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In re Taijha H.-B.

Supreme Court of Connecticut

September 27, 2019

IN RE TAIJHA H.-B. [*]

          Argued January 22, 2019

         Procedural History

         Petition by the Commissioner of Children and Families to terminate the respondents’ parental rights as to their minor child, brought to the Superior Court in the judicial district of New Haven, Juvenile Matters, and tried to the court, Marcus, J.; judgment terminating the respondents’ parental rights, from which the respondent mother appealed to the Appellate Court; thereafter, the court, Burke, J., granted the motion to withdraw filed by the respondent mother’s counsel; subsequently, the respondent mother amended her appeal, and the Appellate Court dismissed the amended appeal; thereafter, the respondent mother, on the granting of certification, appealed to this court. Reversed; further proceedings.

          James P. Sexton, assigned counsel, with whom were Megan L. Wade, assigned counsel, and, on the brief, Emily Graner Sexton, assigned counsel, for the appellant (respondent mother).

          John E. Tucker, assistant attorney general, with whom, on the brief, were George Jepsen, former attorney general, Benjamin Zivyon and Jessica Gauvin, assistant attorneys general, and Hannah Kalichman, certified legal intern, for the appellee (petitioner).

          Joshua Michtom, assistant public defender, Jay Sicklick and Dan Barrett filed a brief for the Office of the Chief Public Defender et al. as amici curiae.

          Chris Oakley, Bet Gailor, Ellen Morgan, Douglas Monaghan, Katherine Dornelas and Benjamin Watten-maker filed a brief for the Child Welfare and Juvenile Law Section of the Connecticut Bar Association as ami-cus curiae.

          Palmer, McDonald, Mullins, Kahn and Ecker, Js.

          OPINION

          PALMER, J.

         Under Practice Book § 79a-3, [1] in a case involving the termination of parental rights in which the attorney appointed to represent an indigent party in the trial court declines to pursue an appeal, that party may seek the appointment of an appellate review attorney who, after reviewing the case and determining that there is a legitimate basis for an appeal, is required to represent the party on appeal. The principal issue presented by this certified appeal is whether an appellate review attorney appointed to represent an indigent parent in an appeal from the termination of his or her parental rights must follow the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), before being permitted to withdraw from representation on the ground that he or she is unable to identify any nonfrivolous basis for appeal.[2] We hold that when, as in the present case, the circumstances are such that the indigent parent has a constitutional right to appellate counsel, counsel may not be permitted to withdraw without, first, demonstrating, whether in the form of an Anders brief or in the context of a hearing, that the record has been thoroughly reviewed for potential meritorious issues, and, second, taking steps sufficient to facilitate review of the case, by the indigent parent and the presiding court, for the purpose of a determination as to whether the attorney accurately concluded that any appeal would be meritless.

         In 2015, the petitioner, the Commissioner of Children and Families, filed a petition to terminate the parental rights of the natural parents of then six year old Taijha H.-B.: her mother, Sonya B., the respondent, and her father, Harold H.[3] After the trial court granted the petition and rendered judgment thereon, the Office of the Chief Public Defender appointed counsel for the respondent, who is indigent, to review the matter for a possible appeal as required by Practice Book § 79a-3 (c). Counsel filed a timely appeal but subsequently filed motions in both the trial court and the Appellate Court to withdraw his appearance for want of a nonfrivolous issue on which to proceed. The trial court granted counsel’s motion to withdraw, accepting counsel’s representation that the appeal was without merit. Counsel subsequently amended the respondent’s appeal, adding a claim that the trial court should not have permitted him to withdraw without first requiring him to comply with Anders. The Appellate Court, acting on its own motion, dismissed the amended appeal on the following two independent grounds: (1) the amended appeal was not properly filed pursuant to § 79a-3 (c), which, in the view of that court, does not permit an appellate review attorney to file an appeal without first having determined that there is merit to the appeal; and (2) the briefing procedure set forth in Anders is not applicable to the withdrawal of an appellate review attorney in a child protection proceeding. We granted certification to appeal with respect to both issues. In re Taijha H.-B., 329 Conn. 914, 187 A.3d 423 (2018). Because we agree with the respondent that, under the circumstances of this case, her amended appeal was not improperly filed and also that the appellate review attorney should not have been permitted to withdraw without first assisting the trial court in conducting a review of the case, we reverse the judgment of the Appellate Court. We reject, however, the respondent’s additional claim that § 79a-3 (c), on its face, violates the equal protection clause of the fourteenth amendment to the United States constitution.

         I

         The record reveals the following relevant facts, as found by the trial court or that are undisputed, and procedural history. The child at the center of this dispute, Taijha, was born to the respondent and Harold H. in November, 2008. The Department of Children and Families was involved with Taijha from the outset due to the respondent’s admitted use of illegal substances during pregnancy.

