Division I: Need a Lawyer to Claim Last Minute Continuance for New Lawyer in Termination Proceeding
Remember last week, when we talked about no continuance for a a guardian, unless you actually have a guardian lined up? Well, as it turns out the same goes when you claim a continuance to hire an attorney. You need to actually show that you could have gotten an attorney or had one lined up.
In this case, the mother was in the process of a termination hearing (being stripped of your parental rights). She was given counsel, but wanted a continuance to hire private counsel. As these things often go, the mom was provided the opportunity for services to help with parenting and drinking. Turns out that getting blackout drunk and failing to come home when your kids are with a sitter isn’t exactly good parenting.
[I TOTALLY WOULD HAVE INSERTED A HILARIOUS PICTURE HERE…HONEST!]
Anyhow, like I said, she didn’t participate in any services: no court ordered outpatient alcohol treatment; no service providers; no proof of parenting classes; no mental health treatment. You get the picture. Heck, she wasn’t consistent with making visitation meeting times (and this one, I can’t really judge without more information, as some jobs, especially if you don’t have your own transportation, would make this difficult).
The court did note that her inability to parent (time management, organization, meeting obligations, remembering instructions) could have stemmed from her own prior abuse.
Garbage in, garbage out. Or, more accurately, spiral of abuse and neglect.
Here, the appointed counsel was asked to withdraw by the mom, and given the name of a potential therapist witness way late in the game. Mom said the therapist couldn’t testify for at least two weeks. Counsel made the request to withdraw and continue the matter to obtain new counsel. The court rejected given that mom’s assertion she had contacted one attorney (not hired) and planned on contacting two more wasn’t kosher, especially given this thing was 27 months in and she had known of the trial date for four months. The court had her move forward with her appointed counsel and was willing to make accommodations to have the therapist testify:
The mother has indicated a desire to hire alternative counsel, but this comes on essentially the morning of trial, and there are no specific names offered or even an indication that she has met with these individuals. So that is rather speculative in nature.
Perhaps the biggest concern is the prospect of this potential witness for the mother, the therapist. Although, one notes that according to the mother this therapist has only been involved in the case for the last couple months it sounds like. So, there may be limitations in terms of her testimony. But the Court would be inclined nonetheless to make accommodations to try to ensure . . . at least the possibility of her being heard from. Accordingly, the Court would be inclined, for example, to allow telephonic testimony regarding that therapist. And if that proves simply impossible, to at least consider possible alternatives. Although, again, this is a case that has been pending trial for some time. Again, this is a rather new development it sounds like in terms of [the] possibility of her being a potential witness. And, as noted, her testimony I gather would be rather limited in scope.
The Court of Appeals took that nugget, and compared the right to counsel in these matters with the right of the Court to manage the calendar:
But as recognized in Hampton, a court also retains the right to control its calendar, and the ability of the parent to secure substitute counsel is critical to the exercise of the right to choose retained or volunteer counsel.20 Here, there was no motion to substitute counsel; Salazar had not reached any agreement with any attorney, retained or volunteer, to represent her in the termination trial. Salazar filed only a motion for a continuance to delay the trial and allow her to interview two attorneys she had not yet met.
The trial court asked careful questions and determined: Salazar wanted to retain substitute counsel but had not yet done so; she interviewed one attorney but did not want that attorney to represent her; she planned to interview two other attorneys within the next week but could not give the trial court the names of those attorneys as she did not have their names with her; the dependency had been pending for 27 months; the termination trial had been scheduled. Salazar knew of the trial date for four months. The Department, the GAL, and counsel for S.M. all opposed a continuance on the ground that the children should not be forced to wait longer for the court to determine whether a termination should be granted.