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In re L.H.

Supreme Court of Vermont

January 12, 2018

In re L.H., L.H. and L.H., Juveniles

         On Appeal from Superior Court, Windham Unit, Family Division Michael R. Kainen, J.

          Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Appellant Father.

          Adele V. Pastor, Barnard, for Appellant Mother. Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.

          Michael Rose, St. Albans, for Appellees Juveniles.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Teachout, Supr. J., Specially Assigned

          ROBINSON, J.

         ¶ 1. This case requires us to consider whether a court may terminate parents' parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter. Mother and father separately appeal the court's order terminating their parental rights with respect to three of their daughters. We do not address many of their challenges to the trial court's findings and conclusions because we conclude that a conflict of interest by the State's counsel compromised the proceedings. Accordingly, we reverse and remand for a new hearing.

         ¶ 2. The proceedings below involved four of parents' children, La.H. (the oldest child), born in June 2003, Ly.H., born in September 2007, Le.H., born in October 2009, and Li.H., born in September 2011.[1] Two events were the immediate triggers for this case. In August 2014, in the presence of two of the children, father allegedly punched mother in the left eye, pulled her hair, and kicked her with boots on. In September 2014, DCF received a report that the three younger children were playing near a busy road unclothed and without adult supervision. DCF social workers went to the home and found food, dirty laundry, and trash all over the floor. The State filed a petition alleging the children were in need of care or supervision (CHINS). In October 2014, parents stipulated that the children were CHINS. The initial disposition order placed the children in mother's conditional custody. The case plan's concurrent goals were reunification with mother or adoption.

         ¶ 3. In April 2015, citing significant conflict and communications issues between the oldest child and mother, the court granted DCF custody of the oldest child; she was eventually placed with the foster family in New Hampshire with whom she had lived while in state custody in New Hampshire several years earlier. The three younger children remained with mother.

         ¶ 4. Due to continued concerns about the children's cleanliness and regression at school, the condition of the home, and mother's inability to manage the finances, the court modified the case plan in May 2015 to add reunification with father as an additional case plan goal.

         ¶ 5. In December 2015, the court granted the State's motion to place the younger three children in DCF custody based on chronic concerns that the children were not properly clothed for the weather, the home was unclean and smelling of urine, the children were not properly fed, and mother was not properly supervising the children. In June 2016, the court terminated visits between parents and the three younger children, finding by clear and convincing evidence that continued contact would be detrimental to the children.

         ¶ 6. The State moved to terminate parental rights to all four children. Following a multi- day hearing, the court concluded that there was a change of circumstances because parents' progress had stagnated. After conducting a best-interests analysis, the court terminated parental rights as to the younger children, and denied the State's termination of parental rights (TPR) petition as to the oldest.[2] Parents appealed.[3]

         ¶ 7. The critical issue in this appeal is whether the trial court's decision is fatally compromised by a conflict of interest of the attorney representing the State. The facts related to this issue are as follows. Through March 2016, Attorney represented all four children. In April 2016, the juveniles were assigned a new lawyer. At a hearing on April 13, 2016, Attorney appeared in the case for the State. She presented the court with a letter signed by the juvenile's guardian ad litem consenting to her representation of the State in the case. Mother's attorney cited Vermont Rule of Professional Conduct 1.9 and raised concerns about Attorney's prior representation of the children.[4] The following exchange took place:

[Mother's attorney]: . . . I know [Attorney] has addressed this for the Court, but on behalf of mother we do have concerns under Rule 1.9 about [Attorney's] prior representation of the juveniles, and her ability to go forward now representing the State.
THE COURT: Which Rule 1.9?
[Mother's attorney]: The Rules of Professional Conduct.
THE COURT: And that rule is what, I don't have it in front of me?
[Mother's attorney]: The duties for former clients, just that we believe it could represent a conflict with her to go forward today.
THE COURT: How so?
[Mother's attorney]: Just in that she has previously represented the children, and now she's taking a role that could potentially be adverse for the children in some manner. And we believe that-we just want to put it on the record that we have concerns about the potential for a conflict. Not that we have any ...

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