AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings CONNECTICUT

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings CONNECTICUT Copyright 2017 American Bar Association All rights reserved. American Bar Association Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: The materials herein may be reproduced, in whole or in part, provided that such use is for informational, noncommercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend Copyright 2017 American Bar Association. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; i

2 CONNECTICUT Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 2 1. SHELTER... 2 Federal Statutes and Court Decisions Interpreting Statutes SUSTENANCE... 2 Federal Statutes and Court Decisions Interpreting Statutes SAFETY AND/OR HEALTH... 3 A. Domestic Violence Protection Order Proceedings... 3 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings... 4 State Statutes and Court Decisions Interpreting Statutes... 4 D. Sex Offender Proceedings... 6 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings... 6 State Statutes and Court Decisions Interpreting Statutes CHILD CUSTODY... 7 A. Appointment of Counsel for Parent State-Initiated Proceedings... 7 State Statutes and Court Decisions Interpreting Statutes... 7 Federal Statutes and Court Decisions Interpreting Statutes State Court Rules and Court Decisions Interpreting Court Rules State Court Decisions Addressing Constitutional Due Process or Equal Protection B. Appointment of Counsel for Parent Privately Initiated Proceedings C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Federal Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Constitutional Due Process or Equal Protection D. Appointment of Counsel for Child Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Rules and Court Decisions Interpreting Court Rules B. Paternity Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Rules and Court Decisions Interpreting Court Rules State Court Decisions Addressing Constitutional Due Process or Equal Protection C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion D. Proceedings Involving Claims by or Against Prisoners State Statutes and Court Decisions Interpreting Statutes E. Education Proceedings ii

3 State Court Decisions Addressing Constitutional Due Process or Equal Protection State Court Decisions Addressing State Constitution s Open Courts Provision F. Proceedings to Establish Child Support Obligation State Court Decisions Addressing Constitutional Due Process or Equal Protection G. Forced Sterilization State Statutes and Court Decisions Interpreting Statutes Law Addressing an Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes State Statutes and Court Decisions Interpreting Statutes iii

4 Preface Important Information to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, at the Directory s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize information within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warranties concerning the information contained therein, which has been updated to reflect the law through mid The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether counsel for a child means a clientdirected attorney or a best interests attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research did not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports. The Directory attempts to identify as unpublished any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases. Acknowledgments This Directory was a multi-year project of the ABA s Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National Coalition for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory s reports. The Acknowledgments, at the Directory s home page, details additional specific contributions of the many individuals involved in this project. 1

5 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that [a]n aggrieved person may commence a civil action in an appropriate United States district court or State court. 42 U.S.C (a)(1)(a). Further, [u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may-- (1) appoint an attorney for such person. 42 U.S.C. 3613(b). 2. SUSTENANCE Federal Statutes and Court Decisions Interpreting Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that [u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant. 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed: Title VII's provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII's remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill the role of a private attorney general, vindicating a policy of the highest priority. Once the plaintiff has triggered the attorney appointment provision, courts must give serious consideration to the plaintiff's request such discretionary choices are not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound legal principles. Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition. 737 F.2d 1173, (D.C. Cir. 1984). 2

6 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings No law could be located regarding the appointment of counsel for indigent litigants in domestic violence protection order proceedings. B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Statutes and Court Decisions Interpreting Statutes In guardianship proceedings involving those with an intellectual disability: Unless the respondent is represented by counsel, the court shall immediately appoint counsel for the respondent. If the respondent is indigent or otherwise unable to pay for counsel, the cost for such counsel shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. Conn. Gen. Stat. Ann. 45a-673. Moreover, in review proceedings for such guardianships: If the protected person is unable to request or obtain an attorney, the court shall appoint an attorney for the protected person. If the protected person is unable to pay for the services of the attorney, the reasonable compensation of such attorney shall be established by, and paid from funds appropriated to, the Judicial Department; however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. Id. 45a-681(a)(6). Persons subject to conservatorship proceedings are entitled to have an attorney represent them. The statute states: A respondent, as defined in section 45a-644, or a conserved person, as defined in section 45a-644, who is subject to proceedings subsequent to the appointment of a conservator pursuant to an application for involuntary representation shall have the 3

