as: 666 P.2d 42)
Court of Alaska.
of Alaska, Appellee.
June 17, 1983.
Mother appealed from order of
the Superior Court, Fourth Judicial District, Fairbanks, Gerald J. Van
Hoomissen, J., which terminated parental rights. The Supreme
Court, Compton, J., held that: (1) mother had due process right
under the Alaska Constitution to appointment of counsel to represent her;
(2) mother did not have the right to choose counsel; (3) mother
had the right to effective assistance of counsel; and (4) mother
received effective assistance of counsel.
has a right to counsel in proceedings brought to terminate his or her
parental rights. Children's Procedure Rule 15.
process clause of the Alaska Constitution guarantees indigent parent the
right to court-appointed counsel in proceedings for the termination of
parental rights. Const. Art. 1, § 7.
the right to counsel is constitutionally guaranteed in a particular proceeding,
the effective assistance of counsel is also constitutionally
had constitutional right to effective assistance of appointed counsel
in proceedings brought to terminate her parental rights. Const.
Art. 1, § 7.
demonstrated that mother was aware that counsel had been appointed to
represent her in proceeding for termination of her parental rights and
that she was not denied effective assistance of counsel on the theory
that she had not been informed of the appointment.
process clause of the Alaska Constitution does not guarantee a meaningful
relationship between client and appointed counsel and does not give client
the right to choose counsel to represent the client in a termination of
parental rights proceeding. Const. Art. 1, § 7.
requirements of the Indian Child Welfare Act were complied with, failure
of counsel appointed to represent mother in termination proceedings to
argue that the Act was applicable was not a cause for reversal of the
termination of the mother's rights. Indian Child Welfare Act of
1978, §§ 4(c), 102(a, d, f), 25 U.S.C.A. §§ 1911(c),
1912(a, d, f).
either the mother did not inform her boyfriend of the importance which
she placed upon his appearance at hearing for the termination of her parental
rights or else the boyfriend nevertheless chose not to appear, failure
of the boyfriend to have been subpoenaed did not show that mother received
ineffective assistance of counsel in the proceedings.
Robert B. Downes, Cole & Downes, Fairbanks, for appellant.
Niesje J. Steinkruger, Asst.
Atty. Gen., Fairbanks, and Norman C. Gorsuch, Atty. Gen., Juneau, for
Mary E. Greene, Asst. Public
Defender, Fairbanks, Dana Fabe, Public Defender, Anchorage,
for guardian ad litem.
Before BURKE, C.J., and RABINOWITZ,
MATTHEWS and COMPTON, JJ.
This is an appeal brought by
V.F. from an order of the superior court terminating her parental rights
as to her four minor daughters, H.F., D.F., R.F. and M.B. V.F.
contends that the judgment should be reversed because she did not have
the effective assistance of counsel during the proceedings. For
the reasons set forth below, we hold that parents have a constitutional
right to the effective assistance of counsel in proceedings brought to
terminate their parental rights. We conclude, however, *44
that V.F. was not deprived of this right and we therefore affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Over the past ten years, V.F. has demonstrated that she has serious problems
in providing proper care for her four children; it is unnecessary
for the purposes of this appeal to recite in detail the nature of these
problems. The most recent state intervention began in December
1980, when the state petitioned the superior court for a Temporary Placement
Hearing. As a result of
this hearing, V.F.'s four children were committed to the custody of the
Department of Health and Social Services. The three older
children, then eleven, eight and six years of age, have remained in foster
care since that time. The youngest child, then an infant,
has been placed in the custody of her natural father.
The Department of Health and
Social Services filed a Petition for Adjudication of Children in Need
of Aid, and on January 9, 1981, Daniel Saluri was appointed by the court
to represent V.F. in the proceeding. On March 31, 1981, the
court ordered the parties to comply with a comprehensive stipulation they
had entered into, by which V.F. agreed to perform certain acts before
custody of the children would be returned to her. In view
of V.F.'s previous problems, the stipulation specifically noted that unless
significant progress was made by V.F., the department would seek termination
of her parental rights.
V.F. failed to comply with the
provisions of the stipulation, and on March 22, 1982, the department filed
a Petition for Termination of Parental Rights. The hearing
on the petition was held from June 28 to July 1, 1982. On
July 30, 1982, the superior court entered its order terminating V.F.'s
parental rights. V.F. appeals from this order.
