In a previous blog post, we discussed the Dell v. Dell case dealing with termination of a mother's parental rights in favor of a stepparent adoption. In that case, the mother tried everything to get the termination of her rights reversed - she even tried blaming her attorney, alleging that the order should be revered due to ineffective assistance of counsel. Dell v. Dell, A15A1430 (2015). According to Georgia case law, "[i]n order to prevail on a claim of ineffective assistance of counsel the mother must show that her counsel's performance was deficient and that the deficient performance was prejudicial to her defense." Id. (citing In the Interest of A.H.P., 232 Ga. App. 330, 334(2) (500 SE2d 418) (1998)). Unfortunately for the mother in the Dell case, the Court of Appeals of Georgia was easily able to easily dismiss each of her allegations of ineffective assistance of counsel.
First, the mother argued that her attorney did not notify her of the hearing date. However, the attorney testified to the contrary and the evidence showed that she had notice, but told her attorney she was unable to attend. Second, the mother alleged that her attorney told the court that the mother agreed with the adoption when, in fact, she did not. Again, the Court of Appeals looked at the evidence presented at the hearing and found that the mother was mischaracterizing the attorney's words. The attorney was actually just trying to get the best outcome possible for the mother, given her complete lack of involvement with the child. Next, the mother argued that her attorney "failed to call witnesses who would testify on her behalf regarding her attempts to locate the father's whereabouts." However, her own testimony was that she found the father but still failed to pay child support. Thus, this "deficiency" did not prejudice her case. Finally, the mother alleged that her attorneys "failed to present crucial evidence" and "failed to properly question witnesses." However, she never identifies the crucial evidence they should have presented or the questions that should have been asked so there was no way to know if these alleged deficiencies impacted the outcome of her case.
If you plan to present an ineffective assistance of counsel argument, you must prove that your counsel's performance was deficient AND that the deficiencies were prejudicial to your case. You must have both. A deficiency that does make a difference in your case is not worth anything on this claim, as the mother in the Dell case found out.