7 right to be represented by an attorney of the respondent's or conserved person's choosing at the expense of the respondent or conserved person or, if the respondent or conserved person is indigent, within the payment guidelines of the Court of Probate. Conn. Gen. Stat. Ann. 45a-649a(a). Should the court find the person is indigent or otherwise unable to pay for representation by an attorney, the court shall appoint an attorney for the respondent or conserved person unless the respondent or conserved person refuses to be represented by an attorney and the court finds that the respondent or conserved person understands the nature of the refusal. Conn. Gen. Stat. Ann. 45a-649a(b). See also id 45a-660(c) (for review of regular conservatorships, [t]he court shall review each conservatorship not later than one year after the conservatorship was ordered, and not less than every three years after such initial one-year review. If the conserved person is unable to request or obtain an attorney, the court shall appoint an attorney. ) The statute also addresses the issue of compensation for appointed counsel: If the respondent or conserved person is indigent, an attorney appointed under this section shall be paid a reasonable rate of compensation. Rates of compensation for such appointed attorneys shall be established by the office of the Probate Court Administrator. Such compensation shall be paid from funds appropriated to the Judicial Department. If funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be paid from the Probate Court Administration Fund. Id. 45a-649a(e). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes In a hearing on a commitment application for a person with psychiatric disabilities: If a court [deciding on the confinement of a person with psychiatric disabilities] finds such respondent is indigent or otherwise unable to pay for counsel, the court shall appoint counsel for such respondent, unless such respondent refuses counsel and the court finds that the respondent understands the nature of his or her refusal. The court shall provide such respondent a reasonable opportunity to select his or her own counsel to be appointed by the court. 4

8 Conn. Gen. Stat. Ann. 17a-498(b)(1). The statute also addresses the issue of compensation for appointed counsel: Id. The reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the Judicial Department, except that if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. At a hearing on a petition for commitment of a person to an inpatient treatment facility for treatment of alcohol or drug dependency, the person must receive notice that he or she has the right to counsel and, if indigent, to have counsel appointed to represent him or her. Conn. Gen. Stat. Ann. 17a-685(c). At a hearing for an application to terminate commitment of a person to an inpatient treatment facility for treatment of alcohol or drug dependency, the person must also receive notice that he or she has a right to counsel... [and] that he or she, if indigent, has a right to have counsel appointed to represent him or her. Id. 17a-685(l). As for attorney s fees: The court shall appoint counsel for the respondent from a panel of attorneys admitted to practice in this state provided by the Probate Court Administrator in accordance with regulations promulgated by the Probate Court Administrator in accordance with section 45a-77. The reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the Judicial Department. If funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. Id. 17a-685(c). Conn. Stat. 17a-274(d) provides that where the probate court determines whether to place a person with intellectual disability with the Department of Developmental Services for placement in any appropriate setting which meets the person s habilitative needs in the least restrictive environment available or which can be created within existing resources of the department, the person has a right to counsel. For such appointment, The reasonable compensation for counsel provided to indigent respondents shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be 5

9 established by the Probate Court Administrator and paid from the Probate Court Administration Fund. Id. D. Sex Offender Proceedings No law could be located regarding the appointment of counsel for indigent civil litigants in sex offender proceedings. However, this jurisdiction might not have a mechanism for confining sexually dangerous/violent persons. E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings State Statutes and Court Decisions Interpreting Statutes In the event that the Governor declares a public health emergency, the Commissioner of the Connecticut Department of Public Health may, as authorized, order certain individuals into quarantine or isolation. Conn. Gen. Stat. Ann. 19a-131b(a). An individual subject to a quarantine or isolation order issued by the Commissioner may appeal such order. Id. 19a- 131b(f). With respect to the hearing: Notice of the hearing shall be given to the respondent and shall inform the respondent that... [he or she] has a right to counsel... [and] that the respondent, if indigent or otherwise unable to pay for or obtain counsel, has a right to have counsel appointed to represent the respondent.... If the court finds such respondent is indigent or otherwise unable to pay for or obtain counsel, the court shall appoint counsel for such respondent.... The court shall provide such respondent a reasonable opportunity to select such respondent's own counsel to be appointed by the court. If the respondent does not select counsel or if counsel selected by the respondent refuses to represent the respondent or is not available for such representation, the court shall appoint counsel for the respondent from a panel of attorneys admitted to practice in this state provided by the Probate Court Administrator.... Id. 19a-131b(g). The statute also addresses the issue of compensation for appointed counsel: The reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the Judicial Department, but, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. 6

