In Re Rgb

A. Whether The Intermediate Court Of Appeals ("ICA") "Borrowing" Of Criminal Matters Analogy To Apply To Family Court Claims Of Ineffective Counsel Is Authorized By Law And Meets Constitutional Standards?

B. Whether The ICA Upholding Of The Trial Court's Refusal To Release "Confidential" Records That Appellate's [sic] Counsel Could Not Examine But At The Same Time Requiring Counsel To "Identify Any Prejudice Stemming From This Limitation" Meets Fair Disclosure Standards?

[RGB's foster parents] want to adopt [RGB] and have been ready to proceed with the adoption process ever since biological mother's parental rights were terminated in March 2005. However, biological Mother's pending appeal to the court . . . has prevented the DHS and [RGB's foster parents] from proceeding with the adoption. Hence, [foster parents] and [RGB] and the entire family are disappointed. Per [foster mother], [RGB] continually wonders and asks "when will she be adopted".

3. Mother grew up on the mainland in difficult circumstances. She was hospitalized on at least four different occasions for psychiatric conditions. Mother abused drugs and substances. She was in a series of unstable, sometimes violent relationships with men.

4. Mother had another child who was removed from her care by the State of California. Over her objection, the parental rights of Mother to her older daughter were terminated, and the child was permanently placed with Mother's sister.

. . .

6. While living in the bay area of California, Mother again became pregnant.Page 5Fearful that California authorities would remove her second child, she moved to Hawai'i when eight months pregnant with [RGB].

. . .

8. Mother encountered many difficulties living in Hawai'i after the birth of [RGB]. She did not apply for public assistance because she was fearful that State authorities might remove [RGB]. She had very little money. At times she and [RGB] were homeless.

9. On March 30, 2001, [RGB] was taken into police protective custody after she was found in the care of [Mother's ex-boyfriend]. At the time that she was placed in police custody, she was dirty and did not have on a diaper or underclothing.

10. [Mother's ex-boyfriend] and Mother had been in a relationship for many years. [Mother's ex-boyfriend] had a history of substance abuse and a mental health diagnosis of chronic paranoid schizophrenia with acute exacerbation. He had been acquitted of two sexual assault offenses due to incapacity.

11. A temporary foster custody hearing was conducted. Mother applied for and received the services of court-appointed attorney, Cynthia Linet.

12. On April 6, 2001, the Family Court awarded the Department of Human Services ("DHS"), temporary foster custody of [RGB] on the basis that she was subject to imminent harm due to Mother's past history of mental health problems and her current relationship with [Mother's ex-boyfriend].

. . .

14. On June 15, 2001, . . . the Court returned [RGB] to [Mother's] care under family supervision.

15. On November 29, 2001, DHS again petitioned the Court for foster custody of [RGB]. Mother and [RGB] had been evicted from the homeless shelter and had moved to the Rossmond Hotel. Mother was having difficulty controlling [RGB] and following through with skills taught by the parenting program that she attended.

16. The Court . . . continued family supervision of Mother and [RGB].

17. Mother's attorney, Ms. Linet, moved to withdraw as counsel. Mother asked to be allowed to represent herself. The Court allowed Ms. Linet to withdraw as Mother's counsel and allowed Mother to appearprose.

18. On April 4, 2002, DHS again petitioned for foster custody of [RGB]. Mother and [RGB] had moved back to the homeless shelter because the Rossmond Hotel was closed for renovation. . . . Based on representations made, the Court awarded foster custody of [RGB] to DHS and scheduled a contested disposition hearing to determine whether [RGB] should remain in foster care.

19. The Court appointed Alexander W. Thoene, Jr.⁴to serve as counsel for Mother. The disposition hearing was conducted on April 12, 15, and May 14, 2002. Mother failed to appear for the fourth day of the disposition hearing on June 17, 2002.

20. The Court defaulted Mother for purposes of the disposition hearing and found that she suffered from a mental condition which distorted her perception of the people that she had been in contact with to the point that she considered all of them to be conspiring against her to deprive her of [RGB]. The Court concluded that this perception of Mother and her inability to control her emotions led her to have conflicts with people who had been trying to assist her. The Court found that Mother was a person of above-average intelligence and was able to pass parent education classes. Notwithstanding her cognitive abilities, the Court found that Mother's mental disorder prevented her from applying the lessons learned to adequately parent [RGB], and that consequently, [RGB] was often deprived of clean and appropriate clothing, did not bathe on a regular basis, and did not have adequate supervision. The Court determined thatPage 6this was not a simple matter of Mother having a different lifestyle, but more a matter of Mother being incapable of adapting to situations which were incompatible with her lifestyle and beliefs, and that this inability to adapt, was a by-product of her mental disorder, and endangered [RGB] and rendered Mother incapable of providing a safe home for [RGB]. The Court concluded that continuation of [RGB] in Mother's care would result in serious injury to [RGB], delaying physical, emotional, social, and or psychological development with long term negative consequences for [RGB].