II. EFFECTIVE ASSISTANCE OF COUNSEL
V.F. contends that she was denied the effective assistance of counsel
during the proceedings to terminate her parental rights. Before
turning to an examination
of the facts in this case, it is first necessary to determine whether
a right to the effective assistance of counsel exists in proceedings for
the termination of parental rights.
parties do not contest a parent's right to counsel in proceedings brought
to terminate his or her parental rights. Alaska Children's
Rule 15 provides in relevant part as follows:
When the Court Shall
Appoint Counsel. The
court shall appoint counsel to represent the child, his parents, guardian,
or custodian, when the assistance of counsel is desired, as follows:
For his parents, guardian, or custodian when they are financially unable
to employ counsel to represent themselves and the issues are complex or
have serious consequences.
There can be no doubt that proceedings
for the termination of parental rights present issues of "serious
Furthermore, V.F. is an "Indian"
within the meaning of the Indian Child Welfare Act of 1978, 25 U.S.C.
§ 1903(3) (1976). The Indian Child Welfare Act specifically
provides indigent Indian parents the right to counsel in proceedings brought
to terminate their parental rights: "In any case in which the
court determines indigency, the parent or Indian custodian shall have
the right to court-appointed counsel in any removal, placement, or termination
25 U.S.C. § 1912(b) (1976).
we believe it is apparent from our decision in Flores
v. Flores, 598 P.2d
893 (Alaska 1979), that the due process clause of the Alaska Constitution
guarantees the right to counsel in proceedings brought to terminate parental
[FN2] In *45
Flores, we held that
the due process clause of the Alaska Constitution guarantees an indigent
parent the right to court-appointed counsel in a private child custody
proceeding in which the opposing party was represented by counsel provided
by a public agency. We stated, "The interest at stake
... is one of the most basic of all civil liberties, the right to direct
the upbringing of one's child. This right has consistently
been recognized by the United States Supreme Court as being among the
'liberties' protected by the due process clause of the Federal Constitution."
at 895 (footnote and citations omitted). We quoted with approval
the following passage from Cleaver
v. Wilcox, 499 F.2d
940, 945 (9th Cir.1974): "[D]ue process requires the state
to appoint counsel whenever an indigent parent, unable to present his
or her case properly, faces a substantial possibility of the loss of custody
or of prolonged separation from a child." 598 P.2d at 895.
The rationale for our decision in Flores
is even more compelling in this case; a proceeding for the termination
of parental rights affects a parent's right to direct the upbringing of
his or her child even more than does a private child custody proceeding.
We accordingly hold that the due process clause of the Alaska
Constitution guarantees indigent parents the right to court-appointed
counsel in proceedings for the termination of parental rights.
Article I, section 7, of the Alaska Constitution provides in part as follows:
"No person shall be deprived of life, liberty, or property,
without due process of law."
The right to counsel guaranteed by the sixth amendment to the United States
Constitution, and made applicable to states by the fourteenth amendment,
is specifically limited to criminal prosecutions: "In all criminal
prosecutions, the accused shall enjoy the right ... to have the Assistance
of Counsel for his defence." U.S. Const. amend. VI. The
right to counsel guaranteed by article I, section 11, of the Alaska Constitution
is similarly limited: "The accused is entitled ... to have
the assistance of counsel for his defense."
right to counsel in certain civil proceedings arises from the due process
clause of either the United States or the Alaska Constitution. See,
e.g., Reynolds v. Kimmons,
569 P.2d 799 (Alaska 1977) (paternity suits); Otton
v. Zaborac, 525 P.2d
537 (Alaska 1974) (civil contempt proceedings).
The United States Supreme Court has recently held in Lassiter
v. Department of Social Services,
452 U.S. 18, 31-32, 101 S.Ct. 2153, 2161- 2162, 68 L.Ed.2d 640, 652 (1981),
that indigent parents do not have an automatic right to counsel under
the United States Constitution in proceedings brought to terminate their
parental rights. Our decision, however, is in accordance with
the growing number of jurisdictions which have held that the right to
counsel in termination proceedings exists under the state constitution.
