dissenting in part and concurring in part.
This is a troublesome case because the conduct of the mother, T.W., is not, by any stretch of the imagination, as culpable or opprobrious as that of the father, J.W. However, the mother has multiple sclerosis, is dependent on the father, and has made no effort to establish either a life or a defense separate and apart from the father. What then do we do when termination of parental rights is clearly justified for one parent, but not so clearly for the other, and the couple not only willingly shares bed and board but also the same attorney. I see their interests as adverse but, apparently, they did not and still do not. “A client may consent to representation notwithstanding that there might be a conflict.” Comment, Rule 1.7, North Dakota Rules of Professional Conduct. However, NDCC § 27-20-26(1) requires the appointment of separate counsel “[i]f the interests of two or more parties conflict.” Under the statute and as a policy matter, I believe the trial court should have appointed separate counsel for each party, that is, for T.W. and J.W. Therefore, I would reverse as to T.W., the mother, and J.W., the father of the four younger children, and affirm as to W.H., the father of the oldest child.
The petition for termination alleged J.W.’s inappropriate reliance on the eldest' child to provide care for the younger children when his wife, T.W., was hospitalized. He left the children unattended on several occasions for reasons that were far from compelling, thereby leaving the youngsters in dire need of adult care and supervision. The petition also alleged inappropriate discipline and verbal abuse by the fáther. It detailed his attempt to suffocate the youngest child. The petition also described his chemical addiction, his refusal to undergo counseling and his denial of the seriousness of his problem. That each of these charges is serious unto itself is dramatically underscored when compared with the allegations against the mother, namely, that both parents “require the oldest child to miss school to care for thé younger child” and that the mother’s multiple sclerosis disabled her from caring for the children.
The petition should have alerted the trial court of the need for each parent to rely on different defenses, likely antagonistic to the interests of the other spouse. I am concerned, as a matter of common sense, over the ability of a single attorney to counsel two clients whose interests likely will diverge. To put it plainly, when a defense may require one spouse to choose between marriage and child custody, or to attack the other’s conduct or credibility, I seriously question whether a single lawyer representing those two spouses can adequately counsel or vigorously represent each client’s interests to the extent our system of advocacy calls for. Section 27-20-26(1) should be read to require separate counsel in a case such as this. As for Rule 1.7, NDRProfR, even assuming that the attorney advised the husband and wife of these potential conflicts and assuming that the parents knowingly waived their rights to separate counsel, I believe that as a matter of sound policy and fair administration of justice, we should not place the burden of informing on the attorney or the burden of choosing to waive on the parties. Instead, in a parental termination proceeding, the trial court should appoint counsel for each party under the circumstances of this case.
Accordingly, I respectfully dissent from the judgment affirming the order terminating the parental rights of T.W. and J.W. and would reverse and remand for a new trial with separate counsel to be appointed. I concur in the judgment insofar as it affirms the termination of the parental rights of W.H., father of the eldest child.
MESCHKE, J., concurs.