. . .

22. On July 8, 2002, Mother filed a motion to terminate Alexander W. Thoene, Jr. as her counsel. She indicated that she would proceedpro se.On August 8, 2002, the Court granted Mother's request to proceedpro se, but required Mr. Thoene to serve as stand-by counsel for Mother to assist her in the presentation of her case.

. . .

24. At first, visits . . . between Mother and [RGB] went well. [RGB] appeared more loving towards Mother and did not seem to be resistant to visits. Mother interacted with [RGB] very appropriately,

. . .

25. On September 19, 2002, a . . . visit did not go well. Mother seemed easily frustrated. When [RGB] wanted to call her foster mother or preschool teacher on a play phone, Mother stopped participating in the play. Mother became emotional and made inappropriate statements to [RGB] such as, "I'm your mommy, they want to take you away and make you think someone else is your mommy, but I am your mommy." [RGB] had to go to the bathroom five times in the last hour of the visit.

. . .

27. In the summer and fall of 2002, [RGB] began to make statements about a "man in a brown car." [RGB] made statements that suggested that the man had been violent towards Mother. [RGB] also said that the man in the brown car put a thing in her mouth and she threw up. Service providers became concerned that [RGB] may have been sexually abused by a male before she was placed into foster care.

28. Mother's response to the concern about the possible sex abuse of [RGB] was to vehemently reject any possibility that the child had been sexually abused while in her care. Much later in the case, Mother disclosed that she had owned a brown car during the time that she and [RGB] were homeless. . . .

. . .

33. During the early part of 2003, Mother's visits with [RGB] continued. While most visits went well, more difficulties arose in February. Mother began to make inappropriate comments to [RGB] during supervised visits. Comments by Mother included statements such as, "They are brain washing you" and "Mommy is looking for a house and soon you can come home." . . .

34. The foster mother reported that [RGB] returned from visits with Mother very upset with concerns about where she was going to live and whether she would be moved. . . .

. . .

35. Between January and March 2003, [RGB] had displayed numerous anxious behaviors both in the home of the foster parents and in therapy. After visits with Mother were suspended, [RGB's] anxious behaviors abated.

. . .

37. On May 1, 2003, at Mother's request, stand-by counsel, Alexander W. Thoene, Jr. withdrew and G. Kay Iopa was appointed as replacement stand-by counsel for Mother.

38. Throughout this proceeding, Mother has had difficulties with her attorneys. At times, she has insisted on proceedingpro se.At other times, she has requested new counsel or postponements until she could gather enough funds to hire counsel of her choice. Mother has proven herself unable to organize and effectively present her own case. At the same time, she has often refused to allow her court-appointed counsel to proceed on her behalf. For thisPage 7reason, the Court appointed Mother standby counsel. Mother was allowed to present her own case and question witnesses to the extent that she was able to do so, but she was also allowed to rely on stand-by counsel to present her case when she was not able to proceed. Stand-by counsel was also available to assist Mother in the preparation of appropriate motions and pleadings.

. . .

42. On August 8, 2003, [RGB] had a visit with Mother. . . . This visit seemed to go well, but the foster mother reported that on the drive home from the visit, [RGB] asked about what happens to mommies that hurt their babies. The foster mother asked how the mommy hurt the baby and [RGB] responded that the mother took the baby to the man in the brown car and held her down and the man "hurt me." [RGB] told the foster mother that the man said that he was going to cut her with a knife and was going to put it in her "tuni" and cut her up. "Tuni" is a word that [RGB] uses for vagina. [RGB] related that she kicked the man in his leg and he got really mad and slapped her and she screamed loud. [RGB] also said that . . . Mother[] let the man put medicine in her mouth and that she threw up all over Mother's bed. Concerns about the statements of the child caused DHS again to suspend[] visits with Mother.