10 Id. See also id. 19a-221(f) (guaranteeing right to counsel for subject of municipal quarantine order); Id. 19a-265(h)(2) (guaranteeing right to counsel for subject of emergency commitment of person with active tuberculosis). In the event that the Governor declares a public health emergency, the Commissioner of the Connecticut Department of Public Health may, as authorized, order the vaccination of certain individuals. Conn. Gen. Stat. Ann. 19a-131e(a). An individual subject to a vaccination order issued by the Commissioner may appeal such order. Id. 19a-131b(c). With respect to the hearing: Notice of the hearing shall be given to the respondent and shall inform the respondent that [he or she]... has a right to counsel... that the respondent, if indigent or otherwise unable to pay for or obtain counsel, has a right to have counsel appointed to represent the respondent.... If the court finds such respondent is indigent or otherwise unable to pay for or obtain counsel, the court shall appoint counsel for such respondent, unless such respondent refuses counsel and the court finds that the respondent understands the nature of his or her refusal. The court shall provide such respondent a reasonable opportunity to select such respondent s own counsel to be appointed by the court. Id. 19a-131e(d). Id. The statute also addresses the issue of compensation for appointed counsel: The reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the Judicial Department, but, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes In a proceeding on behalf of a neglected, uncared-for, or abused child or youth, the parent or parents or guardian of the child or youth shall have the right to counsel, and shall be 7

11 so informed by the judge, and... if they are unable to afford counsel, counsel will be provided for them. Id. 46b-135(b). See also 46b-136 ( In any proceeding in a juvenile matter, the judge before whom such proceeding is pending shall, even in the absence of a request to do so, provide an attorney to represent the child s or youth s parent or parents or guardian, or other person having control of the child or youth, if such judge determines that the interests of justice so require and in any proceeding in which the custody of a child is at issue, such judge may authorize such attorney or appoint another attorney to represent such parent, guardian or other person on an appeal from a decision in such proceeding ); 46b-129(c) ( The preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to subsection (a) of this section shall be held in order for the court to: (1) Advise the parent or guardian of the allegations contained in all petitions and applications that are the subject of the hearing and the parent s or guardian s right to counsel pursuant to subsection (b) of section 46b-135 (3) Upon request, appoint an attorney to represent the respondent when the respondent is unable to afford representation, in accordance with subsection (b) of section a ); (c) (establishing guidelines for attorneys appointed for parents); a(a) ( The judicial authority before whom a family relations matter described in subparagraph (A) of subdivision (1) of subsection (c) of section is pending shall determine eligibility for counsel for the parents or guardian of a child or youth if they are unable to afford counsel. Upon a finding that a party is unable to afford counsel, the judicial authority shall appoint an attorney to provide representation from a list of qualified attorneys provided by the office of Chief Public Defender. ). Regarding payment for such attorneys for the parents, 46b-136 adds: Where, under the provisions of this section, the court so appoints counsel for any such party who is found able to pay, in whole or in part, the cost thereof, the court shall assess as costs against such parents, guardian or custodian, including any agency vested with the legal custody of the child or youth, the expense so incurred and paid by the Division of Public Defender Services in providing such counsel, to the extent of their financial ability to do so. The Division of Public Defender Services shall establish the rate at which counsel provided pursuant to this section shall be compensated. With respect to termination of parental rights proceedings (which includes some relinquishments), 1 if a respondent parent 2 appears without counsel 3 to a hearing held on any 1 Conn. Stat. Ann. 45a-715(a) provides: Any of the following persons may petition the Court of Probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor... However, in 2015 the legislature changed the right to counsel statute such that it only guarantees counsel for respondent parents instead of parties. Thus, if the relinquishing parent initiated the proceeding, they would not have a right to counsel, but if they agree to relinquish after a proceeding is initiated against them such that they are a respondent, they would. 8

