5.1 RESPONDENT'S RIGHT TO COUNSEL
The interest of natural parents in the care and custody of their children is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982). A parent’s right to custody is constitutionally protected. In the Matter of the Termination of Parental Rights of Ronald A., 110 N.M. 454, 455 (1990).

The Children’s Code requires that the court appoint counsel for the parent or parents “at the inception of the proceeding,” which means as soon as the petition alleging abuse or neglect is filed. Appointed counsel serves until the custody hearing, at which time the court makes an indigency determination and appoints counsel for parents in financial need. The Code also provides for appointment of counsel if, in the court’s discretion, appointment of counsel is required in the interest of justice. §32A-4-10(B).

5.2 EFFECTIVE ASSISTANCE OF COUNSEL

5.2.1 RIGHT TO EFFECTIVE ASSISTANCE
As a matter of due process, parents have a right to effective assistance of counsel in abuse and neglect cases. State ex rel. CYFD v. Maria C., 2004-NMCA-083, ¶48, 136 N.M. 53; State ex rel. CYFD v. Tammy S., 1999-NMCA-009, ¶20, 126 N.M. 664 (decided in 1998). This includes the right to effective assistance when counsel is appointed by the court. State ex rel. HSD in the Matter of the Termination of Parental Rights of James W. H., 115 N.M. 256, 257 (Ct. App. 1993). A claim that trial counsel was ineffective may be raised on direct appeal. Id.

Maria C., a case in which the Court of Appeals expressed “grave concerns over the conduct of counsel in the proceedings below,” may shed some light on the responsibilities of respondents’ counsel and the meaning of effective assistance. 2004-NMCA-083, ¶48. In Maria C., both parents were incarcerated as federal prisoners throughout the proceedings. After the dispositional hearing, the court appointed new counsel for mother. The counsel did not speak to mother for almost a year after being appointed, failed a number of times to obtain a writ of habeas corpus to allow mother to attend the judicial review and permanency hearings, allowed father’s counsel to make representations on her behalf to the court, and in certain proceedings did not speak on mother’s behalf at all. Father’s counsel also failed to secure his client’s presence at the hearings.

The Court in Maria C. wrote: “It cannot be over emphasized that counsel must be a zealous advocate for his client, including making reasonable efforts to locate and facilitate their attendance at neglect and abuse proceedings, despite ‘opposition, obstruction, or personal inconvenience.’” Id. ¶48 (citations omitted). Parties are not required to “move heaven and earth” to notify the parent, but they must make reasonable efforts to do so.” Id. ¶52, citing State ex rel. CYFD v. Rosa R., 1999-NMCA-141, ¶17, 128 N.M. 304.

5.2.2 POSSIBLE CONFLICTS OF INTEREST
As a general matter, the court must appoint separate counsel for each respondent. A rule titled “Appointment of counsel” and approved by the Supreme Court in June of 2000 provides that “[i]n any proceeding or case that may result in the termination of parental rights, an attorney may not represent more than one parent.” Rule 10-331(B). This rule followed a 1998 decision in which the Court of Appeals wrote: “In instances where one attorney has been appointed to represent both parents, at least initially, counsel has a duty to avoid a conflict of interest and should be alert to that possibility.” State ex rel. CYFD v. Tammy S., 1999-NMCA-009, ¶21, 126 N.M. 664 (decided in 1998).

Tammy S. was an appeal based on ineffective assistance of counsel in a joint counsel situation. The court looked to see whether there was an actual conflict, not just a possibility of conflict. The test was whether counsel actively represented conflicting interests that adversely affected his or her performance. “Differently stated, a conflict of interest arises if some plausible defense might have been pursued were it not damaging to another’s interest.” Id. ¶¶21-22.

Rule 16-107 of the Rules of Professional Conduct provides that a lawyer shall not represent a client if the representation of that client will be directly or substantially adverse to another client, or if such representation may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests. Such apparently conflicted representation is allowed only if the lawyer reasonably believes the representation will not adversely affect the relationship with either client, and each client consents after consultation. The consultation must include an explanation of the implications of the common representation and the advantages and risks involved.

