Ensuring Effective Counsel for Parents: Extending Padilla to Termination of Parental Rights Proceedings

The increase in the number of incarcerated women, combined with the severe effects of ASFA's 15/22 rule, has dramatically increased the risk that a incarcerated mother face a termination of her parental rights. Currently, existing ethical and statutory protections have been insufficient to protect these parents’ rights to their children. However, after Padilla v. Kentucky, it is likely that there is a Sixth Amendment obligation on criminal defense attorneys to advise their clients about the effect of the criminal process on a TPR proceeding. This advice should not be limited to a mere suggestion that clients seek legal advice from an attorney specializing in TPR law. Instead, criminal defense attorneys are obligated to protect this unique population by providing advice and counsel throughout the criminal proceeding to their clients concerning how best to protect the family unit from TPR proceedings.