43. On August 28, 2003, visits between [RGB] and Mother again resumed. . . .

44. During this period, there were numerous conflicts between Mother and the supervising agency. . . .

. . .

54. At a review hearing on January 29, 2004, the DHS worker reported that Mother continued to make inappropriate statements to [RGB] about how she was going to return to Mother. The social worker indicated that [RGB's] old fears had returned. . . .

55. [RGB] and Mother continued to visit twice a week for one and a half hours per visit under the supervision of a DHS aide. While the visits seemed to go well, [RGB] showed troubling signs of distress in her play sessions with her therapist. Prior to visits with Mother, [RGB] would cry frantically and vomited on one occasion.

56. In February 2004, in the evenings, [RGB] began complaining of a fast heart beat and gasping for breath. Her pediatrician . . . diagnosed her with adjustment disorder noting that the stress reaction was likely caused by the visits that [RGB] had with Mother.

. . .

59. On March 12, 2004, [RGB] asked to leave a supervised visit early. Mother became very upset and began to accuse the supervisor of training [RGB] to make such statements. The visitation supervisor attempted to terminate the visit, but Mother continued to escalate emotionally, threatening to sue the social worker and saying that she would talk to the Governor. [RGB] reacted by trying to reassure and placate both Mother and the visitation supervisor. [RGB] cried as the supervisor carried her back to the State Building where [RGB] was placed in an office. Mother followed [RGB] and supervisor back to the office where she created a scene, shouting and demanding to see [RGB]. After Mother finally left, [RGB] asked the visitation supervisor whether it was safe to leave.

57.⁵On March 18, 2004, the Court again suspended visits between Mother and [RGB] pending another court hearing.

. . .

59. On April 1, 2004, after a hearing, the Court concluded that further visits with Mother would be psychologically injurious to [RGB]. Visitations between [RGB] and Mother were suspended indefinitely.

60. Shortly after the visits with Mother were suspended, [RGB's] symptoms of distress and anxiety disappeared.

61. Mother has had no contact with [RGB] since March 12, 2004.

62. Over the years, Mother has substantially improved her circumstances. She has stopped abusing drugs and alcohol; her mental health condition has improved; she has required no hospitalization for mental health problems. Mother has consistently sought treatment and has taken medication when prescribed. Mother has found safe and stable housing, and has managed to maintain such housing for an extended period of time. She has terminated her relationship with an inappropriate, abusive partner. She has obtained and completed services, and has for the most part successfully completed the services required in her service plan.

63. Unfortunately[,] serious problems remain. Throughout the course of these proceedings, Mother has suffered from mental health disorders which seriously compromise her ability to provide appropriate care for [RGB].

64. Mother suffers from a mental health condition that distorts her perceptions of people and this causes her to come into conflict with and to refuse to cooperate with people that are trying to help her.

. . .

69. Mother does not understand or appreciate the impact that her own behavior has on [RGB]. She accepts little responsibility for [RGB's] problems and instead focuses on complaints and criticisms of others.

. . .

73. When visits with Mother were finally terminated, [RGB] was almost five. At that time, [RGB] was a very vulnerable child who suffered from anxiety, regressive behavior, negative psychological symptomatololgy [sic] and general emotional disruption. [RGB's] psychological distress threatened to interfere with her developmental growth and bonding abilities. [RGB's] psychological problems were primarily caused by stress generated by visits with Mother.

74. At the time that visits between Mother and [RGB] were terminated, the visits were causing injury to [RGB's] psychological capacity as evidenced by a substantial impairment in [RGB's] ability to function. Had the visits with Mother continued, [RGB] would have suffered continued psychological harm which would have resulted in serious injury to her, delaying physical, emotional, social, and/or psychological development with long term negative consequences for the child.

75. Despite numerous and extensive efforts by many service providers and therapists, it appears unlikely that the mother/daughter relationship between Mother and [RGB] will improve. Returning [RGB] to Mother's home and care would be harmful to [RGB].

76. [RGB] is now almost six. After visits with her mother terminated, [RGB's] symptoms of psychological distress have abated and she is doing very well.

77. Under the circumstances presented in this case, reasonable efforts were made by the DHS to make it possible for [RGB] to return to her mother's home.

78. Mother and Father⁶are not currently able to provide [RGB] with a safe family home, even with the assistance of a service plan. It is not reasonably foreseeable that either parent will become able to provide [RGB] with a safe family home within a reasonable period of time.

