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In this termination of parental rights appeal,
the respondent mother alleged that her daughter, Lyric, had a constitutional
right to conflict free legal representation and was deprived of
that right by her attorney. Finding the record inadequate to make
a finding on the conflict of interest claim, the appellate court
declined to decide whether the child had a constitutional right
to effective, conflict free representation.
At trial, the mother's attorney engaged in
the following colloquy with the court, which exposes the critical
issue present in the case:
"Now, why not the two biological parents?
First of all, I don't think either of them are evil, just unsuited.
[The respondent] has led a nomadic existence. She's gone from
place to place. She's now with her brother, but where will she
be tomorrow, next week, next month, next year? And if Lyric were
to trail along in her wake, what would happen to this little girl?
Lyric needs the stability that she's found in the foster home.
"And also, [the respondent] has a history
of drug abuse and, yes ... she is to be commended for seeking
out treatment, but treatment has always failed. As late as [approximately
five weeks ago] [the respondent] tested positive for marijuana.
This is not something that we want a little girl to be exposed
to, and, granted, today, [the respondent] is alert and oriented
and clean and sober, but again, what of tomorrow, next month,
next year? [The respondent's] history is just too unstable, and
she may have been the psychological parent at one time, but as
[the psychologist] has testified, she is no longer....
"Right now, Lyric is in a situation that works.
And so my point, Your Honor, is that I ask this court to grant
the petition for termination of parental rights. Let Lyric have
a normal, stable, secure life."
On appeal, the respondent argued that Lyric
was deprived of her right to conflict free representation when her
attorney/GAL supported the department's termination petition, in
spite of her expressed wishes to return home. As evidence of Lyric's
desire to be reunified, the respondent cited a report authored by
the court-appointed psychologist that noted she was Lyric's psychological
parent, as well as a DCF social study that described Lyric's interest
in reunification.
Citing In re Melody L. and the two-part conflict
of interest analysis of In re Christina M., which provides that
a trial court has a duty to inquire into a conflict of interest
when (1) there has been a timely objection at trial or (2) the trial
court knows or reasonably should know a particular conflict exists,
the appellate court noted that while the respondent had standing
to assert constitutional claims on behalf of her daughter, insufficient
evidence existed to reach the "high threshold that must be satisfied
before the trial court affirmatively must inquire as to whether
a conflict exists." In particular, the court noted Lyric's ambivalence
about returning home, as evidenced in other psychological evaluations,
and a more recent evaluation which reported that Lyric's foster
mother was her psychological parent. Moreover, even without this
evidence the court noted that the record cited by the respondent
did not support a finding that the trial court knew or should have
known a conflict existed. In light of what the court described as
the "inadequacy of the record in the present case," it declined
to address the more interesting issue of "whether children in Lyric's
position have a constitutional right to effective assistance of
counsel."
One of the larger questions that went unanswered
in this case is when does a child's attorney have a duty to inform
the court that a conflict, or potential conflict exists (within
the scope of the Rules of Professional Conduct see Conn. R. Prof.
Conduct. 1.14., and within the context of Conn. Gen. Stat. § 46b-129a.
Also of note is that the decision does not mention Lyric's age.
However - in the trial court decision by Graziani, J., the court
indicated that Lyric was six years old at the time of the TPR trial.
See In re Lyric H., 2008 WL 2096789 (Conn. Super 2008).
The case may be accessed by going to the Judicial
Branch website at http://www.jud.ct.gov/external/supapp/Cases/AROap/AP114/114AP302.pdf
Justin Taylor, CCA Legal Intern
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