         In 2014, the commissioner filed a neglect petition and requested an order of temporary custody, both of which were granted. The trial court subsequently approved permanency plans of termination of the respondent’s and Harold H.’s parental rights, and adoption. In October, 2015, the commissioner filed a petition for termination of parental rights.

         In 2017, following a trial that included medical testimony by two expert witnesses, the court, Marcus, J., granted the petition, terminating the parental rights of the respondent and Harold H. Among other things, the court found, by clear and convincing evidence, that the respondent had an extensive mental health history with a diagnosis of psychotic disorder; a history of selling and abusing illicit substances, primarily marijuana and phencyclidine (PCP); a significant criminal history, including multiple arrests and incarcerations during Taijha’s life; a history of hostile and violent conduct toward both Taijha and others; and an inability to focus on, prioritize, and meet Taijha’s emotional needs. At the time of trial, the respondent was again incarcerated, this time for charges involving an alleged armed robbery.

         The court further found that the respondent had failed to follow through in obtaining numerous services recommended or facilitated by the department. These include services relating to domestic violence prevention, substance abuse testing and treatment, parenting skills, and mental health assessment and treatment. As a result of this history and other issues involving Harold H., including incidents of domestic violence between the respondent and Harold H. in Taijha’s presence, there had been seven neglect substantiations involving Taijha, and Taijha was removed from her mother’s care and placed with relative and nonrelative foster parents at various times. On two occasions, the respondent abducted Taijha during periods when she did not have custody of her.

         Ultimately, the court concluded, consistent with the expert medical testimony, that the respondent was unable or unwilling to benefit from the various efforts the department had made to reunify her with Taijha and that she had failed to rehabilitate. These findings largely reflected the respondent’s frequent incarceration, her lack of stable housing and employment, and, above all, the serious, deteriorating mental health problems that she refused to address. The court also found that, although Taijha has an emotional bond with the respondent, their relationship and the attendant instability had a negative impact on Taijha, on balance, and that Taijha, who was eight years old at that time, expressed a preference to live with her foster parents, whom she identified as her family and who, the court further found, provide a ‘‘safe, secure and reliable’’ home.

         The following additional procedural history, which transpired after the trial court terminated the parental rights of the respondent and Harold H., is the primary subject of the present appeal. The court granted the petition to terminate the parental rights of the respondent and Harold H. on September 25, 2017. On October 13, 2017, the Office of the Chief Public Defender appointed Attorney James Sexton to review the case for potential grounds for appeal. After Sexton sought and was granted the single extension of time that is permitted under the rules of practice; see Practice Book § 79a-2; the final deadline for the respondent to appeal from the judgment of termination would have been November 6, 2017.

         Although Sexton timely requested and received transcripts of the trial court proceedings, his review of the initial set of transcripts revealed that they were incomplete. Because the court reporter was unable to provide a complete set of transcripts for review prior to the deadline for filing an appeal, and Sexton, therefore, was unable to fully review the case file for potential appealable issues, he proceeded to file an appeal on behalf of the respondent on November 6, 2017, in order to preserve her appellate rights.

         On November 15, 2017, Sexton received the full set of transcripts, completed his review of the case, and advised the respondent that he would be unable to represent her on appeal for lack of any nonfrivolous issue on which to proceed. Sexton then filed motions to withdraw his appearances with the Appellate Court and the trial court. See Practice Book § 3-10.[4] The Appellate Court denied the motion without prejudice, pending resolution of the matter in the trial court.

         The trial court, Burke, J., conducted a hearing on the motion to withdraw, during which Sexton represented that, upon a full review of the record, he was unable to identify any nonfrivolous ground for appeal. Sexton further represented that he had explained this conclusion to the respondent and to her guardian ad litem, and had advised them as to the respondent’s options and her rights should she choose to proceed on a self-represented basis or to hire alternative counsel. The trial court, raising sua sponte the question of whether replacement counsel must be appointed if Sexton were permitted to withdraw, scheduled a second hearing and asked the parties to brief that question.

         In his brief to the trial court, Sexton argued not only that due process might require the appointment of replacement counsel for the respondent, but also that Sexton himself should not be permitted to withdraw without first having complied with the Anders requirements. Following a second hearing, the trial court granted Sexton’s motion to withdraw without requiring the filing of an Anders brief or conducting its own independent review to determine whether any appeal would be frivolous. Sexton then amended the respondent’s appeal to include the issue of whether the court should have allowed him to withdraw without utilizing the Anders procedure.