12 petition for the termination of parental rights filed in the Court of Probate under section 45a- 715 [adoption], or filed in the Superior Court under section 17a-112 [abuse/neglect], or transferred to the Superior Court from the Court of Probate under section 45a-715 [adoption], then the court shall inform such respondent parent of his or her right to counsel and upon request, if he or she is unable to pay for counsel, shall appoint counsel to represent such respondent parent. Conn. Gen. Stat. Ann. 45a-717(a)-(b). The statute adds that [n]o respondent parent may waive counsel unless the court has first explained the nature and meaning of a petition for the termination of parental rights. Id. 45a-717(b). In State v. Anonymous, 425 A.2d 939, 941 (Conn. 1979), the court held in a termination of parental rights case that [w]here... as here, a statute... or practice book rule... mandates the assistance of counsel, it is implicit that this means competent counsel. Id. at 943. Additionally, regarding compensation, Conn. Gen. Stat. Ann. 45a-717(b) states: If the respondent parent is unable to pay for such respondent's own counsel or if the child or the parent or guardian of the child is unable to pay for the child's counsel, in the case of a Superior Court matter, the reasonable compensation of counsel appointed for the respondent parent or the child shall be established by, and paid from funds appropriated to, the Judicial Department and, in the case of a Probate Court matter, the reasonable compensation of counsel appointed for the respondent parent or the child shall be established by, and paid from funds appropriated to, the Judicial Department, however, in the case of a Probate Court matter, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. Id. The judge must also appoint counsel, even without a request, for the... youth's parent or parents or guardian, or other person having control of the child or youth in all other juvenile matters 4 if such judge determines that the interests of justice so require. Conn. Gen. Stat. 2 Until 2015, the right to counsel accrued to any party. 3 In In re Baby Girl B., 224 Conn. 263, 297 n.22 (1992), the Connecticut Supreme Court stated that a trial court should seriously consider the appointment of legal counsel to represent an absent parent in proceedings for the termination of parental rights in those cases in which the parent has received only constructive notice of the pendency of the proceedings. 4 Juvenile matters in the civil session are defined within the chapter to include: 9

13 Ann. 46b-136. Furthermore, in cases involving custody, the judge may authorize such attorney or appoint another attorney to represent such... parent, guardian or other person on an appeal from a decision in such proceeding. Id. Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 5 provides: In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding.where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 25 U.S.C. 1912(b). State Court Rules and Court Decisions Interpreting Court Rules Conn. Practice Book 1998, 33a-7 provides that [a]t the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall.... [A]ll proceedings concerning uncared-for, neglected or abused children and youths within this state, termination of parental rights of children committed to a state agency, adoption proceedings pursuant to section 46b-129b, matters concerning families with service needs, contested matters involving termination of parental rights or removal of guardian transferred from the Probate Court and the emancipation of minors, but does not include matters of guardianship and adoption or matters affecting property rights of any child or youth over which the Probate Court has jurisdiction, except that appeals from probate concerning adoption, termination of parental rights and removal of a parent as guardian shall be included. Id. 46b-121(a)(1). 5 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(a) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 10

14 advise the respondents of their right to counsel and their right to have counsel assigned if they are unable to afford representation.... State Court Decisions Addressing Constitutional Due Process or Equal Protection Although the Connecticut Supreme Court has never squarely answered whether a parent has a right to counsel in a termination of parental rights proceeding, the court has implied it would apply the U. S. Supreme Court s decision in Lassiter v. Dep t of Social Services, 452 U.S. 18 (1981), on a case-by-case basis, at least where the party seeking a right to counsel gives it no reason to do otherwise. In re Jonathan M., 764 A.2d 739, 749 n.20 (Conn. 2001) (applying in dicta three factors from Mathews v. Eldridge, 424 U.S. 319 (1976) to both state and federal constitutional analysis because petitioner does not argue that the Mathews factors are not appropriate in considering whether, under the state constitution, due process requires effective assistance of counsel at termination proceedings. In the absence of any such argument, we will adhere to our prior practice and apply these factors. ). See also In re Bobby Jo S., 521 A.2d 219, 221 (Conn. App. 1987) (agreeing with Lassiter that the Due Process Clause of the Fourteenth Amendment does not always require appointment of counsel of indigent parents in termination of parental rights proceedings). B. Appointment of Counsel for Parent Privately Initiated Proceedings Conn. Stat. Ann. 45a-620 states, The Court of Probate shall appoint counsel to represent any respondent who notifies the court that he or she is unable to obtain counsel, or is unable to pay for counsel. C.G.S.A. 45a-609 adds that in the notice of hearing, Such notice shall also inform the respondent of the right to have an attorney represent the respondent in the matter, and if the respondent is unable to obtain or to pay an attorney, the respondent may request the Court of Probate to appoint an attorney to represent the respondent. It is unclear whether this right to counsel extends to guardian removal proceedings: in a petition to undo the guardianship, the parent would no longer be the respondent. So this right to counsel presumably would cover proceedings under 45a-609 (application for removal of parent as guardian) and 45a-616a (appointment of permanent guardian), but perhaps not 45a-607 (petition to remove guardian) or 45a-611 (reinstatement of parent as guardian). However, 45a-611 states that the notice issued for such a proceeding has to be done as provided in 45a-609, and 45a-609 says that the respondent (who in that instance is the parent) must be informed of their right to counsel. C. Appointment of Counsel for Child State-Initiated Proceedings 11

