See, e.g., In re K.F., 2013 VT 39, ¶ 22, 194 Vt. 64, 72 A.3d 908 (affirming termination of father's parental rights because even assuming that parents have right to effective assistance in termination cases, father's allegations failed to meet standard set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984)); In re M.B., 162 Vt. 229, 237, 647 A.2d 1001, 1005 (1994) (holding father failed to demonstrate prejudice from trial counsel's alleged incompetence sufficient to create reasonable probability that result of termination proceedings would have differed). Despite this, father did not raise his ineffective-assistance claim on direct appeal.
Before considering the parties' arguments, we note that on several occasions in the past this Court has declined to reach the question of whether parties may claim ineffective-assistance- of-counsel in child-welfare proceedings, concluding in each case that the appellants had failed to satisfy the standard applicable in criminal cases. See In re K.F., 2013 VT 39, ¶¶ 21-22, 194 Vt. 64 (citing past cases in which this Court declined "to address the question of whether an ineffective-assistance-of-counsel claim may be raised to challenge a TPR decision," and declining to decide "whether a parent in a TPR case has a statutory or constitutional right to challenge the effectiveness of counsel because . . . even if such a challenge can be brought, and even accepting for the sake of argument father's allegations about counsel's shortcomings, father in this case cannot meet the Strickland standard" applied in criminal cases). The Advisory Committee on Rules for Family Proceedings is currently considering "the question of what procedure would apply if we concluded that parents in TPR cases had a legal right to effective counsel."
On several occasions in the past this Court has declined to reach the question of whether parties may claim ineffective assistance of counsel in child-welfare cases. See In re K.F., 2013 VT 39, ¶¶ 21-22, 194 Vt. 64 (citing past cases in which this Court has declined to address whether ineffective-assistance-of-counsel claims may be raised in termination proceedings because appellants in those cases failed to show that they could have met the test in criminal cases for succeeding on such claims). Moreover, this Court has never decided whether an ineffective-assistance-of-counsel claim may be the basis for a Rule 60(b) challenge to a termination decision.
Following Provost's appeal to this Court, the District filed a motion asking this Court to accept as part of the record on appeal several emails exchanged between the District's and Provost's attorneys concerning the reporter's request. While acknowledging that this Court's review is ordinarily confined to the record in the trial court proceedings, see In re K.F., 2013 VT 39, ¶ 26, 194 Vt. 64, 72 A.3d 908, the District argues that this is one of those rare cases where we should accept the emails as part of the record on appeal even though they were not made part of the record below. According to the District, not doing so would put Provost in a better position than if he had properly preserved and adjudicated before the civil division his jurisdictional challenge to the District's declaratory judgment action.
See, e.g., In re K.F., 2013 VT 39, ¶ 29, 194 Vt. 64, 72 A.3d 908 (explaining that in deciding whether to terminate father's rights, court was not required to make findings about potential placements for child; only issues before court at termination are whether there has been a substantial change in material circumstances and whether termination is in child's best interests, and court was not required to address possible alterative placements for child); In re T.T., 2005 VT 30, ¶ 7, 178 Vt. 496, 872 A.2d 334 (mem.) (recognizing that "an alternative placement is not a prerequisite to termination of parental rights"); In re S.B., 174 Vt. 427, 430, 800 A.2d 476, 481 (2002) (mem.
This Court has not yet addressed whether a TPR decision may be challenged based on denial of effective assistance of counsel. See In re K.F., 2013 VT 39, ¶ 21. In a criminal proceeding, to demonstrate ineffective assistance of counsel the defendant must demonstrate that counsel's performance fell below the prevailing standard of competence and that the incompetence prejudiced the outcome of the proceeding.
"Having concluded by clear and convincing evidence that termination of . . . parental rights was in [K.C.'s] best interests, the court was not required to address possible alternative placements for the child." In re K.F., 2013 VT 39, ¶ 29, 194 Vt. 64. Just as we explained in In re K.F., "[e]vidence about potential kinship placements within [father's] family would have been, accordingly, irrelevant to the court's decision." Id.
The court here properly focused on those issues, and as part of that analysis, the court considered the relationships of the children with mother and their extended family. See In re K.F., 2013 VT 39, ¶ 29, 194 Vt. 64 (explaining that in assessing whether to terminate parental rights "the trial court was not required to make specific findings on the potential parental fitness of [parent's] other family members").
Assuming that an ineffective-assistance claim may be raised, mother has failed to establish the necessary elements. See In re K.F., 2013 VT 39, ¶ 22, 194 Vt. 64 (declining to address whether ineffective-assistance claim may be raised in juvenile proceeding and evaluating ineffective-assistance claim under standard used in criminal context). An ineffective-assistance claim requires a parent to "show by a preponderance of the evidence that (1) counsel's conduct fell short of the prevailing standard of a reasonably competent attorney, and (2) this incompetence was sufficiently prejudicial to create a reasonable probability of a different result."
We have yet to decide whether an ineffective-assistance-of-counsel claim may be raised to challenge a decision terminating parental rights. In re K.F., 2013 VT 39, ¶ 21, 194 Vt. 64. The standard for evaluating such a claim in criminal cases