         Before the amended appeal had been briefed, the Appellate Court, sua sponte, ordered the parties to appear and give reason why that appeal should not be dismissed because (1) ‘‘the appeal was not properly filed pursuant to [Practice Book] § 79a-3 (c), ’’ and (2) ‘‘the procedure set forth in Anders . . . is not applicable to the withdrawal of an appellate review attorney in child protection proceedings.’’ Following argument on the motion, the Appellate Court dismissed the amended appeal for both of those reasons.

         This certified appeal followed. Additional facts will be set forth as necessary.

         II

         We first consider whether the Appellate Court properly dismissed the respondent’s amended appeal for failure to comply with Practice Book § 79a-3 (c). The respondent contends, and we agree, that the rule does not envisionoraccount for the unique scenario involved in the present case. For that reason, her appeal should not have been dismissed on procedural grounds.[5]

         In its order dismissing the respondent’s amended appeal, the Appellate Court stated that ‘‘the appeal was not properly filed pursuant to [Practice Book] § 79a-3 (c).’’[6] That rule establishes the following procedure by which an indigent party, who wishes to appeal from a termination of parental rights but whose appointed trial counsel declines to pursue the appeal, may obtain review by the Division of Public Defender Services: ‘‘If the appellate review attorney determines that there is merit to an appeal, that attorney shall file the appeal in accordance with [Practice Book §] 63-3.’’ Practice Book § 79a-3 (c) (1). Furthermore, ‘‘[i]f the reviewing attorney determines that there is no merit to an appeal, that attorney shall make this decision known to the judicial authority, to the party and to the Division of Public Defender Services at the earliest possible moment. The reviewing attorney shall inform the party, by letter, of the balance of the time remaining to appeal as a self-represented party or to secure counsel who may file an appearance to represent the party on appeal at the party’s own expense.’’ Practice Book § 79a-3 (c) (2).

         On its face, the rule envisions and addresses only two possibilities. If the appellate review attorney completes a review of the case prior to the deadline for filing an appeal and determines that there is merit, then that attorney is directed to file an appearance in the Appellate Court; see Practice Book § 35a-21 (b); and to file the appeal on behalf of the indigent party. If a timely review fails to reveal any merit, then the participation of the appellate review attorney is limited to advising the party thereof. The party then has the option of filing an appeal on a self-represented basis or obtaining private counsel. Both prongs of the rule thus assume that the reviewing attorney is capable of completing a full review of the case prior to the filing deadline.

         In the vast majority of cases, a diligent attorney will be able to complete this review within the appeal period. In the present case, however, it is undisputed that, through no fault of his own, Sexton was unable to review the case fully prior to the filing deadline. Facing a dilemma in which he was unable to comply with either Practice Book § 79a-3 (c) (1) (by filing an appeal that he had determined to have potential merit) or § 79a-3 (c) (2) (by informing the respondent prior to the filing deadline that, in his estimation, there was no nonfrivolous ground for appeal), and lacking any guidance from the rules of practice, Sexton prudently opted to file the appeal, in order to preserve the respondent’s rights, prior to making a final merits determination.

         The commissioner contends that the better option would have been for Sexton to file a motion in the Appellate Court to suspend the rules; see Practice Book § 60-3; to allow an additional extension of time to obtain the missing portions of the trial record. We do not disagree that this option is available, and perhaps even preferable, as we have little doubt that such a motion would have been granted under the circumstances.[7]

         The issue before us, however, is whether the rules categorically prohibit an appellate review attorney from filing a timely appeal, prior to completing a full merits review, even under the unique circumstances of this case.[8] In addressing this issue, we are mindful of the ‘‘long recognized presumption in favor of appellate jurisdiction’’; Seebeck v. State, 246 Conn. 514, 533, 717 A.2d 1161 (1998); and also that the rules of practice are to be construed liberally, rather than narrowly and technically, in order to facilitate judicial business and to advance justice. See Practice Book §§ 1-8 and 60-1; see also 3A S. Singer, Sutherland Statutes and Statutory Construction (8th Ed. 2018) § 67:10, pp. 404–406 (‘‘Courts usually favor a party’s right of appeal and construe statutes and rules to protect that prerogative . . . . The essential policy animating this broad judicial approach is . . . that courts should consider cases on their merits and in terms of a party’s substantive rights and not defeat them on mere technicalities.’’).

         The primary argument in favor of the Appellate Court’s reading of Practice Book § 79a-3 (c) would seem to be a prohibition by negative implication. It is well established that ‘‘[a] statute that prescribes that a thing should be done in a particular way, carries with it an implied prohibition against doing it in any other way . . . .’’ New Haven v. Whitney, 36 Conn. 373, 375 (1870). From the fact that the rule requires a reviewing attorney to file an appeal after having found potential merit, the Appellate Court apparently drew a negative implication that the attorney may not file the appeal prior to having made such a finding.

