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In re Ceana R.

Court of Appeals of Connecticut

October 26, 2017

IN RE CEANA R. ET AL.[*]

          Argued September 7, 2017

          John C. Drapp III, assigned counsel, for the appellant (respondent father).

          Daniel M. Salton, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

          Alvord, Kahn and Bear, Js.

         Syllabus

         The respondent father appealed to this court from the judgments of the trial court adjudicating his minor children abused and neglected. Three of the father's previously appointed attorneys were permitted to withdraw as counsel. Prior to approving the appointment of a fourth attorney, the trial court warned the father that if that attorney was later permitted to withdraw, he would not be appointed a fifth attorney and he would have to represent himself or hire outside counsel. During a subsequent hearing, the court approved the appointment of the father's fourth attorney, C, and issued the same warning to the father. A couple weeks after being appointed as counsel for the father, C filed a motion to withdraw her appearance, stating that it was impossible to establish an attorney-client relationship given the father's unreasonable demands, and the motion was denied by the trial court. During the hearing on C's motion, as well as during a subsequent hearing, the father was again warned by the court that he should not expect the appointment of a fifth attorney if C withdrew as counsel. On the first day of trial, the father advised the court that he had filed a grievance against C and requested permission for C to withdraw as counsel, which was denied by the court. Upon a request for reconsideration by C, however, the court permitted C to withdraw as counsel, stating that it considered the filing of the father's grievance as an act terminating C's representation. Thereafter, the court concluded that the father had knowingly and voluntarily waived his right to appointed counsel by his conduct, and it declined to continue the trial to another date. After the father subsequently failed to appear on a set trial date, the trial court entered a default against the respondent father and adjudicated the minor children abused and neglected. This appeal followed. Held:

         1. The trial court did not abuse its discretion in permitting C to withdraw as counsel, as the court properly determined that a de facto termination of the attorney-client relationship occurred based on the respondent father's filing of a grievance against C in the juvenile proceeding: a parent has a statutory, not constitutional, right to appointed counsel in abuse and neglect proceedings, and the record demonstrated that the relationship between the father and C had been the subject of a motion to withdraw filed by C before trial commenced, that the father had inquired of the court whether he would be permitted to release C from representing him if some misconduct had occurred, and that, after learning of the grievance filed by the father, the court asked for a copy of the grievance, inquired at length as to why the father believed that C had violated her professional responsibilities, and asked C whether she could continue to represent the father, to which C replied that she could not; furthermore, given that the father had been warned numerous times that he would not be appointed a fifth attorney if C was permitted to withdraw, the court did not abuse its discretion by failing to issue another warning to that effect or in permitting C to withdrawn from representing the father.

         2. The trial court did not abuse its discretion in finding that the respondent father had waived his statutory right to appointed counsel by his conduct; the father previously had been appointed four attorneys, all of whom were removed from the case due to an attorney-client conflict, the father requested that C be removed despite repeated warnings from the court that it would not provide him with a fifth attorney, he was aware that the withdrawal of C would mean that he would represent himself, as he had been expressly informed of that consequence by two different judges on at least four previous occasions, and he had a general understanding of legal proceedings and indicated that he understood the hazards associated with representing himself.

         Procedural History

         Petitions by the Commissioner of Children and Families to adjudicate the respondents' minor children neglected, brought to the Superior Court in the judicial district of New Britain, Juvenile Matters, where the court, Frazzini, J., granted the motion of the respondent father's appointed counsel to withdraw representation; thereafter, the matter was tried to the court; judgments adjudicating the minor children neglected, from which the respondent father appealed to this court. Affirmed.

          OPINION

          ALVORD, J.

         In this appeal, we are called upon to determine whether a parent in a neglect and abuse proceeding de facto terminated his court-appointed lawyer and whether that parent waived by his conduct his right to a fifth appointed lawyer. The respondent father, Pablo R., appeals from the judgments of the trial court finding that his two daughters, C.R.[1] and A.R., were neglected and abused.[2] On appeal, the respondent claims that the court abused its discretion in (1) permitting his appointed counsel to withdraw and (2) finding that he had waived his right to appointed counsel by conduct.[3] We affirm the judgments of the trial court.

