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In this
highly anticipated opinion, the Connecticut Supreme Court held that
parents have standing to assert claims that their child was denied
the right to effective counsel, but stopped short of addressing
the key issues raised in the appeal - namely whether the conflict
between a child's express wishes and her attorney's position at
trial merits constitutional review.
The respondent
parents appealed the trial court's termination of their parental
rights, arguing inter alia that their child's counsel did not advocate
for reunification despite the child's stated desire to return to
her parents' care. Accordingly, the parents contended that the child's
right to counsel was violated. They further claimed that the trial
court had an obligation, sua sponte, to address the conflict issue
because there was evidence in the record that the child's attorney
was not advocating for the child's expressed wishes. The state claimed
that the parents did not have standing to raise such a claim on
appeal.
The Court,
citing In re Shaquanna M., 61 Conn. App. 592 (2001), rejected
the State's argument regarding standing, observing that "it is difficult
to separate the right to federal due process of the [parent] from
those of her children." The Court determined that parents and children
"have a mutual interest in the preservation of family integrity"
and noted that "termination of parental status is irretrievably
destructive of that most fundamental family relationship." The Court
reasoned that parents must have standing to raise claims related
to the effectiveness of their child's counsel because the child's
lawyer helps shape the court's view of the child's interest. Thus,
a parent may be harmed if the child has inadequate counsel. The
Court ultimately did not decide the issue of whether the child's
right to counsel is constitutionally-rooted.
As to
the merits of the parents' claim, the Court concluded that the record
did not support the parents' claim that a conflict existed between
the child's expressed wishes and her attorney's position during
trial. The Court looked to criminal court procedures for its analysis
of the conflict argument. The Court noted that in criminal cases,
a trial judge has an obligation to address a conflict issue when
a timely objection has been raised or when there is sufficient evidence
of a conflict on the record. The Court also noted that a trial judge
may rely on the silence of a criminal defendant or his counsel in
deciding whether a conflict of interest exists. The trial judge
rightly depends on the good judgment of defense counsel who is "in
the best position professionally and ethically to determine when
a conflict of interest exists or will probably develop in the course
of a trial."
Applying
the criminal conflict standard to the presence case, the Court concluded
that there was insufficient evidence of a conflict in the record
to warrant the judge sua sponte to intervene. Additionally, no one
objected to the child's attorney's position at trial, the child's
attorney did not inform the court of a conflict, nor did the child's
attorney present evidence that would have put the court on notice
that a conflict existed. While there was some evidence on the record
of the child's desire to be with her parents, the Court noted that
this evidence was dated by the time of the termination trial and
that there was more recent evidence that the child was bonded with
the foster parents.
Although
the parents lost on the merits of their appeal, this opinion is
significant to the extent that parents and presumably children are
now able to raise issues related to the effectiveness of each other's
counsel on appeal. The Court's reasoning also seems to suggest that
parents and children could raise other significant legal issues
on each other's behalf, such as a denial of due process.
However,
the Court's examination of the conflict question raises several
questions as to the appropriateness of the analogy between a criminal
and child welfare proceeding. In addition, the differences between
the criminal and child welfare proceedings beg the question of how
a court should ensure that children's rights to effective counsel
are vindicated. The Supreme Court however may revisit what it deems
the "significant issues" raised by this appeal on another day.
This
case may be accessed by going to the Judicial Branch website at
www.jud.state.ct.us/external/supapp/Cases/AROcr/CR280/280CR1.pdf
(Sarah
Eagan 11/06)
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