         The principle of prohibition by negative implication, however, applies most directly in situations in which a statute or rule confers enumerated powers. See State v. White, 204 Conn. 410, 424, 528 A.2d 811 (1987). ‘‘But when the power to do a thing exists and may be exercised according to the usual methods of law or equity, and the statute is only by way of regulation or enlargement of the power, then there can be no implied prohibition of the power, or to the way it is to be enforced.’’ Johnston v. Allis, 71 Conn. 207, 217, 41 A. 816 (1898); see also 3A S. Singer, supra, § 69:13, pp. 933–34 (with respect to termination of parental rights statutes, purely procedural language that is neither prohibitory nor jurisdictional is usually directory rather than mandatory).

         The rules of practice permit an indigent parent, like any other party, to file an appeal without first having conducted a full review of the record and having made a formal determination of merit. See Practice Book § 63-4 (a) (1). Section 79a-3 (c) does not purport to authorize the taking of an appeal by an indigent party but, rather, merely dictates the procedure by which an appointed appellate review attorney is to engage and assist in the process. Accordingly, we do not read that rule as mandating the dismissal of an indigent party’s appeal when, as under the unusual circumstances of this case, full review for merit was not possible prior to the filing deadline.

         III

         We next turn our attention to the respondent’s claim that Practice Book § 79a-3, on its face, violates the equal protection clause of the federal constitution. Specifically, she argues that the rule imposes a different, higher legal burden on appeals brought by indigent litigants who have been assigned counsel than on litigants who have the financial means to hire private counsel. We are not persuaded.[9]

         We begin by setting forth the governing law. ‘‘[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. . . . Conversely, the equal protection clause places no restrictions on the state’s authority to treat dissimilar persons in a dissimilar manner. . . . Thus, [t]o implicate the equal protection [clause] . . . it is necessary that the state statute [or rule] . . . in question, either on its face or in practice, treat persons standing in the same relation to it differently. . . . [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated. . . . [T]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. . . .

         ‘‘This court has held, in accordance with the federal constitutional framework of analysis, that in areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights, the [e]qual [p]rotection [c]lause is satisfied [as] long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental [decision maker] . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . . . If, however, state action invidiously discriminates against a suspect class or affects a fundamental right, the action passes constitutional muster . . . only if it survives strict scrutiny. . . . Under that heightened standard, the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest.’’[10] (Citations omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157–59, 957 A.2d 407 (2008).

         In the present case, the respondent’s equal protection argument proceeds as follows. First, she argues that indigent parents such as herself and nonindigent parents with the means to hire private counsel are similarly situated with regard to appeals from parental rights termination orders.

         Second, she argues that Practice Book § 79a-3 treats those similarly situated classes differently. She contends that, whereas § 79a-3 permits assigned counsel to take an appeal on behalf of an indigent client only if the attorney believes that the appeal is meritorious; see Practice Book § 79a-3 (c); a privately retained attorney may, consistent with the Rules of Professional Conduct, take an appeal from a termination order, as long as the appeal is not frivolous. See Rules of Professional Conduct 3.1. The respondent argues that, in essence, § 79a-3 (c) imposes a more restrictive bar than does rule 3.1, because there is a category of appellate claims that lack merit but that nevertheless are not frivolous. For example, there might be a case in which the only colorable basis for appeal is to invite an appellate tribunal to revisit a rule of law that had been upheld in the face of previous challenges. The respondent’s argument appears to be that such an appeal would lack merit, because there would be little if any chance that the appellant would prevail, but it would not constitute a frivolous appeal for purposes of rule 3.1, because it would rest on a good faith argument for the reversal of existing law.

         Third, the respondent argues that, because natural parents have a fundamental liberty interest in the care, custody, and management of their children; e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); the alleged disparity created by Practice Book § 79a-3 will pass constitutional muster only if it can survive strict scrutiny. She suggests that no compelling state interest justifies the alleged disparity created by the rule.

         We assume without deciding that the first and third premises of the respondent’s argument are true: indigent and nonindigent parents are similarly situated with respect to their right to appeal from termination orders and, because fundamental familial rights are implicated, any disparate treatment would be subject to strict scrutiny. Nevertheless, we conclude that the argument fails because the second premise is false. Section 79a-3 does not impose a different, higher standard for bringing an appeal than does rule 3.1.

         Under rule 3.1 of the Rules of Professional Conduct, ‘‘[an] action is frivolous . . . if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.’’ Rules of Professional Conduct 3.1, commentary. The notion of a meritorious appeal, by contrast, is nowhere defined in the Practice Book. Although common usage might support the respondent’s argument that a meritorious appeal is one that enjoys a reasonable possibility of success, [11] so that an appeal brought in good faith but ...


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