         The record discloses the following procedural history. In March, 2016, the petitioner, the Commissioner of Children and Families (commissioner), filed two motions for temporary custody and two neglect petitions, one for each of the respondent's children, C.R. and A.R. The petitions alleged that C.R. and A.R. were neglected and abused.[4]

         Attorney Roger Chiasson was appointed to represent the respondent as his counsel and filed an appearance on March 10, 2016. Six weeks later, Attorney Chiasson filed a motion to withdraw his appearance, representing that the attorney-client relationship had broken down in that the respondent had sought advice from another attorney and had expressed that he was not happy with the advice and counsel being given by Attorney Chiasson. The court, Frazzini, J., heard argument on the motion on May 11. Attorney Chiasson represented that the respondent had engaged in conversations with other lawyers, and, based on those conversations, had expressed to others that Attorney Chiasson may have been misleading him. The respondent objected to the withdrawal and claimed that this was the first time he was hearing of Attorney Chiasson's dissatisfaction with the relationship. The respondent claimed that he had spoken to other people for advice but denied that he had discussed legal matters. The court granted the motion and ordered that new counsel be appointed.

         Attorney Elizabeth Potts Berman was appointed as the respondent's second counsel.[5] Shortly thereafter, Attorney Berman filed a motion to withdraw her appearance, representing that the attorney-client relationship had broken down irretrievably. During argument on July 20, the respondent objected to the withdrawal and again represented to the court that this was the first time he was hearing that ‘‘this relationship had any problem.'' The court, Abery-Wetstone, J., granted the motion to withdraw and ordered that new counsel be appointed. However, Attorney Christine Rapillo from the Office of Public Defender informed the court that ‘‘because a number of the lawyers from New Britain have covered the case . . . we may have to look outside the New Britain panel to get someone . . . .''[6]

         Attorney Joshua Michtom, an employee of the public defender's office, was appointed as the respondent's third counsel and filed his appearance on July 27, 2016. Less than two weeks later, on August 5, Attorney Michtom filed a motion to withdraw his appearance, in which he represented that the respondent had yelled at him after he refused to file certain motions that he deemed frivolous, unethical, and counterproductive. Attorney Michtom further represented that the respondent had registered a formal complaint against him with the Office of the Chief Public Defender and had indicated that he would like Attorney Michtom to withdraw on the basis that communication had broken down. Lastly, Attorney Michtom expressed a willingness to continue to represent the respondent, but noted that communication in the future might be impossible based on the respondent's ‘‘having indicated unequivocally'' that he desired Attorney Michtom to withdraw. During a hearing on the motion on August 18, the respondent asserted a number of reasons in support of the request to withdraw, including that Attorney Michtom had been dishonest to the court and to the respondent, and that Attorney Michtom had represented him ‘‘without any understanding of the case.'' Attorney Rapillo again appeared, stating that there were no panel attorneys left in New Britain, and that the public defender's office could not, under its contracts with individual attorneys, require an attorney to accept an appointment in another jurisdiction. The court, Abery-Wetstone, J., requested that the public defender's office appoint another attorney for the respondent.

         The court then issued the following warning to the respondent: ‘‘You understand . . . this is your last chance. If you have a fight with the next attorney, you're not going to be able to get one.'' The court further cautioned: ‘‘Understand this is it. We don't have anybody else. You'll get one more lawyer. . . . If you have a disagreement with this next lawyer or this next lawyer feels abused or maligned by you, then you're going to have to represent yourself.'' The court instructed the parties to return on September 1, 2016, and stated that ‘‘I would like Mr. [R.] and new counsel here, because if he doesn't get new counsel, he's going to be instructed that he either has to file a pro se appearance or he has to hire counsel on his own.''

