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