15 State Statutes and Court Decisions Interpreting Statutes For children in abuse/neglect proceedings, Conn. Gen. Stat. Ann. 46b-129(c) states, The preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to subsection (a) of this section shall be held in order for the court to: (2) Ensure that an attorney, and where appropriate, a separate guardian ad litem has been appointed to represent the child or youth in accordance with subsection (b) of section a and sections 46b-129a and 46b-136. Conn. Gen. Stat. Ann. 46b-136 specifies that in any proceeding in which the custody of a child is at issue, such judge shall provide an attorney to represent the child and may authorize such attorney or appoint another attorney to represent such child or youth on an appeal from a decision in such proceeding. Additionally, 46b-129a(2) adds: (A) [a] child shall be represented by counsel knowledgeable about representing such children who shall be assigned to represent the child by the office of Chief Public Defender, or appointed by the court if there is an immediate need for the appointment of counsel during a court proceeding. The court shall give the parties prior notice of such assignment or appointment. Counsel for the child shall act solely as attorney for the child. Id. 46b-129a(2)(A). (B) If a child requiring assignment of counsel in a proceeding under section 46b-129 is represented by an attorney for a minor child in an ongoing probate or family matter proceeding, the court may appoint the attorney to represent the child in the proceeding under section 46b-129, provided (i) such counsel is knowledgeable about representing such children, and (ii) the court notifies the office of Chief Public Defender of the appointment. Any child who is subject to an ongoing probate or family matters proceeding who has been appointed a guardian ad litem in such proceeding shall be assigned a separate guardian ad litem in a proceeding under section 46b-129 if it is deemed necessary pursuant to subparagraph (D) of this subdivision. (C) The primary role of any counsel for the child shall be to advocate for the child in accordance with the Rules of Professional Conduct, except that if the child is incapable of expressing the child s wishes to the child s counsel because of age or other incapacity, the counsel for the child shall advocate for the best interests of the child. (D) If the court, based on evidence before it, or counsel for the child, determines that the child cannot adequately act in his or her own best interests and the child s wishes, as determined by counsel, if followed, could lead to substantial physical, financial or other harm to the child unless protective action is taken, counsel may request and the court may order that a separate guardian ad litem be assigned for the child, in which 12

16 case the court shall either appoint a guardian ad litem to serve on a voluntary basis or notify the office of Chief Public Defender who shall assign a separate guardian ad litem for the child. The guardian ad litem shall perform an independent investigation of the case and may present at any hearing information pertinent to the court s determination of the best interests of the child. The guardian ad litem shall be subject to crossexamination upon the request of opposing counsel. The guardian ad litem is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children and relevant court procedures. If a separate guardian ad litem is assigned, the person previously serving as counsel for the child shall continue to serve as counsel for the child and a different person shall be assigned as guardian ad litem, unless the court for good cause also determines that a different person should serve as counsel for the child, in which case the court shall notify the office of Chief Public Defender who shall assign a different person as counsel for the child. No person who has served as both counsel and guardian ad litem for a child shall thereafter serve solely as the child s guardian ad litem. (E) The counsel and guardian ad litem s fees, if any, shall be paid by the office of Chief Public Defender unless the parents or guardian, or the estate of the child, are able to pay, in which case the court shall assess the rate the parent or guardian is able to pay and the office of Chief Public Defender may seek reimbursement for the costs of representation from the parents, guardian or estate of the child. See also (c) (establishing additional guidelines for attorneys appointed for children); a(a) ( The judicial authority before whom a family relations matter described in subparagraph (A) of subdivision (1) of subsection (c) of section is pending shall determine eligibility for counsel for a child or youth if they are unable to afford counsel. Upon a finding that a party is unable to afford counsel, the judicial authority shall appoint an attorney to provide representation from a list of qualified attorneys provided by the office of Chief Public Defender. ) As for children in termination of parental rights cases, the appointment of counsel is required under section 46b-136 for all children in termination proceedings ( in any proceeding in which the custody of a child is at issue, such judge shall provide an attorney to represent the child ), and additionally the appellate court s ruling in In re Christina M, 877 A.2d 941, (Conn. App. 2005) extended the statutory right to counsel for children in 46b-129a(2)(A) (which covers juvenile matters) to termination proceedings, and also held that the parents had standing to raise the question of appointed counsel on behalf of their children). In State v. Anonymous, 425 A.2d 939, 943 (Conn. 1979), the court held in a termination of parental rights case that [w]here... as here, a statute... or practice book rule... 13

