At risk of inspiring more “breeder” comments, I wanted to write about a very interesting recent decision from the Vermont Supreme Court (h/t to mike frisch of legal profession blog). The court was considering an ineffectiveness of counsel claim in a termination of parental rights proceeding. The court found that counsel was not ineffective. The more interesting question, left unanswered but highlighted by the concurrence, is whether ineffectiveness claims should be allowed in termination of parental rights cases at all.
The criminal system, and potential incarceration or even execution, are undoubtedly punitive. But so is severing all legal ties to your child, often so that he or she can be adopted by another family, leaving you with no further contact. The tremendous impact of termination proceedings led the Supreme Court to mandate they be decided by clear and convincing evidence. The disproportionate power between the state and the defendant (parent) is reminiscent of that in the criminal system. (A number of people have written about the flaws and inequities towards certain types of parents including me
Comments
It seems to me the ticking clock problem arises *after* the initial trial, not before (which is what the Speedy Trial Clause is concerned with). In criminal cases, there is “time” to relitigate effectiveness-of-counsel after the trial is over, because nothing is awaiting the outcome (except perhaps execution in capital cases). So there is no harm (other than to finality and resources) in relitigating and even in having to do the trial over. In TPR cases, the clock is ticking on the child and the adoptive family to be adopted; they are harmed by having to relitigate and do it over again.
Posted by: Howard Wasserman | Jun 18, 2013 1:13:30 PM
Terrific post, Cynthia. And what a tragic state of affairs, no matter who is right.
But I’m curious about your point about ticking clocks. It’s surely true that many children — perhaps even most — will benefit from an expeditious resolution of the custody question. But isn’t there also a ticking clock in criminal law? Ignored or easily elided as it may be, doesn’t the Speedy Trial Clause likewise call for a quick (if not hasty) resolution? Or is that analogy daft?
Posted by: SparkleMotion | Jun 18, 2013 1:03:14 PM