
dissatisfaction with the legal process. The court noted that the only specific allegation made by
mother was that her trial attorney failed to call her mother to testify. The court cited several
legitimate grounds for not calling the maternal grandmother to testify, including the
grandmother’s difficult relationship with mother and desire to adopt K.B. The court—the same
trial judge who proceeded over the TPR proceeding—also rejected mother’s general allegations
of her trial court attorney’s unpreparedness, stating that the attorney showed no signs during the
TPR hearing of being unprepared. Finally, the court determined that mother had failed to make a
persuasive argument that any prejudice resulted from her attorneys’ representation. The court
concluded that even if none of the ineffective actions of counsel alleged by mother had occurred,
the outcome of the TPR hearing would have been the same because the primary basis for
terminating her parental rights was the stipulated CHINS finding that K.B. was badly bruised as
an infant in mother’s custody and that mother failed to take steps necessary to be able to resume
her parental duties over the following two years.
On appeal, mother argues that this Court’s remand to the family court was rendered “an
empty exercise” for two reasons. First, mother claims that her new attorney did not address
mother’s claims of abusive treatment and intimidation by her prior attorneys and failed to
provide any factual development of her claims even though the family court had indicated to the
parties that it might decide the matter without a hearing. Second, mother argues that the family
court failed to follow this Court’s mandate and allowed mother’s new counsel to effectively
abandon all of mother’s claims by deciding the case without development of a factual record.
The State and K.B. assert that the trial court committed no error and ask us to affirm the court’s
decision.
We discern no basis to overturn the family court’s decision denying mother’s Rule 60(b)
motion. While holding an evidentiary hearing was certainly a possibility on remand, we did not
presume the necessity of an evidentiary hearing when we remanded the matter “for consideration
of mother’s motion.” Thus, the family court did not fail to follow this Court’s mandate when it
decided mother’s motion without holding an evidentiary hearing. We also reject mother’s
assertion that the family court effectively allowed her new attorney to abandon all of mother’s
claims. The attorney stated all of mother’s allegations, most of which were—as the family court
pointed out—nonspecific claims of ineffectiveness and unpreparedness. The attorney sought
either an evidentiary hearing before the family court on those claims or a determination that the
claims should be adjudicated before this Court. As it turned out, the family court found no basis
to hold an evidentiary hearing because: (1) most of mother’s nonspecific allegations concerned
trial strategy generally not susceptible to reevaluation in hindsight; (2) the one specific allegation
involved a strategy that plainly did not fall below a reasonable standard of competence; and (3)
in any event, there was no showing of prejudice because none of the allegations undercut the
basis for the termination decision—the stipulated CHINS findings concerning K.B.’s significant
bruising when she was removed from mother’s care and mother’s failure to do what she needed
to do to be in a position to resume her parental rights within a reasonable period of time from the
perspective of the child, who had spent two-thirds of her young life in DCF custody. See
Alexander v. Dupuis, 140 Vt. 122, 125 (1981) (rejecting argument that trial court’s failure to
hold hearing on Rule 60(b) motion resulted in denial of due process because that facts stated in
motion, “even if proved, would lead to a denial of the motion”).
Mother acknowledges the “inescapable conclusion” that her allegations on the current
record could not survive the Strickland standard, but provides no proffer indicating that further
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factual development could have demonstrated either ineffective assistance on the part of
mother’s trial attorneys or prejudice to mother from her attorneys’ alleged errors. We will not
presume that mother’s new attorney could have produced evidence that would have compelled
the family court to hold an evidentiary hearing. The attorney stated mother’s allegations and
requested an evidentiary hearing to consider them. For the reasons stated above, the family court
properly denied the request for a hearing.*
Mother complains that the new attorney did not elaborate on allegations of abusive
treatment and intimidation raised in mother’s original Rule 60(b) letter. That letter was part of
the record before the family court on remand. Mother stated in the letter, among other things,
that one of her former attorneys: (1) became hostile and frustrated at a meeting prior to the TPR
hearing when mother was not willing to relinquish her parental rights voluntarily; (2) warned her
on the morning of the TPR hearing of the possibility that she could be criminally charged with
child abuse if she testified at the hearing; and (3) told her several months after the TPR hearing
that if she had another child the State would take the child from her right away. The first and
third allegations, even if true, do not provide a reason to reopen the termination proceedings.
They relate to the way counsel communicated advice to mother, but have nothing to do with the
evidence presented to the court in the TPR hearing or the outcome of that hearing. The second
allegation involves trial strategy as to whether mother should testify. Even if this allegation is
true, mother makes no proffer that her attorney would not have a reasonable basis for advising
her concerning the possibility of a criminal charge in the context of discussing the potential
consequences of her testifying, where the facts of the case—a CHINS stipulation that K.B. was
badly bruised while in her mother’s care when she came into DCF custody—could conceivably
lead to a charge of child abuse. In short, the family court did not err in denying mother’s Rule
60(b) motion without a hearing based on the parties’ submissions.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
*
We do not here decide whether ineffective assistance of counsel may be a basis for a
Rule 60(b) challenge to a TPR decision. We merely hold that even if it is, mother has failed to
show ineffective assistance. See In re K.F., 2013 VT 39, ¶ 22, 194 Vt. 64 (“[W]e do not decide
in this case whether a parent in a TPR case has a statutory or constitutional right to challenge the
effectiveness of counsel because we conclude that even if such a challenge can be brought, and
even accepting for the sake of argument father’s allegations about counsel’s shortcomings, father
in this case cannot meet the Strickland standard.”).
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