The Fourth District holds a parent who would have lost custody of her child despite alleged errors and omissions by her counsel could not show causation in a legal malpractice claim
Johnneisha Kemper was represented by appointed county attorneys when she lost custody of her child. Another attorney from the same office believed prior attorneys had committed error by waiving Kemper’s right to appointment of a guardian ad litem for herself as a minor, and recommended outside counsel. However, the same office continued to represent plaintiff in a new petition to regain custody, which was denied. The court found Kemper should have had a guardian ad litem in the original proceeding, but that the best interests of the child dictated Kemper not regain custody.
Kemper appealed based on claims of ineffective assistance of counsel in the initial proceeding. The Court of Appeal agreed that the juvenile court should have appointed guardian ad litem, and this may have changed the outcome, but the trial court’s decision a change of custody was not in the child’s best interests was within its discretion. However, the Court found there was no evidence that the initial attorney had no rational tactical purpose for waiving a guardian ad litem, and Kemper could not establish ineffective assistance of counsel. Further, there was no evidence that had the initial attorneys handled the case differently the outcome would have been different. The Court observed that ultimately it was Kemper’s living circumstances and failure to reunify with her child that led to the custody decision.
Kemper filed a legal malpractice action against her initial attorneys. They successfully moved for summary judgment arguing the appellate proceeding in the dependency case collaterally estopped Kemper.
The Court of Appeal in the legal malpractice case agreed the requirements for collateral estoppel were met. A final judgment was on the merits terminating Kemper’s parental rights; Kemper was a party in the dependency proceeding during the appeal in the underlying case; the identical issue was litigated and decided in the appeal in the underlying case; and the Court decided the critical issue against Kemper — alleged deficiencies in counsel’s performance did not cause the termination of her parental rights.
In both a dependency proceeding and a legal malpractice case a parent must show counsel’s representation fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. The Court of Appeal decision in the dependency case, that Kemper’s parental rights were terminated because of her own actions, was binding on Kemper in the legal malpractice action.
Application of collateral estoppel in a dependency appeal is appropriate because a litigant may present additional or necessary evidence in a habeas corpus petition to the appellate court. Kemper was entitled to and argued ineffective assistance of counsel on appeal and, had it been available, could have presented evidence on this topic.
The right to introduce additional evidence in a habeas petition is to protect the rights of the parent, and the child’s welfare. This policy is not advanced by allowing a litigant yet another opportunity to re-litigate the competency counsel in a civil action, because it would not affect the custody of the child.
Without application of collateral estoppel there is a danger of inconsistent judgments in the dependency proceeding and the malpractice case. This would encourage parents to avoid habeas in favor of damages in a civil malpractice case; this does not serve the best interests of dependent children.
It is not uncommon for a disappointed parent to blame an attorney for an adverse result. A rule allowing re-litigation of counsel’s conduct in a civil action would likely lead to a multitude of meritless actions.
Applying collateral estoppel in dependency malpractice claims follows rules applicable to malpractice claims in the criminal context. There, a plaintiff must prove both a civil malpractice claim and prove actual innocence through reversal of the conviction, or other exoneration by post-conviction relief. The effort to obtain post-conviction relief could include ineffective assistance of counsel. If a criminal malpractice plaintiff is denied post-conviction relief, the rule requiring exoneration acts as a collateral estoppel against the legal malpractice claim, and promotes other policy goals.
The Court was reinforced by its review of the entire record, which demonstrated the original dependency petition was necessary; that Kemper failed to comply with a reunification plan; and, at the time of the original proceedings, Kemper was not available to parent her child. Thus, the attorney’s alleged errors did not cause the underlying result.
Comment: Rules in the dependency and criminal legal malpractice contexts, while promoting policy goals, also render these practice areas low risk.