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					          OFFICE LEGAL MEMORANDUM

TO:        SUPERVISORY ATTORNEY
FROM: DAISIE COLLIER
DATE:      12/8/2012
RE:        WINDHOEK
           APPEAL ON PARENTAL RIGHTS TERMINATION HEARING DUE TO
           INEFFECTIVE COUNSEL

                                 STATEMENT OF ASSIGNMENT

    You have asked me to research the probability of our client prevailing on the appeal of the
District Court’s order that terminated her parental rights. The appeal is based on the ineffective
assistance of the court-appointed counsel in the termination of parental rights proceeding.
Pursuant to your request, this memo includes an analysis of the relevant state and federal law.


                                                ISSUE

        Under Minn. Stat. § 260C.163 subd. 3(a) (2009), was Ms. Windhoek’s right to effective
assistance of counsel violated when her court-appointed counsel advised her not to testify in her
termination of parental rights proceeding, since if she would have testified she would have
explained that the alleged criminal behavior was not criminal behavior at all?

                                          BRIEF ANSWER

        Maybe. Ms. Windhoek was a victim of having ineffective counsel. Minnesota Statute §
260C. 163 subd. 3(a) (2009) guards against ineffective assistance of counsel in connection with a
juvenile proceeding. The state courts have held in order to prove ineffective assistance of
counsel, the defendant must show that the result of the proceeding would have been different, if
it wasn’t for the counsel’s unprofessional errors. In our case, Ms. Windhoek had ineffective
assistance of counsel when she was advised not to testify, causing her not to be able to explain
the alleged criminal activity that resulted in the loss of parental rights.
                                                FACTS

        Cynthia Windhoek (client) has two young children. Her children live in foster homes due
to the loss of her parental rights. These rights were terminated in a parental rights proceeding in
Minnesota District Court. Her attorney, Thomas Dolittle, advised her not to testify in the
termination of parental rights proceeding because he did not want her to incriminate herself
concerning the alleged criminal activity; she took her attorney’s advice. Evidence admitted in the
hearing indicated Ms. Windhoek engaged in criminal behavior in the presence of her children.
The alleged behavior included acts of prostitution and abuse of prescription medication.

         It appears Mr. Dolittle misjudged the risk of criminal conviction in Ms. Windhoek’s
situation. Some evidence supports Ms. Windhoek’s explanation that her sexual conduct was not
criminal and the children may not have seen it. The alleged abuse of prescription medication may
have been negligent, not intentional.

                                           ANALYSIS

        The rule of law that governs the right to effective assistance of counsel is Minnesota
Statute § 260C.136 subd. 3(a) (2009). This statute states, “The child, parent, guardian or
custodian has the right to effective assistance of counsel in connection with a proceeding in
juvenile court.” If the person is unable to hire counsel, the statute states, “[t]he court shall
appoint counsel to represent…the parents….” The statute does not define what constitutes an
effective assistance of counsel; therefore, it is necessary to consult case law.

        The case that establishes the standard for a successful claim of ineffective assistance of
counsel is In re L.B., Jr., 404 N.W.2d 341 (Minn. Ct. App. 1987). In that case, a juvenile
appealed an adjudication of delinquency and his subsequent disposition. The juvenile claimed his
court-appointed counsel was ineffective due to lack of preparation. The court stated, “In order to
prevail on a claim of ineffective assistance of counsel L.B. [appellant] must show that trial
counsel was not reasonably effective and that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at
345, quoting Stickland v. Wash., 466 U.S. 668, 694 (1984). In our case, ineffective assistance of
counsel occurred when Ms. Windhoek was advised not to testify. Her counsel’s advice was not
reasonably effective because her explanation would not have brought criminal charges against
her and it could have created a different outcome for the hearing, because it would have given an
explanation to the alleged criminal activity.

        An unpublished parental termination of rights opinion that uses In re L.B., Jr. to establish
the standard for a successful claim of ineffective assistance of counsel during a juvenile
procedure is In re Children of Triemert, Fox, and Olson, No. C5-02-1976, 2003 WL 21386279
(Minn. Ct. App. June 17, 2003). In that case, L.B. (father) appealed the District Court’s decision,


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arguing that he was denied effective assistance of counsel when his counsel failed to have him
testify to rebut allegations of abuse towards his children. The court stated, “To succeed on a
claim of ineffective assistance of counsel, a party must demonstrate that ‘there is a reasonable
probability that, but for the counsel’s unprofessional errors, the results of the proceeding would
have been different.’” In re L.B., Jr., 404 N.W.2d at 345 quoting Strickland, 466 U.S. at 694.
The court determined the appellant failed to show that there was a reasonable probability the
outcome would had been different, due to the caseworker testifying to what appellant claimed he
would have testified to.

        In our case, Ms. Windhoek did not testify due to the advice of her counsel. If she would
have testified, she would have been able to explain her alleged criminal behavior. This
explanation the court was not aware of during the hearing and holds a reasonable probability that
if heard the outcome would have been different.

        There is no Minnesota or federal case law that contradicts In re L.B., Jr. A possible
counterargument is that Ms. Windhoek’s testimony would not have created a different outcome
during the hearing. This is not a strong argument due to some evidence supporting Ms.
Windhoek’s explanation of her sexual conduct. Another possible counter argument is that the
court was aware of Ms. Windhoek’s explanation, but there is nothing stating the facts to support
this.

                                            CONCLUSION

         Minnesota Statute § 260C.136 subd. 3(a) (2009) establishes the guidelines for an
ineffective assistance of counsel claim. In the case In re L.B., Jr., the court held the appellant
must show counsel was ineffective and that if it wasn’t for the counsel’s errors the results of the
hearing would probably be different. In our case, the client was advised not to testify by her
counsel. It was critical for her to testify to rebut the evidence against her. Her attorney’s advice
not to testify constitutes ineffective assistance of counsel. This prevented her from explaining the
accused behavior, which resulted in her losing her parental rights. If the reasoning in In re L.B.,
Jr. is followed, then our client was the victim of ineffective assistance of counsel; therefore, this
case requires a new hearing.

                                       RECOMMENDATIONS

        Additional research is needed to determine whether the court was aware of Ms.
Windhoek’s explanation of the alleged criminal behavior. If the court was aware, she will most
likely not prevail because the outcome will probably not be different.




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