Because of the relatively few attorneys who are court-appointed in this field, an attorney may also find him or herself being appointed in a case in which the attorney previously represented another party. According to Rule 16-109 of the Rules of Professional Conduct: “A lawyer who has formerly represented a client in a matter shall not thereafter … represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.”

5.2.3 NON-ENGLISH SPEAKING CLIENTS
A respondent’s attorney should attempt to independently determine the ability of a client to understand and respond in English. A client may have some understanding of English, but important, subtle points can be lost without careful interpretation.

A respondent parent does not have an absolute right to translated documents or representation in his or her language in an abuse/neglect case, and there is no constitutional right requiring the assistance of a court-appointed interpreter to supplement the right to counsel. State ex rel. CYFD v. William M., 2007-NMCA-055, ¶¶40-43, 161 P.3d 262. However, due process does require that the parent receive notice and a meaningful opportunity to participate. It is also reasonably clear that courts will consider a claim of ineffective assistance of counsel based on inadequate communication between a non-English speaking client and his or her attorney, although such a claim was unsuccessful in Williams, where the attorney spoke Spanish, translated portions of the documents for the client, and made sure that certified interpreters assisted the client in proceedings. Id. ¶¶52-57.

A respondent’s attorney should ensure that an interpreter is present for court proceedings and meetings involving a client with a communication challenge. The courts will pay for interpreters for hearings and statutorily-required meetings, such as pre-permanency conferences, but the attorney should make sure that the interpreter is present. Meetings like as Team Decision Making or other CYFD staffing should have an interpreter provided by CYFD.

Although bilingual, a social worker, family member, secretary or other non-professional interpreter may or may not have the requisite vocabulary or independence to adequately convey the needed information. The respondent’s attorney should clarify with the social worker what steps have been taken to ensure that the parent is able to fully communicate with CYFD and other providers in the case. The William M. case suggests that the agency should make efforts to accommodate the parent’s language needs so that the parent can participate meaningfully in the treatment plan and the proceedings. Id. ¶¶50-51.

5.2.4 STANDARD OF REVIEW
In reviewing a claim of ineffective assistance of counsel, the Court of Appeals looks at the proceedings as a whole. William M., 2007-NMCA-055, ¶53, citing State ex rel. CYFD v. David F. Sr., 121 N.M. 341, 348 (Ct. App. 1995). “Litigants alleging ineffective assistance of counsel have the burden of establishing the claim and are required to show not only that trial counsel was ineffective, but that trial counsel’s inadequacies prejudiced them. Id.

5.2.5 COURT'S ROLE IN ASSURING EFFECTIVE ASSISTANCE OF COUNSEL
The duty to protect respondents’ due process rights and to assure effective assistance of counsel does not lie solely with respondents’ counsel. Rather, the court and CYFD also have obligations to parents in abuse or neglect cases. In Maria C., the Court of Appeals emphasized that, “in the final analysis, …it is the district court that is charged with protecting a parent’s due process rights.” The district court has “an affirmative duty to ensure the parent’s due process rights are protected from the initiation of abuse and neglect proceedings, not just at the end.” 2004-NMCA-083, ¶52.

Due process requires “timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker.” State ex rel. CYFD v. Lorena R., 1999-NMCA-035, ¶26, 126 N.M. 670, quoting In re L.V., 482 N.W.2d 250, 257 (Neb. 1992)). In particular, the district court must “inquire explicitly and on the record the reasons for a parent’s absence from [the review, permanency, and TPR] hearings. At a minimum, the district court must assess what reasonable efforts were made to arrange for the parents to be present and what corrective measure counsel intends to employ to facilitate their presence in the future.” Maria C., 2004-NMCA-083, ¶52. The appellate court criticized the district court’s delay in addressing counsel’s failure to secure the presence of their clients and reminded the district court that it could use its contempt power when the efforts of respondents’ counsel are not reasonable. Id.

Similarly, at the conclusion of a TPR hearing, the court should routinely question respondents about their satisfaction with counsel. Because an important party – the child – may be harmed if the case has to be reopened,

[w]e encourage the trial judge to inquire of a parent, who has been represented by appointed counsel, immediately after terminating parental rights whether that parent has any concerns about the representations provided by counsel…. [W]e conclude that the trial judge has an obligation to facilitate the resolution of the issue of whether that parent has received effective assistance of counsel by holding an evidentiary hearing if he or she expresses concerns that merit such a hearing.

