When I watch this argument I see a traumatized court. Death penalty litigation, where the Strickland standard developed, is hard on everyone involved. And while termination of parental rights is often called the “death penalty of family law,” it has certainly never been given anywhere near the same level of due process or scrutiny. Consider for a moment that a final judgment of termination can be entered against you for failure to appear at your arraignment and then again for failure to appear at your trial. The death penalty cannot be entered by default. Imagine a person being sentenced to death because they could not find a ride to court on one day out of years of proceedings. That is obviously ridiculous. It’s equally ridiculous in termination cases.
But that is an aside. The questions I heard from the bench were about implementation and how to avoid all of the problems that Strickland seems to invite. Justice Pariente worried it will encourage nitpicking, but the ill seems to be the risk of interminable litigation and not the scrutiny itself. Everyone therefore appeared to agree that the time frames must be limited. Beyond that, it’s hard to predict what rules would avoid the problems we have today without creating new problems tomorrow. Justice Lewis, for example, raised the potential problem of the State and parent both having to waive privilege in the middle of pending litigation. This seems important: it’s hard to say how a parent would raise effective assistance if the parent had no access to whatever skeletons the state was hiding.
The procedural issues are actually quite puzzling. That doesn’t mean we should have no procedures at all. It’s clear that we need guidance on what the floor is for effective representation, but we also need funding and support to raise everyone so far above the floor that we rarely have to worry about hitting it. That’s why our clinic filed an amicus brief with Florida’s Children First, arguing that improving the quality of parents’ lawyers early in cases can help us get kids home sooner and safer, and be more sure that when children aren’t reunified it was because of safety and not because the system was too complicated or difficult for their parents to navigate.
One legal note of interest: several justices identified the ex post review that Strickland requires as an evil of the standard. Under Strickland, the court must, long after the trial has conclude, go back and review the record to determine if everyone behaved correctly. What was interesting to me was that the Least Restrictive Means analysis that has evolved in child welfare law contains the exact same flaw. Under LRM, the Court must go back and determine if DCF made a good faith effort to rehabilitate the parent, sometimes years after the case started. Because we do ex post review already, adding an effectiveness hearing after the trial would only serve to recognize the defense attorney’s role in ensuring that good faith effort by the state. Of course when 95% of parents rely on appointed counsel and state-funded services, budget cuts are a far more persistent threat to due process than sleepy attorneys.