         Prior to September 1, 2016, Attorney Trudy Condio, a panel attorney from the Hartford Juvenile Court, was contacted by the public defender's office regarding appointment as the respondent's fourth counsel. At the hearing on September 1, which Attorney Condio had previously stated that she could not attend, the respondent indicated that he had not yet made a decision as to whether he wished to be represented by Attorney Condio, that he had been trying to set up a meeting with her, and that she did not have a copy of the file yet. The court, Abery-Wetstone, J., approved the appointment of Attorney Condio, stating that unless the court received a motion to withdraw from Attorney Condio, she would represent the respondent. The court warned that Attorney Rapillo ‘‘indicated that she was going to have a hard time replacing Attorney Michtom and she has provided counsel for Mr. [R.]. If you are dissatisfied with Ms. Condio . . . you are going to have to either file a pro se appearance indicating you're going to represent yourself or you're going to have to hire private counsel, because Ms. Rapillo represented to the court that she had no one else and this was the last person, if even she could get Ms. Condio.''[7]

         On September 16, 2016, Attorney Condio filed a motion for continuance and a motion to withdraw her appearance stating that it was impossible to establish an attorney-client relationship based on the respondent's unreasonable demands. Attorney Condio represented that although she had communicated with the respondent on four occasions, the respondent refused to meet with her before 5 p.m. and refused to meet with her without a third party present. Moreover, she claimed that the respondent insisted on meeting at his home.

         On September 21, 2016, the court, Abery-Wetstone, J., heard argument on Attorney Condio's motions. With respect to the respondent's insistence on a third party being present during attorney-client meetings, the respondent explained that he always had a third party present for his protection during his meetings with previous counsel and that he wanted to waive the attorney-client privilege. He also informed the court that he had a third party monitoring phone conversations ‘‘so there wouldn't be any issue of the he said/she said . . . .'' Regarding the respondent's unwillingness to meet before 5 p.m., the respondent stated that although he was unemployed, he was busy with other personal, medical responsibilities that prevented him from meeting with Attorney Condio during business hours. The court ordered the respondent to meet with Attorney Condio with no one else present, between the hours of 9 a.m. and 5 p.m. on weekdays, and denied the motions for continuance and to withdraw.[8] After further argument, the court asked the respondent: ‘‘Mr. [R.], do you wish to keep this attorney or do you wish to represent yourself?'' The court further inquired of the respondent whether he understood the potential danger of representing himself while his application for accelerated rehabilitation was pending in criminal court, to which the respondent replied, ‘‘Yes, I-that's why I told the court back in September 1, 2016, that I was not qualified to represent myself . . . .'' The court then reminded the respondent that he previously had been warned: ‘‘If you couldn't get along with [Attorney Condio], you were going to have represent yourself because I'm not going to give you a fifth attorney.''

         Both parents were before the court for a hearing on October 14, 2016. On that date, the court, Frazzini, J., permitted the mother's counsel to withdraw from representation based on the mother's filing of a grievance against that lawyer. The court rescheduled the trial, and addressed the respondent and the mother: ‘‘I'm telling you both right now, don't expect or believe that if you obtain a new lawyer by hiring them, or if you-if your lawyer seeks to withdraw, that a new lawyer would be appointed for you. Do not anticipate that; do not expect that. It would not happen.'' The respondent asked: ‘‘So Your Honor, so if we have an issue with misconduct or some issue that the lawyer violates Connecticut statute that we won't be allowed to obtain a new lawyer-a counsel? Is that my understanding?''[9]The court, stating that the respondent had a legal right to file a grievance, asked the respondent to present the grievance to the court first so the court could review the situation and determine whether the facts showed that the attorney had committed an act or failure to act that would necessitate withdrawal.

         On the first day of trial, November 28, 2016, the respondent advised the court, Frazzini, J., that he had filed a grievance against Attorney Condio because of failed communication and a lack of representation and stated: ‘‘I don't think it's appropriate that Ms. Condio now go forward in representing me or my-or my best interests . . . .'' After hearing argument from the respondent and Attorney Condio, both advocating for withdrawal, the court stated that it had not found exceptional circumstances to justify discharging counsel at the last minute, which would cause a delay in trial, and ordered that evidence proceed. Attorney Condio noted further objection, and trial commenced. After the testimony of the first witness, Attorney Condio orally moved the court to reconsider, stating that the public defender's office had expressed concern that her continued representation could create further liability. Counsel for the Department of Children and Families (department) and counsel for the children both agreed that Attorney Condio ...


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