17 mandates the assistance of counsel, it is implicit that this means competent counsel. Additionally, regarding compensation, 45a-717(b) states: Id. If the respondent parent is unable to pay for such respondent's own counsel or if the child or the parent or guardian of the child is unable to pay for the child's counsel, in the case of a Superior Court matter, the reasonable compensation of counsel appointed for the respondent parent or the child shall be established by, and paid from funds appropriated to, the Judicial Department and, in the case of a Probate Court matter, the reasonable compensation of counsel appointed for the respondent parent or the child shall be established by, and paid from funds appropriated to, the Judicial Department, however, in the case of a Probate Court matter, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. The judge must also appoint counsel for the the child or youth in all other juvenile matters 6 even without a request if such judge determines that the interests of justice so require. Conn. Gen. Stat. Ann. 46b-136. Furthermore, in cases involving custody, the judge may authorize such attorney or appoint another attorney to represent such... child or youth... on an appeal from a decision in such proceeding. Federal Statutes and Court Decisions Interpreting Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 7 provides the following with regard to any removal, placement, or termination of 6 Juvenile matters in the civil session are defined within the chapter to include: [A]ll proceedings concerning uncared-for, neglected or abused children and youths within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs, contested matters involving termination of parental rights or removal of guardian transferred from the Probate Court and the emancipation of minors, but does not include matters of guardianship and adoption or matters affecting property rights of any child or youth over which the Probate Court has jurisdiction, except that appeals from probate concerning adoption, termination of parental rights and removal of a parent as guardian shall be included. Id. 46b-121(a)(1). 7 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(b) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the 14

18 parental rights proceeding: The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to the Act of November 2, 1921 (42 Stat. 208; 25 U.S.C. 13). 25 U.S.C. 1912(b). The federal Child Abuse Prevention and Treatment Act (CAPTA) provides: A State plan submitted under paragraph (1) shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including (B) an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes-- (xiii) provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings. 42 U.S.C. 5106a(b)(2). State Court Decisions Addressing Constitutional Due Process or Equal Protection In In re Christina M., 908 A.2d 1073 (Conn. 2006), the court declined to determine whether a child s right to counsel in a termination of parental rights proceeding is constitutionally based, owing to the fact that it could detect no conflict between the child s wishes and the guardian in the instant case. D. Appointment of Counsel for Child Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 15

19 As to the right to counsel for children in adoptions, Conn. Gen. Stat. Ann. 45a-717(b) specifies that [u]nless the appointment of counsel is required under section 46b-136, the court may appoint counsel to represent or appear on behalf of any child in a hearing held under this section to speak on behalf of the best interests of the child. Since 46b-136 applies only to juvenile matters (which apparently would not include adoptions), appointment of counsel for the child is on a discretionary basis. During a proceeding involving the dissolution of marriage, legal separation, or annulment of a minor child s parents or guardians: (a) The court may appoint counsel or a guardian ad litem for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel or a guardian ad litem on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request. (b) Counsel or a guardian ad litem for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child. (c) In the absence of an agreement of the parties to the appointment of counsel or a guardian ad litem for a minor child in the parties matter and a canvassing by the court concerning the terms of such agreement, the court shall only appoint such counsel or guardian ad litem under this section when, in the court s discretion, reasonable options and efforts to resolve a dispute of the parties concerning the custody, care, education, visitation or support of a minor child have been made. (d) If the court deems the appointment of counsel or a guardian ad litem for any minor child or children to be in the best interests of the child or children, such appointment shall be made in accordance with the provisions of section 46b-12. Conn. Gen. Stat. Ann. 46b-54(a)-(b). The high court has said that "in the absence of strong countervailing considerations such as physical urgency or financial stringency, the better course is to appoint independent counsel whenever the issue of child custody is seriously contested." Yontef v. Yontef, 185 Conn. 275, 284; 440 A.2d 899, 904 (Conn. 1981). 16