Annot., 80 A.L.R.3d 1141 (1977) ("Right of Indigent Parent to Appointed
Counsel in Proceeding for Involuntary Termination of Parental Rights")
(enumerating 15 states that have adopted this rule).
In accordance with these authorities,
Daniel Saluri was appointed as V.F.'s counsel in January of 1981. He
represented V.F. throughout the proceedings concerning her children, including
the proceeding for the termination of her parental rights.
issue contested by the parties is whether there is a right to the effective
assistance of counsel
in proceedings brought for the termination of parental rights. It
might be that this right is impliedly conferred by Children's Rule 15
and 25 U.S.C. § 1912(b), but none of the parties has made this
argument. It is clear, however, that whenever the right to
counsel is constitutionally guaranteed in a particular proceeding, the
effective assistance of counsel is also constitutionally required. E.g.,
McMann v. Richardson,
397 U.S. 759, 771 & n. 14, 90 S.Ct. 1441, 1449 & n. 14, 25 L.Ed.2d
763, 773 & n. 14 (1970); Reece
v. Georgia, 350 U.S.
85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77, 83 (1955); Risher
v. State, 523 P.2d
421, 425 (Alaska 1974); Crews
v. State, 358 So.2d
451, 455 (Ala.Civ.App.1978). We therefore agree with V.F. that she had
a constitutional right to the effective assistance of counsel in the proceeding
brought to terminate her parental rights.
Accordingly, we need not determine whether all rules and statutes conferring
the right to counsel also impliedly confer the right to the effective
assistance of counsel. It is conceivable that the two rights
are not co-extensive.
IN THIS CASE
A review of the facts of this case, however, indicates that V.F. was not
deprived of the effective assistance of counsel. In *46
Risher v. State, we
announced the following standard by which to determine whether a party
has been denied effective assistance of counsel:
reversal will result, there must first be a finding that counsel's conduct
either generally throughout the trial or in one or more specific instances
did not conform to the standard of competence which we have enunciated.
Secondly, there must be a showing that the lack of competency
contributed to the conviction. If the first burden has been
met, all that is required additionally is to create a reasonable doubt
that the incompetence contributed to the outcome.
523 P.2d at 425 (footnote omitted).
We stated the following standard of competency:
may display a wide spectrum of ability and still have their performance
fall within the range of competence displayed by one of ordinary training
and skill in the [particular area of] law. It is only when
the ability is below the nadir of that range that we would hold it to
constitute a deprivation of effective assistance of counsel.... All
that is required of counsel is that his decisions, when viewed in the
framework of trial pressures, be within the range of reasonable actions
which might have been taken by an attorney skilled in the ... law, regardless
of the outcome of such decisions.
523 P.2d at 424. V.F.'s
argument that she did not receive the effective assistance of counsel
rests upon three basic contentions: (1) she was unaware until shortly
before the hearing that Saluri was her attorney, rather than guardian
ad litem for her children; (2) Saluri failed to argue that the proceeding
should have been governed by the Indian Child Welfare Act; and (3)
Saluri failed to call a particular witness who arguably could have established
that V.F. can now provide a good, stable environment for her children.
These contentions will be addressed in order.
that Counsel Had Been Appointed
V.F. contends that she did not
know that Saluri had been appointed as her attorney, and instead believed
that he had been appointed as guardian ad litem for the children. V.F.
had been in contact with another attorney, Mr. Griffin, to whom she had
paid a retainer. She contends that she believed Griffin was
going to represent her at the hearing. The evidence before
us, however, establishes that V.F. understood that Saluri was representing
her in these proceedings at a point in time sufficiently before the hearing
to provide V.F. with the effective assistance of counsel.
It is clear that Griffin indicated
to V.F. at least a month before the termination hearing that he would
not be able to represent her at the hearing and advised her to "get
another lawyer ... or to continue with the lawyer she had." Soon
after Saluri was appointed to represent V.F. in January 1981, V.F. was
informed of the appointment. She was also informed that separate
counsel had been appointed as guardian ad litem for the children.