79. The proposed permanent plan is in the best interests of [RGB].

2. Permanent custody of [RGB] is awarded to the Department of Human Services pursuant to H.R.S.587-73(b)(1) and existing parental rights of Mother and Father of [RGB] are terminated.

. . .

4. It is in [RGB's] best interests that the participation of Mother and Father in subsequent hearings be limited or restricted to appearances on any motions for reliefPage 9from this decision and order or any motions necessary to pursue an appeal.

. . .

7.G. Kay lopa, stand-by counsel for Mother, isdischarged.Based on representations as to changes in her resource status, if Mother wishes the assistance of court-appointed counsel to pursue further relief or to perfect an appeal, she must tender a new application for court-appointed counsel to the Court immediately.

[Iopa] was appointed as stand by counsel as [Mother] wanted to represent herself. At times [Mother] represented herself and at times relied on Ms. Iopa. The court accepted this as the court felt it was useful. The court has seen nothing to indicate Ms. Iopa [has] not been effective in her representation and notes Ms. Iopa has worked hard to assist [Mother]. Little purpose would be served to appoint a new attorney. The new attorney would have a difficult time getting up to speed due to the volume of documents in this case does not see how new counsel could provide better representation.

3. Assigned counsel, Kay Iopa, has told me repeatedly since July 29, 2004 that "it is beyond my scope of duties as stand-by counsel" to help locate, contact, or interview witnesses.

4. By contrast, a) the lawyer has made decisions without my knowledge or consent b) Kay Iopa's assignment to this case has caused lawyers who were interested in this case to decline, because they choose not to compete with the lawyer assigned as counsel.

5. Affiant has enough money today to secure independent counsel.

6. Absence of counsel would encourage new counsel to help me conclude this case effectively, and therefore would in fact be more time and cost effective.

7. Affiant compels the court to note that this lawyer, and counsel preceding assigned by the court, have neglected proper counsel or representation and proof of my ability to work with another lawyer needs to be considered.

8. Volunteer lawyer prior to that was effective in returning my child home, then was unable to continue pro bono.

. . .

1. I am the mother of [RGB];

2. The court made a finding to terminate my parental rights on March 11, 2005.

3. Counsel assigned by this court remains ineffective to bring this matter to justice;

4. The court made it's finding based on false and inaccurate information;

5. Based on the mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, professional error, misconduct and/or newly discovered evidence, I now bring this motion.

2. I am bringing this Motion . . . because [Mother] believes that there has been (a) mistake, inadvertence, and/or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); and (c) fraud, misrepresentations and/or other misconduct by the state.

3. [Mother] states that the court's final judgment is based on false testimony and deficient documents, some of which she was not able to properly cross-examine, and therefore through mistake, inadvertence, and/or excusable neglect the court has rendered an erroneous decision which must be corrected.

4. Under-signed was appointed as counsel to [Mother] after the ten day time allowed for in Rule 59(b) and therefore she and [Mother] did not have an opportunity to discuss [Mother's] concerns and/or go through the voluminous record in this case.

5. [Mother] believes that the State's witnesses, documents, and testimony were fraudulent, grossly misrepresented facts, and constituted purposeful misconduct.

6. [Mother] has attempted to bring up these points and arguments, as well has [sic] have her side of the case heard, to the court in the past by [sic] was prevented from doing so by her attorneys.

2. That I was unaware that a Notice of Appeal had not been filed in the case herein. I have only done a few Family Court DHS appeals and in all previous cases, the prior attorney had filed the Notice of Appeal.

. . .

6. That between late March and August of this year, I have had four (4) close family members . . . pass away. Therefore, I may have been preoccupied and not as vigilant about case details.

7. That the delay in filing the Notice of Appeal was in no way caused by the appellant, who is understandably quite anxious about this case.

2. That on or about September 30, 2005[,] I filed a Notice of Appeal in the case herein.

3. That sometime in October, I was notified by Family Court Clerk Jodi Leialoha that my cover page was in error and that the documents were being returned to me for corrections.

4. That I waited for the return of the documents and checked my court jacket at the Circuit Court on a weekly basis. I did not realize that the documents were returned to me via my Family Court jacket until late November.

5. That my close friend . . . passed away in late November and I left shortly thereafter for the mainland to attend his funeral and for sometime off.

6. That due to the stresses of leaving for the mainland, holidays, and finishing up work for EPIC/Ohana Conferencing, I completely forgot about making the appropriate corrections for this case.

