Mimesis Law
28 May 2020

Carrington: You Only Get Effective Counsel When We Say You Do

Feb. 1, 2016 (Mimesis Law) — The Carrington opinion, filed January 29 by the Tennessee Supreme Court, answered what appears at first blush an asinine question for any Supreme Court to consider.  When is a person entitled to assistance of counsel, but not “effective” assistance of counsel?  The majority’s answer is when the State seeks to terminate your parental rights.

Given…existing procedural safeguards, we decline to hold that securing the constitutional right of parents to fundamentally fair procedures requires adoption of an additional procedure, subsequent to or separate from an appeal as of right, by which parents may attack the judgment terminating parental rights based upon ineffective assistance of appointed counsel.

The family at the center of In re Carrington H. wasn’t exactly the Waltons.   Tennessee’s Department of Children’s Services had been “providing services” to the mother, father, and their six children for almost ten years.  During the various dependency and neglect proceedings held from the time of the youngest child’s birth, they “waived their right to an adjudicatory hearing” and stipulated to various findings that their children were “dependent and neglected” on numerous grounds.

It’s the Juvenile Court version of a plea deal. If parties “stipulate,” it’s usually to get something in return, like visitation after a judge ordered your children into State custody and denied you contact of any sort with them.

It also means you’re on the Department’s radar, tied to a document called a “permanency plan,” detailing your path to penance for being a Bad Parent, and following it to the letter on pain of losing your right to parent your children forever.

Mother, according to the Department of Children’s Services, was “mentally unstable,” engaged in “inappropriate sexual [conduct] with her children” and didn’t have a safe residence for her six kids. Dad’s sole engagement with his children was to beat them.

The Department moved in October 2013 to terminate the mother’s parental rights, as father had since surrendered his and the children hadn’t seen or visited with mom in eight years. Mother got court appointed counsel, as provided by statute, and her attorney did what competent attorneys do: zealously represented the client through a full-blown trial.

Mom lost her case, and her court-appointed counsel of six years took the case to the Court of Appeals.  The appellate court affirmed the original decision, since mother’s lawyer didn’t challenge the trial court’s finding she lacked the mental capacity to parent.  Crazy mommy was good enough to not upset the status quo.[i]

Mom then proceeded, pro se, to the Tennessee Supreme Court, raising the chestnut of “ineffective assistance of counsel.” Surprisingly, the Supremes took it to address the very question of whether “ineffective assistance of counsel” should be grounds to challenge a court’s decision to terminate parental rights. After a long winded review of whether parents should get counsel in termination proceedings and how the United States Supreme Court has addressed “ineffective assistance of counsel,” the Tennessee Supremes took an unbelievable logical leap and said the Sixth Amendment to the Constitution only granted you “effective assistance of counsel” in criminal proceedings.

The United States Supreme Court has held that, in the absence of a Sixth Amendment right to counsel, there is no constitutional right to effective assistance of counsel, even in proceedings where counsel is appointed by the court…

It’s got to be awfully easy to justify this lunacy by saying “don’t blame us, those OTHER Justices already decided this! We’re just following orders!”

Try to follow this absurdist logic. Child abuse is a criminal offense, and grounds for terminating one’s parental rights.  During your criminal proceeding, you are under this rationale entitled to “effective” assistance of counsel.  When the State the attempts to sever the parental bond because you committed child abuse, you are simply entitled to “counsel.”

It’s surprising only two justices called bullshit on this opinion.

Most states require appointed counsel in termination proceedings to render effective assistance. In a proceeding that may result in the permanent severance of the parental bond, the stakes are high; the effects of a wrong decision are irrevocable and can cause lasting damage to the parent and the child. In these cases, we cannot expect counsel to be perfect, but we can require them to be adequate.

The epic pissing contest between Justice Clark and Chief Justice Lee in the footnotes of the opinion reveal the bizarre contrast between the majority’s idealism and the dissenters’ realism. The majority opinion believes the system in place for terminating parental rights is fundamentally fair, has plenty of procedural safeguards for parents, never gets abused, and protects the children. The dissenting justices realize in order for that system to be “fundamentally fair,” indigent parents need competent counsel.

[i]Before the case went to appeal, mother’s attorney moved to withdraw, citing he’d been on the case since 2007 and a “fresh set of eyes” would better serve mother’s case. The juvenile court never ruled on that motion, so mom’s lawyer went ahead and represented her until the appellate court relieved him.  That’s what good lawyers do.  I also wanted to have an endnote when I wrote about a case filled with footnotes.

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  • Jeff Gamso
    1 February 2016 at 11:35 am - Reply

    We do it by statute in certain death penalty proceedings here in the Buckeye State.

    A person sentenced to death is entitled to appointed counsel to pursue post-conviction relief (essentially matters outside the trial court record and therefore not available for review on direct appeal). Appointed attorneys must be specially certified for their ability competently to handle capital cases.

    All this is specified in Section 2953.21(I) of the Ohio Revised Code. But 2953.21(I)(2) includes this qualifier:

    “The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.”

    Because our legislature understood that it’s important to ensure that those sentenced to die get competent counsel who need not be competent.

  • Diagnosing the Disease: The Defense Can Be Malignant Too
    4 February 2016 at 9:19 am - Reply

    […] saying “effective” assistance of counsel was only necessary in cases where criminal charges were an issue.  Jeff Gamso, in a comment and then subsequent post, took me to task for showing a “symptom,” […]