 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Richard B. v. State6/13/2003
No. 5703
I. INTRODUCTION
In a termination of parental rights case, the father whose rights were terminated charges that there was a conflict of interest because the children's mother was represented by a firm that had previously represented the father in a criminal matter that provided one of the bases for termination. The imprisoned father also challenges the superior court's decision denying his request to testify in person. We conclude that the superior court erred in allowing the conflicted firm to represent the mother despite its past relationship with the father, and we remand for a determination of the effect of this error on the father's case. On the issue of the father's request to be present at the trial, we find no error in the superior court's denial of the father's request for transport.
II. FACTS AND PROCEEDINGS
Richard and Leslie are the parents of three children, Cynthia, Violet, and Richard, Jr. In 1997 the Division of Family and Youth Services (DFYS or state) filed a petition alleging the children to be in need of aid. In 1998 the children were deemed to be children in need of aid pursuant to former AS 47.10.010(a)(1)(A) and committed to the custody of DFYS for a period of two years.
In 1999 Richard was charged with sexual assault of a minor (SAM) in the second degree for sexual contact with his daughter, Cynthia. That charge was later reduced to attempted SAM in the second degree, to which Richard pled no contest in 2000. Richard received a sentence of five years, with two years suspended. At the change of plea, Richard was represented by Brian Kay of the Bethel office of the Public Defender Agency.
In May 2000 the state petitioned for a termination of Richard and Leslie's parental rights. Richard was represented by the Public Defender Agency. Leslie was represented by the Office of Public Advocacy (OPA). In July 2000 the OPA contract was transferred to the Henderson & Kay Law Office, who then filed an entry of appearance as counsel for Leslie. Brian Kay was a member of that firm.
The facts concerning each issue are straightforward. With regard to the conflict issue, Kay appeared on behalf of Leslie at a calendar call in August 2000 and stated that he had previously handled Richard's criminal case and that his partner, David Henderson was also involved in "this." Kay acknowledged that there was a conflict and stated that he would check with Henderson and let the court know the status of any potential conflict within two weeks. At the September calendar call, at which Henderson appeared on Leslie's behalf, no mention was made of any conflict in Henderson & Kay's representation. At the pretrial conference in October, the court indicated that it believed the situation could be remedied by the implementation of an ethical wall, as Henderson had no knowledge of Richard's criminal matter and had not spoken with Kay about it. According to the court, the ethical wall would consist of a formal arrangement recognizing that Henderson and Kay would have no communication concerning the two cases, and that Henderson would receive no information from any firm file about Richard. The court noted that if any party wanted to address the issue before trial began a week later, the party should notify the court and the matter would be put on the calendar.
With regard to his request to participate in the trial in person, Richard moved on September 28, 2000 for an order of transport from the correctional facility in Seward to the one in Bethel for the duration of the termination trial, scheduled to begin on October 16. He asked to be transported no later than October 4, so he would have time to he
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Alaska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|