20 The Connecticut Supreme Court has further interpreted 46b-54, stating, [t]he appointment of counsel lies firmly within the trial court's discretion in the best interests of the child.... The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child's interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. Fennelly v. Norton, 294 Conn. 484, 508 (2010), quoting Schult v. Schult, 241 Conn. 767, 778 (1997). However, it has also said that courts have the power to appoint counsel for children sua sponte pursuant to this statute, and that in the absence of strong countervailing considerations such as physical urgency or financial stringency, the better course is to appoint independent counsel whenever the issue of child custody is seriously contested. Yontef v. Yontef, 185 Conn. 275, 284; 440 A.2d 899, 905 (Conn. 1981). See also Lambert v. Donahue, 827 A.2d 729, 737 (Conn. App. 2003) ( [T]he failure of the court to appoint an attorney [generally is] not such a clear abuse of discretion that [a party] would be entitled to reversal on that ground ); Payton v. Payton, 930 A.2d 802, 805 (Conn. App. Ct. 2007) (court appointed attorney as GAL rather than as advocate; [T]he evidence does not reflect that the parties were indifferent to the impact that the custody determination would have on their child, which would have suggested that the child needed an appointed advocate to ensure the protection of her interests. In light of the court's reasons for not appointing counsel for the child and the fact that neither party made such a request, we are not persuaded that the court improperly exercised its discretion in this regard. ) A court cannot appoint an attorney for minor children in an attorney fees dispute if the underlying family law action has been dismissed or is no longer pending. Fennelly, 294 Conn. at 487. In Fennelly, the trial court appointed an attorney for minor children in a dispute over attorney s fees brought after the paternal grandparents of the minor children lost an appeal for visitation rights and were ordered to pay both the mother s and 90% of the children s attorney s fees. Id. The court stated that it was an abuse of discretion for a trial court to appoint an attorney for minor children in a situation in which the minor children had nothing more than a tangential interest in the result of the attorney's fee proceeding, and no other matters relating directly to their support, custody and visitation were at issue. Id. at For guardianships of children, Conn. Stat. Ann. 45a-620 states: The Court of Probate may appoint counsel to represent or appear on behalf of any minor in proceedings brought under sections 45a-603 to 45a-622, inclusive, and sections 45a-715 to 45a-717, inclusive. In any proceeding in which abuse or neglect, as defined in section 46b-120, is alleged by the applicant, or reasonably suspected by the court, a minor shall be represented by counsel appointed by the court to represent the minor. In all cases in which the court deems appropriate, the court shall also appoint a person, other than the person appointed to represent the minor, as guardian ad litem for such 17

21 minor to speak on behalf of the best interests of the minor, which guardian ad litem is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. The Court of Probate shall appoint counsel to represent any respondent who notifies the court that he or she is unable to obtain counsel, or is unable to pay for counsel. The cost of such counsel shall be paid by the person whom he or she represents, except that if such person is unable to pay for such counsel and files an affidavit with the court demonstrating his or her inability to pay, the reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. In the case of a minor, such affidavit may be filed by a suitable person having knowledge of the financial status of such minor. C.G.S.A. 45a-609(b) adds that in the notice of hearing, Such notice shall also inform the respondent of the right to have an attorney represent the respondent in the matter, and if the respondent is unable to obtain or to pay an attorney, the respondent may request the Court of Probate to appoint an attorney to represent the respondent. It is unclear whether this right would extend to reviews of the guardianship MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes Conn. Gen. Stat. Ann. 46b-231(m)(7) provides: [I[f the family support magistrate determines that incarceration of an obligor for failure to obey a support order may be indicated, the family support magistrate shall inform the obligor of his right to be represented by an attorney and his right to a courtappointed attorney to represent him if he is indigent. If the obligor claims he is indigent and desires an attorney to represent him, the family support magistrate shall conduct a 8 Conn. Stat. 45a-620 states, "The Court of Probate shall appoint counsel to represent any respondent who notifies the court that he or she is unable to obtain counsel, or is unable to pay for counsel. Notice the word respondent : in a petition to undo the guardianship, the parent would no longer be the respondent. So this right to counsel presumably would cover proceedings under 45a-609 (application for removal of parent as guardian) and 45a-616a (appointment of permanent guardian), but not 45a-607 (petition to remove guardian) or 45a- 611 (reinstatement of parent as guardian). However, 45a-611 states that the notice issued for such a proceeding has to be done as provided in 45a-609, and 45a-609 says that the respondent (who in that instance is the parent) must be informed of their right to counsel. 18