7. That the delays in filing all papers in this case are due to my irresponsibility and are in no way caused by the appellant, who is understandably quite anxious about this case.

. . .

2. I am bringing this Motion for Withdrawal and Substitution of Counsel because I believe that a legal conflict exists with my continued representation of [Mother].

3. [Mother's] Rule 60 motion alleges in part ineffective assistance of counsel. I am one of the three attorneys who may not have effectively assisted [Mother].

4. [Mother] verbally executed a waiver of conflict with me at the last court hearing.

5. I do not want to see [Mother] prejudiced in anyway [sic] by her waiver and I have spoken to her about the importance of preserving all possible grounds of appeal. [Mother] stated that it was not her intent that this waiver be "permanent."

. . .

10. [Mother] is in contact with an attorney (in California, but also still actively licensed in Hawaii) who has excellent foresight and understanding about this case. I have also spoken with him about the pending Rule 60 motion and possible appeal. It is my recommendation that the court consider appointing this individual as [Mother's] counsel.

(1) the motion only requests general relief and Rule 60(b) requires particularity with respect to [] some of the relief being sought in this motion; (2) the motion fails to provide any new evidence to support a basis for relief under Rule 60(b), Hawaii Family Court Rules; (3) as to the relief sought, the court afforded Mother . . . extensive time at trial to present evidence to support the relief currently being requested and to address all of the issues for which relief is being sought in this motion; (3)[sic] the court appointed legal counsels to assist Mother . . . to the extent she was willing to work with the legal counsels appointed; (4) Rule 6, Hawaii Family Court Rules does not permit the court to extend or enlarge the time within which to bring this motion and the court will not enlarge or extend the time within which this motion can be brought; and (5) the time within which to bring this motion has been long outstanding causing delay in the final resolution of the case and this matter needs to be put to rest[.]

The family court also found:

Mother['s] . . . parental rights have been terminated and due to this status and the possibility of dissemination of these confidential records, the court finds that future court records are not currently available to Mother . . .; provided however that court records will be made available for any appellate review of this decision.

the Order Denying Mother's Motion to Reconsider Denial of Oral Motion To Continue Trial; and Exclusion of Exhibits Filed December 23, 2004, filed on March 7, 2005,¹³and/or, the Order Denying Mother'sPage 14Motion to Reinstate Visitation Filed January 11, 2005, filed on March 7, 2005,¹⁴and/orat the time of entry of the Court's Findings of Fact, Conclusions of Law and Order filed on March 11, 2005.

[Mother] did not have competent or any counsel when her child was permanently removed or taken away by Order on March 11, 2005, thus, the lack thereafter of a fair and legal opportunity to have further evidence considered or not considered, as well as losing her right to appeal due to severe time constraints.

A. As to Mothers [sic] claim that Mother lacked representation, the record clearly reflects that both Judges involved in this case made great effort to have Mother represented throughout the proceedings. The court accommodated Mother when she requested to have her counsel discharged and had standby counsel appointed to assist Mother throughout the case, all of which is reflected in the court's prior ruling contained in it's Findings of Fact, Conclusions of Law and Order filed March 11, 2005;

B. The court adopts all of the facts, law and reasons cited in DHS' Memorandum in Opposition [to Mother's motion] . . .

Her attorney selected by the trial court was appointed so late that it was clearly foreseeable that the 30 day appeal period would run. The responsibility in initially correcting this problem laid with Judge Gaddis, who initiated and created the problem at Mother's expense. . . . Judge Gaddis could have made the appointment of new counselwhileextending the due date to file a Notice of Appeal. Instead, he made a very late appointment of new counsel and jeopardized the legal and appeal interests of Mother. The trial judge not only filed an order against Mother, he failed to also protect Mother's concomitant due process interests in ensuring that she would be able totimely filea new Notice of Appeal. This is a clear violation of the due process rights of Mother that was easily preventable by the trial court.

Mother fails to identify with specificity, however, at which points in the case that she was unconstitutionally deprived of access to competent counsel. It appears from the record that Mother was represented by appointed counsel or standby consulting counsel at all hearings leading up to the Termination Order. . . . More importantly, . . . Mother does not identify any specific error or omission of counsel during the events and proceedings which culminated in the Termination Order.

[T]his court is troubled by the impact of the Termination Order's immediate discharge of Mother's standby attorney, particularly in light of the [f]amily [c]ourt's assessment of Mother's mental health status . . . That said, Mother has not identified to this court a single "appealable issue" that could have been raised had counsel preserved her rights to an appeal from the Termination Order.

