In re Lyric H.

114 Conn. App. 582 (2009)

May 26, 2009

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 athttp://www.jud.ct.gov/external/supapp/Cases/AROap/AP114/114AP302.pdf

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