Unfortunately, in matters of family law, there are circumstances in which a parent’s rights to their children are under investigation, and parental rights can be terminated. The Division of Child Protection and Permanency (DCP&P) is the agency charged with ensuring the protection of children, and are typically the party requesting involuntary termination of a parental rights. Recently, they were involved in an appellate case, DCP&P v. PD and AW, which covered a breadth of issues, including international treaties and constitutional due process.
In 2006, AW, the mother, gave birth to a child called SD. Several days later, DCP&P got word that there were adults abusing alcohol and drugs in the same apartment the children were living. SD tested positive for cocaine. As a result, SD was removed from AW’s custody on an emergency basis, and the child was put in a resource home. The DCP&P then filed a complaint with the court requesting care, custody and supervision of SD. The court approved their request, and AW agreed that she was responsible for neglect of the child. SD was then placed in the care of KA and RA, maternal relatives. PD was proven to be SD’s father, after a paternity test. He was offered supervised visitation, which eventually had to be held at the offices of the DCP&P given the fractious relationship between the resource parents and the biological parents. Eventually, SD was returned to AW’s care, with the DCP&P remaining involved. The court entered an order preventing PD from having any access to the child in March of 2007 until he had participated in various evaluations and programs to get access to SW reinstated. He did participate, until he was charged with a probation violation, and stopped attending the programs. In 2008, the court determined that AW and PD were to share legal custody of the child, with AW having physical custody. PD received charges for aggravated assault at some point, and was sentenced to three years in prison. In December 2008, PD was deported back to Cape Verde, Africa.
In 2012, DCP&P received another report of violence between AW and a man called JG. AW was charged with neglect and SD was placed in the care of the DCP&P, at which point PD was notified. SD was eventually placed once again with KA and RA, and PD was notified of the child’s placement. DCP&P considered placing the child with PD, but there was difficulty in determining whether his home would be suitable, given his international location. An international home study was carried out in November 2013, and the court found it inadequate, particularly in light of concerns regarding PD’s criminal history. There was no recommendation for SD to be placed with PD. In January 2014, the court approved of the DCP&P’s plan to terminate PD and AW’s parental rights. In December 2014, AW surrendered her parental rights to KA and RA. The court held trial on the DCP&P’s complaint concerning PD’s parental rights in June 2015. PD was still in Africa, so did not participate in trial on day one, but participated by phone and gave sworn testimony on day 2. He opposed his parental rights being terminated, and asked the court for SD to live with him.
At the conclusion of trial, the judge found that the DCP&P had established all the factors supporting PD’s parental rights to be terminated. Among his findings, the judge said PD had harmed SD because he was absent for most of her life and failed to take any steps to act as a parent for the child. He failed to maintain contact, and did not even know the basic facts about her, like her grade in school. He was basically a stranger to the child, and the judge refused to remove her from her home country to go live in a place she had never been with someone she barely knew. Relying on the expert testimony of the psychologist, the judge also found that removing SD from her current situation would cause her significant emotional and psychological harm.
PD appealed, arguing the judgment should be reversed because the court had failed to comply with the Vienna Convention on Consular Relations (VCCR), he was denied due process and the right to effective assistance of counsel, and the DCP&P failed to establish that his parental rights should be terminated. The appellate court rejected all of PD’s arguments, affirming the judgment.
The treaty was aimed at developing friendly relations among nations. It addressed the functions of a consular post between nations sending and nations receiving. PD asserts that Article 37 of the VCCR requires a receiving State to send information concerning guardianships of an international of another State. PD relies on the argument that the VCCR imposed an obligation on the DCP&P to have notified the Cape Verde consulate about the court proceedings in 2012, primarily because SD was both a U.S. and Cape Verde-ian citizen. The purpose of this provision is to give each consulate the chance to consider whether it should provide assistance to its citizen involved in proceedings. The US Department of State has issued guidance which stated that these notice requirements are not applicable if the child in question is an American citizen, even if they hold dual citizenship. Therefore, the VCCR did not require that the DCP&P give notice to the consulate in 2012. Furthermore, PD was not able to show that he was prejudiced by such a failure to notify. SD was also represented by a guardian ad litem, and therefore, had her own access to a legal representative, even without consular notice.
PD further asserts he had inadequate due process based on the lack of the consular’s notice. However, DCP&P did notify PD of the proceedings and of SD’s location and placements. The court also noted that PD’s wife was an American citizen, employed with the US State Department in Cape Verde, and his father worked for the Cape Verde government. If he wanted assistance from the consulate, it was available to him. PD could also have gotten local counsel to represent him in the underlying proceedings – but he failed to do so until late 2013. The court noted that he was represented in December 2014 of the permanency plan, and was therefore given both notice and the opportunity to be heard at multiple proceedings. His due process was not violated under the proceedings of the case.
Effective Assistance of Counsel
PD claims he was denied effective assistance of counsel in the underlying guardianship proceedings, arguing that judgment should be reverse, or at least remanded for the opportunity to have an evidentiary hearing. PD needed to establish the two-prong test in Strickland v. Washington in order to succeed on this argument. First, PD had to show his counsel’s performance “was deficient because it fell below an objective standard of reasonableness.” Second, he needed to show that he “was prejudiced because of the reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” PD claimed his counsel lacked the requisite knowledge to proceed under the VCCR; however, the court had already determined that he was not prejudiced by any failure within the VCCR, and so this prong failed. He argued his attorney should have sought dismissal of the complaint earlier in the matter, but again failed to show how he was prejudiced by any failure to do this. Even if his attorney had requested a dismissal of the complaint, the DCP&P would simply have filed a new complaint seeking termination of PD’s rights. He could not show how the result would have been any different. PD asserted his attorney should have objected on multiple grounds, such as the examination by an expert, admission of expert testimony, and evidence regarding his prior criminal record. PD failed to show how he was prejudiced by such error, nor that there would have been a different result had his counselor behaved any differently.
Lack of Evidence
Finally, PD argued that the findings of the judge were not supported by the record. Factual findings are usually not disturbed on appeal if they are supported by credible evidence in the record. The court found that the evidence was pretty clear that PD made no effort to maintain a relationship with SD after he was deported, lacked basic knowledge about her, like what grade she was in, and therefore, the judge’s finding that SD’s health, safety or development had been harmed by PD’s relationship, or lack thereof, with her. Expert testimony from a child psychologist established the risk of harm to SD as well. The evidence supported the jurisprudential test for terminating parental rights, so the appellate court found there was sufficient credible evidence to support the finding that DCP&P made reasonable efforts to accomplish reunification. Ultimately, the court agreed that PD had responded inadequately, and therefore, termination of his parental rights was justified.
If you have any questions concerning a termination of a parental rights case, call the Law Office of Peter Van Aulen for a free comprehensive in office consultation at (201)845-7400..