We consider, by analogy, the standard that is applied to claims of ineffective assistance of appellate counsel in criminal matters. . . . In this case, Mother has failed to even suggest a meritorious basis upon which counsel could have filed a motion to reconsider and could have raised on appeal from the Termination Order. For these reasons, we conclude that the Family Court did not err in declining to grant Mother relief based on ineffective assistance of counsel.

This limitation appears to be supported by HRS §587-73(b)(4) (2006) and is grounded in the Family Court's prior final decision that Mother had no further parental rights or interests in the proceedings. Mother has not informed this court of any documents or category of documents that she reasonably requested access to or why she needs full access to the post-November 6, 2006 record in this case. Mother has failed to identify any prejudice stemming from this limitation. . . . We conclude that the Circuit Court did not err in limiting Mother's access to the post-November 6, 2006 confidential record in this case.

[s]ince Rule 60(b)(6) relief is contrary to the general rule favoring finality of actions, the court must carefully weigh all of the conflicting considerations inherent in such applications. Once the court has made a determination to grant or deny relief, the exercise of its discretion will not be set aside unless the appellate court is persuaded that, under the circumstances of the case, the court abused its discretion.

[t]he dispositive question . . . is whether the threeEldridgefactors,¹⁶when weighed against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty, suffice to rebut that presumption and thus to lead to the conclusion that the Due Process Clause requires the appointment of counsel when a State seeks to terminate an indigent's parental status.

Guardian ad litem; court appointed counsel, (a) The court shall appoint a guardian ad litem for the child to serve throughout the pendency of the child protective proceedings under this chapter. The courtmayappoint additional counsel for the child pursuant to subsection (c) or independent counsel for any other party if the party is an indigent, counsel is necessary to protect the party's interests adequately, and the interests are not represented adequately by another party who is represented by counsel.

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from any or all of the provisions of a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or(6) any other reason justifying relief from theoperation of the judgment. The motion shall, be madewithin a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceedings was entered or taken.

the movant must show that (1) the motion is based on some reason other than those specifically stated in clauses 60(b)(1) through (5); (2) the reason urged is such as to justify the relief; and (3) the motion is made within a reasonable time.

The first requirement is self-explanatory and merely indicates that subsection (6) is a residual clause to provide relief for considerations not covered by the preceding five clauses. The second requirement means that the movant must prove that there are exceptional circumstances justifying relief.

The third requirement calls for diligence by the moving party. Although Rule 60(b)(6) motions are not subject to the one-year limitation, they must be brought within a reasonable time. What constitutes a "reasonable time" is determined in the light of all attendant circumstances, intervening rights, loss of evidence, prejudice to the adverse party, the commanding equities of the case, and the general policy that judgments be final.

Since Rule 60(b)(6) relief is contrary to the general rule favoring finality of actions, the court must carefully weigh all of the conflicting considerations inherent in such applications.

2. The use of Rule 60(b)(6) as a vehicle to raiseineffective assistance of counsel in termination of parentalrights cases

[w]hat constitutes a "reasonable time" depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to other parties.

If cases are to have finality, the operation of rule 60(b) must receive "extremely meagre scope." Rule 60 is to litigation what mouth-to-mouth resuscitation is to first aid: a life-saving treatment, applicable in desperate cases. Achieving finality and minimizing delay and uncertainty are appropriate considerations when acting on any rule 60(b) motion; they are prime considerations . . . when the rights, interests,Page 22and welfare of children in custody and adoption proceedings are involved.

counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.

[i]f the defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to relief.

As with all applications of theStricklandtest, the question of whether a given defendant has made the requisite showing will turn on the facts of a particular case. Nonetheless, evidence that there were non-frivolous grounds for appeal or that the defendant in question promptly expressedPage 24a desire to appeal will often be highly relevant in making this determination.

Assuming,arguendo, that there was a duty to consult in this case, it is impossible to determine whether that duty was satisfied without knowing whether [defense counsel] advised [Flores-Ortega] about the advantages and disadvantages of taking an appeal and made a reasonable effort to discover his wishes. Based on the record before us, we are unable to determine whether [defense counsel] had a duty to consult with [Flores-Ortega] (either because there were potential grounds for appeal or because [Flores-Ortega] expressed interest in appealing), whether she satisfied her obligations, and, if she did not, whether [Flores-Ortega] was prejudiced thereby.

if any one of the circumstances in this case were different, we may have reached a different result. In particular, we might have been inclined to dismiss the appeal if the untimely filing of the notice of appeal were attributable to mother's carelessness or inaction, or if the delay had been longer or exceeded the EPP deadline for permanent placement of the child.

