In re Isiah J.

IN RE ISAIAH J. ET AL: RIGHT TO COUNSEL, EFFECTIVE ASSISTANCE, APPELLATE COUNSEL

Argued November 13, 2012—officially released January 24, 2013

(Lavine, J.)

 

The appellate court affirmed the trial court’s judgment terminating the respondent mother’s parental rights and rejected her claims that she was 1) denied the right to change counsel, 2) provided ineffective assistance of counsel, and 3) denied access to state-appointed appellate counsel.

 

The respondent mother’s first attorney in the child protection matter moved to withdraw from the case due to inability to contact the respondent.  The mother’s next counsel filed a similar motion prior to the beginning of trial on the termination of parental rights petition.  The withdrawal  motion was then joined by the mother on the second day of trial.  The court denied the motion, though it gave the mother a window of opportunity to secure new counsel or previous counsel of record.  When the mother did neither, the court resumed the trial and denied counsel and mother’s mutual motion for a new attorney.  The appellate court noted that ‘‘[t]here is no unlimited opportunity to obtain alternate counsel. . [and] [i]t is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . [A]bsent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error. . . . Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.’’ See also In re Kaitlyn A., 118 Conn. App. 21, 982 A. 2d 253 (2009).  The appellate court held that the court did not abuse its discretion in denying the respondent’s request for new counsel as there was no substantial reason to support the request and appointment of a new attorney would not have made any difference.

 

The court also rejected the mother’s claim of ineffective assistance of counsel, holding that ‘‘[i]n determining whether counsel has been ineffective in a termination proceeding . . . [t]he respondent must prove that [counsel’s performance] . . . contributed to the termination of parental rights. . . . A showing of incompetency without a showing of resulting prejudice . . . does not amount to ineffective assistance of counsel.’’ See In re Dylan C., 126 Conn. App. 71, 91, 10 A.3d 100 (2011). Here, the mother claimed several examples of her attorney’s alleged shortcomings, but did not specify any specific prejudice.  For example, respondent mother claimed that her attorney failed to rebut damaging evidence, but the court noted that there was no indication of what evidence counsel should have relied on in rebuttal.

 

Finally, the court denied mother’s claim that she had the right to judicial review of the Office of Public Defender’s determination that her appeal lacked merit and she would not be provided appellate counsel.  The mother relied on a California sixth amendment case to support this position.  The appellate court held that a statutory right to counsel in a termination of parental rights proceeding does not carry the same sixth amendment protections accorded to a criminal proceeding.

 

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