James W.H., 115 N.M. at 258.

5.3 DUTIES OF RESPONDENT'S ATTORNEY
An attorney has a duty to zealously advocate his or her client’s express or implied wishes. State ex rel. CYFD v. Stella P., 1999-NMCA-100, ¶28, 127 N.M. 699, 706. In the case of a client with a mental illness or disability, an attorney must maintain a normal lawyer-client relationship so far as is reasonably possible, even in light of his client’s impaired ability. Rule 16-114; Stella P., ¶28.

In Tammy S. the Court of Appeals commented on the counseling role of the respondent’s attorney. There was evidence in the case that someone had explained the mother’s options to her but there was no evidence that she had been counseled on the ramifications of a continued relationship with the father.

[T]he counseling role is not properly left solely to a social worker. Rather, it is the practical reality in certain types of poverty law cases, particularly cases similar to those involved here. In such instances, an attorney’s advice regarding the law and how it impacts upon a client’s life choices may be at least as important as the attorney’s performance in the litigation.

Id., ¶24.

Attorneys have a unique role with the client. A different level of communication is available when there is a guarantee of confidentiality, which is not available to the respondent in other contexts in an abuse/neglect case. A client may take advice offered in such a confidential setting by his or her counsel more seriously.

The duties of a respondent’s attorney may include, for example:

• Ensuring that the client has an opportunity to confer privately with the attorney.
• Counseling the respondent on the law and how it impacts on his or her life choices.
• Making active efforts to locate the client and facilitate attendance at hearings.
• Arranging for meaningful participation by the client at the different hearings when the client is incarcerated.
• Arranging for the appearance of witnesses on behalf of the client at any hearing, including any necessary expert witness (see State ex re. CYFD v. Kathleen D.C., In the Matter of Damion M.C., 2007-NMSC-018, 141 N.M. 535).
• Presenting evidence or testimony describing or expressing the client’s wishes throughout the proceedings.
• Requiring CYFD to meet its statutory obligation to provide reports and treatment plans five days ahead of all hearings, in order to afford counsel an opportunity to review these reports with the client and to prepare for the hearing.
• Making timely objections to the admission of evidence, as appropriate (see, e.g. State ex rel. CYFD v. Brandy S., 2007-NMCA-135, ¶21).
• Demanding that CYFD prove by clear and convincing evidence that the client’s parental rights should be terminated and that it do so by presenting testimony and other evidence, even in the absence of the parent, if appropriate.
• Filing requested findings of fact or conclusions of law, even in cases where the client does not appear to contest the termination proceedings.
• Filing an appeal at the request of the respondent, either following an adjudication or after TPR, even if the attorney does not feel an appeal is justified. (This is required if the respondent so requests.)

In State ex rel. CYFD v. Mafin M., which involved a mother with severe mental illness and acute substance abuse, the Supreme Court described the various ways in which the respondent’s “competent attorney vigorously litigated her case.” See the discussion in Mafin M., 2003-NMSC-015, ¶25, 133 N.M. 827.

It has been observed that the responsibilities of a respondent’s attorney seem to be moving toward those of an attorney representing a person accused of a criminal act. The court needs to ascertain whether a purported decision on the part of the respondent was voluntarily, intelligently and knowingly made. Stella P., ¶¶22-24. In counseling the client, a respondent’s attorney should attempt to communicate effectively with the client about the possible ramifications of a given decision.

Children’s Court Rule 10-309 requires that the respondent disclose certain information to the other parties at least 15 days before an adjudicatory hearing or a termination of parental rights hearing. CYFD and the child’s guardian ad litem (and presumably the attorney for the older child) must make similar disclosures under Rule 10-308 and Rule 10-310 respectively. See Handbook §26.3.3.

5.4 PERFORMANCE STANDARDS
The New Mexico Court Improvement Project Task Force developed performance standards for court-appointed attorneys in child abuse and neglect cases and in the spring of 2003 recommended their adoption by the Supreme Court. Standards were adopted by the Supreme Court later that year, with minor amendments in 2006. The standards for respondents’ attorneys can be found here: PDF.

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