January 1981, Saluri consulted with V.F. regarding a thirty-day extension
of the temporary custody order. When V.F. entered into the
with the Department of Health and Social Services, it was announced in
court that Saluri was her attorney. The stipulation, of which
V.F. was given a copy, bears Saluri's signature as V.F.'s attorney and
recites in its opening paragraph that Saluri is her attorney. V.F.
informed Griffin that Saluri was her attorney. Finally, she
met with Saluri in June 1982 to prepare for the hearing, she participated
with him in the presentation of her case, and she brought in witnesses
for Saluri to examine on her behalf. On the basis of these
facts, we conclude that V.F. knew sufficiently prior to the time of the
hearing that Saluri was her attorney.
It is apparent from the record that V.F. wished to retain other counsel.
The right to the effective assistance of counsel does not
extend, however, to the right to reject appointed counsel and have new
counsel appointed in the absence of any showing of cause for such change.
Analogous to the holding of the United States Supreme Court in Morris
v. Slappy, 461 U.S.
1, ----, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621 (1983), we hold that
the due process clause of the Alaska Constitution does not guarantee a
"meaningful relationship" between client and his appointed counsel.
B. Failure to Argue
Applicability of Act
V.F. next contends that she was
denied the effective assistance of counsel because her attorney did not
argue that the Indian Child Welfare Act was applicable to the proceedings
and did not appear to be aware of the implications of the Act. We
agree with the guardian ad litem of the children, that this failing, assuming
it to be true, could not have contributed to the outcome of the hearing.
It is therefore not a cause for reversal of the judgment, in
accordance with the standard we enunciated in Risher
v. State, 523 P.2d at
It is unclear whether the Act is applicable to three
of the minor children, because they possess only one-eighth Indian
blood; the fourth child is one-quarter Native. Assuming, however, that
the Act were held to be applicable, it differs from
state law on termination proceedings, see
AS 47.10.080(c)(3), in only three relevant respects: (1) the Indian
child's tribe has a right to intervene in the action
(25 U.S.C. § 1911(c))
and a right to receive notice of the action (25
U.S.C. § 1912(a));
(2) proof must be presented of remedial services that have
been offered and not been successful (25 U.S.C. § 1912(d));
and (3) a determination "supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses" must be made
that continued custody of the child by the parent is
likely to result in "serious emotional or physical damage to
the child" (25 U.S.C. § 1912(f)).
All of these requirements were met in this case.
First, notice was sent to and duly received by the
Bureau of Indian Affairs, the appropriate Native association, and the
appropriate Indian Tribe. Second, the court was presented with extensive
evidence of remedial services that were offered and were not
successful. Finally, the superior court applied the "beyond a reasonable
doubt" standard, which was supported by the testimony of qualified
expert witnesses. One of the witnesses relied upon by the
state had been the director of the social services program
at the Fairbanks Native Association for two years; three other
witnesses either were or had been working for the same
association. Thus, four of the fourteen witnesses relied upon had
extensive experience with Native families. We accordingly hold that V.F.
was not denied the effective assistance of counsel because of
the alleged failure of her attorney to argue that the
Indian Child Welfare Act should have been applied to the
to Call a Witness
V.F.'s last argument is that her
counsel should have called her boyfriend, J.C., as a witness because his
testimony arguably would have established that she is now able to provide
a good, stable environment for her children. Evidence regarding
J.C. was presented to the court; V.F. testified as to her relationship
with him and their joint preparations to care for the children. V.F.'s
attorney indicated at the hearing that he had attempted to secure J.C.'s
presence, but was unable to do so. It would appear that either
did not inform J.C. of the importance she placed upon his appearance at
the hearing, or J.C. nonetheless chose not to appear. It is
a strategic decision whether or not to subpoena a reluctant witness and
we cannot say that Saluri's decision fell outside of the "range of
reasonable actions which might have been taken by an attorney skilled
in the ... law." Risher
v. State, 523 P.2d
at 424. See
also Coleman v. State,
621 P.2d 869, 879-80 (Alaska 1980); Gaona
v. State, 630 P.2d
534, 538 (Alaska App.1981). We thus conclude that the failure
to call J.C. as a witness at the hearing did not deny V.F. the effective
assistance of counsel.
We hold that the due process clause of the Alaska
Constitution guarantees indigent *48
parents a right to the effective assistance of counsel in
proceedings brought to terminate their parental rights. We conclude, however,
that V.F. was not deprived of this right and we
accordingly affirm the judgment of the superior court terminating her
CONNOR, J., not participating.
666 P.2d 42