The First Circuit noted that: Were this a criminal case, counsel's failure to comply with a defendant's request to appeal would be treated as prejudiceper se.But we are unwilling, unless directed to do so, to incorporate into civil deportation proceedings the whole apparatus ofSixth Amendmentprecedent. Our concern in the immigration context is not with theSixth Amendmentbut with preserving a fair opportunity to have a waiver considered; it does not include an opportunity to tie up deportation proceedings in knots through collateral attacks on defectsthat would not plausibly have altered theresult.

In the context of termination cases, extended litigation imposes that burden on the most vulnerable people whom the system and such cases seek to protect: the children. As Justice Powell wrote, "There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current `home,' under the care of his parents or foster parents, especially when such uncertainty is prolonged."Lehman,458 U.S. at 513-14,102 S.Ct. 3231. Justice Joette Katz made a similar observation when Connecticut's high court decided not to permit state habeas as a vehicle for collateral attacks on judgments of termination: "[T]here exists, as the trial court noted in this case, a `frightening possibility that a habeas petition will negate the permanent placement of a child whose status had presumably been in limbo for several years.' Consequently, the state's interest as paren patriae militates against allowing the writ."In re Jonathan M.,255 Conn. 208,764 A.2d 739,753(2001) (footnote omitted).

To permit the children to travel from one home to another while termination proceedings span across the years is "incongruous and contrary to the federal and state policy of minimizing the `foster care drift' that has doomed millions of children to interim, multiple or otherwise impermanent placement."Inre Adoption of A.M.B.,812 A.2d 659,667(Pa.Super.Ct. 2002). Due to the immeasurable damage a child may suffer amidst the uncertainty that comes with such collateral attacks, it is in the child's best interest and overall well being to limit the potential for years of litigation and instability. "It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty."Lehman,458 U.S. at 513,102 S.Ct. 3231.

1. Mother failed to establish that her pre-terminationcounsel was ineffective

the Order Denying Mother's Motion to Reconsider Denial of Oral Motion to Continue Trial; and Exclusion of Exhibits Filed December 23, 2004, filed on March 7, 2005,and/or, the Order Denying Mother's Motion to Reinstate Visitation Filed January 11, 2005, filed on March 7, 2005,and/or, at the time of entry of the Court's Findings of Fact, Conclusions of Law and Order filed on March 11, 2005.

2. The family court did not abuse its discretion indenying Mother's motion with regard to the post-terminationproceedings

[RGB] has lived with her foster parents for three years and five months and is well-adjusted and has adapted to her environment. . . .

[RGB] is happy and doing well in her current placement. It would be in the best interest of [RGB] if the adoption process were to be completed sooner rather than later. However, Deputy Attorney General, Howard Shiroma, reports that Mother is appealing the [Termination Order] Thus, Mother's appeal to the [c]ourt may delay the adoption process, negatively impacting the well-being of [RGB].

With regard to the permanency goal of adoption of he [sic] child . . ., I have spoken to Carrie Yonemori, the attorney appointed to represent Mother in her appeal of the [c]ourt's permanency order, and she has related that the necessary paperwork pertaining to such appeal should be submitted to the Supreme Court shortly. Although it is certainly not in the child's best interest, I would suppose that we would be unable to proceed with any adoption until such appeal is resolved.

[RGB's foster parents] want to adopt [RGB] and have been ready to proceed with the adoption process ever since biological mother's parental rights were terminated in March 2005. However, biological Mother's pending appeal to the court . . . has prevented the DHS and [RGB's foster parents] from proceeding with the adoption. Hence, [foster parents] and [RGB] and the entire family are disappointed. Per [foster mother], [RGB] continually wonders and asks "when will she be adopted".

Mother['s] . . . parental rights have been terminated and due to this status and the possibility of dissemination of these confidentialPage 31records, the court finds that future court records are not currently available to Mother . . .; provided however that court records will be made available for any appellate review of this decision.

the court shall order . . . [t]hat such further orders as the court deems to be in the best interests of the child, including, but not limited to, restricting or excluding unnecessary parties from participating in adoption or other subsequent proceedings, be entered[.]