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Connecticut[1] [print]

Last edited: October 2005

 

Summary and Analysis

 

In any juvenile matters proceeding where the custody of a child is at issue, the judge must appoint an attorney to represent the child, but the statute does not specify exactly what role the attorney should play. In abuse and neglect cases, the judge must appoint an attorney to serve as the child's counsel and guardian ad litem.  This provision for dual representation was added to the statute in 2001, after being removed in 1996.  Under the current statute, a lawyer must represent the child's wishes and best interests unless and until there is a conflict between the child's wishes and best interests, at which time the court should appoint a separate guardian ad litem.  The statute does specify, however, that “[t]he primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct.”  Conn. Gen. Stat. § 46b-129a. The Connecticut Court of Appeals has clarified that there is a difference between the role of the attorney and the guardian ad litem, but there is still confusion about the precise contours of the separate roles, as well as the role of the dual representative.

 

Training/Quality of Representation

In a June 2005 Special Session of the Connecticut General Assembly, Bill 6871 “An Act Concerning the Quality of Legal Representation in Child Protection Proceedings” was passed.  (The Act has not yet been codified but is cited below as part of the 2005 Conn. Legis. Serv. 05-3 (West).)

 

The Act created a Commission on Child Protection and Chief Child Protection Attorney, to responsible for establishing a “system for the provision of…legal services and guardians ad litem to children and indigent parents in proceedings before the superior court for juvenile matters....”  2005 Legis. Serv. 05-3 § 45(1) (West).  The goals of the new Child Protection Commission include avoiding conflicts of interest (§ 45(2)), providing training for attorneys, and establishing “practice and caseload standards for the representation of children and indigent parents.”  § 45(3).  The training “shall be designed to ensure proficiency in the procedural and substantive law . . . and to establish a minimum level of proficiency in relevant subject areas, including, but not limited to, family violence, child development, behavioral health, educational disabilities and cultural competence.” §45(3).  The standards “shall be designed to ensure a high quality of legal representation.” §45(3). 

 

Funding

The Connecticut Judicial Department establishes the compensation system for attorneys appointed to represent children in child protection proceedings.  Under the current system, established in 1999, attorneys seeking appointment sign an annual contract with the Department, which provides that they will be paid a flat fee of $350 for the first 30 hours of representation in a case and $40 per hour for representation beyond the initial 30 hours.  See Juvenile Matters Trial Lawyers Ass'n v. Judicial Dept., 2005 U.S. Dist. LEXIS 5067, *4-5 (D. Conn. 2005).  This means that lawyers are paid only $11.67 per hour for the first 30 hours of representation. 

 

The Juvenile Matters Trial Lawyers Association, consisting of approximately 80 lawyers who represent children, filed suit in federal district court against the Judicial Department in 2004, claiming that the rates of pay are substantially lower than those paid to Special Public Defenders in Connecticut, and that "the rates and conditions of compensation are such that the persons represented by appointed counsel are routinely deprived of effective representation, notwithstanding the good faith efforts of court appointed counsel to provide zealous representation." 2005 U.S. Dist. LEXIS, at *5

 

The District Court dismissed the case in March, 2005, holding that the Association did not have standing to bring the claim.  The Court held that the real injury alleged in the suit was ineffective assistance of counsel.  Because the lawyers had not experienced this injury, they lacked standing to sue on their own behalf.  The “injury” of low pay was not sufficient to enable the lawyers to bring suit because they had voluntarily entered into contracts at the challenged rate of pay.  Further, the Court held that the Association lacked associational standing because its members did not experience injury in fact; and the Association did not meet the stringent requirements for third-party standing. 

 

As of April 4, 2005, the Association had not decided whether to appeal the decision, refile with different plaintiffs, or focus attention on the pending legislation regarding the Commission on Child Protection.  See Lisa Siegel, JMTLA Lacks Standing in Members' Pay Dispute, Connecticut Law Tribune, April 4, 2005, at 24.

 

In addition to the issue of dual representation, Connecticut is grappling with the problems of adequate funding and quality representation in the child protection system. 

 

Sources of law

 

Statutes

 

Connecticut Statutes § 46b-136[2] (Appointment of attorney to represent child or youth and parent or guardian)
In any proceeding on 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 or youth, his parent or parents, 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 shall provide an attorney to represent the child and may authorize such attorney or appoint another attorney to represent such child or youth, parent, guardian or other person on an appeal from a decision in such proceeding. 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, it 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 for by the court in providing such counsel, to the extent of their financial ability to do so.

 

Connecticut Statutes § 46b-129a[3] (Appointment of counsel and guardian ad litem)

In proceedings in the Superior Court under §46b-129 [regarding abused, neglected, and uncared-for children]: . . . (2) A child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child and to act as guardian ad litem for the child. The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. In the event that a separate guardian ad litem is appointed, the person previously serving as both counsel and guardian ad litem for the child shall continue to serve as counsel for the child and a different person shall be appointed as guardian ad litem, unless the court for good cause also appoints 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. The counsel and guardian ad litem's fees, if any, shall be paid by the parents or guardian, or the estate of the child, or, if such persons are unable to pay, by the court . . . .

 

2005 Conn. Legis. Serv. 05-3 § 44 (West)[4] (Effective October 1, 2005)

(a) There is established a Commission on Child Protection that shall consist of eleven members appointed as follows:(1) The Chief Justice of the Supreme Court shall appoint two judges of the Superior Court, or a judge of the Superior Court and a retired judge of the Superior Court; (2) the speaker of the House of Representatives, the president pro tempore of the Senate, the majority leader of the Senate and the majority leader of the House of Representatives, and the minority leader of the House of Representatives and the minority leader of the Senate shall each appoint one member; and (3) the Governor shall appoint three members, one of whom shall serve as chairperson.

(b) Each member of the commission shall serve for a term of three years and until the appointment and qualification of his or her successor. No more than three of the members, other than the chairperson, may be members of the same political party. Of the four nonjudicial members, other than the chairperson, at least two shall not be members of the bar of any state.

(c) If any vacancy occurs on the commission, the appointing authority having the power to make the initial appointment under the provisions of this section shall appoint a person for the unexpired term in accordance with the provisions of this section.

(d) The members of the commission shall serve without compensation but shall be reimbursed for actual expenses incurred while engaged in the duties of the commission. The members of the commission shall not be employed in any other position under this section or section 45 of this act.

(e) The commission may adopt such rules as it deems necessary for the conduct of its internal affairs.

(f) The commission shall be responsible for carrying out the purposes of this section and section 45 of this act and shall appoint a Chief Child Protection Attorney, who shall serve at the pleasure of the commission and whose compensation shall be fixed by the commission.

(g) The commission shall be within the Division of Public Defender Services for administrative purposes only.

2005 Conn. Legis. Serv. 05-3§ 45 (West)[5] (Effective October 1, 2005)

The Chief Child Protection Attorney appointed under section 44 of this act shall on or before July 1, 2006:
(1) Establish a system for the provision of: (A) Legal services to indigent respondents in family contempt and paternity matters, and (B) legal services and guardians ad litem to children and indigent parents in proceedings before the superior court for juvenile matters, as defined in subsection (a) of section 46b-121 of the general statutes, other than representation of children in delinquency matters. To carry out the requirements of this section, the Chief Child Protection Attorney may contract with (i) appropriate not-for-profit legal services agencies, and (ii) individual lawyers for the delivery of legal services to represent children and indigent parents in such proceedings;

(2) Ensure that attorneys providing legal services pursuant to this section are assigned to cases in a manner that will avoid conflicts of interest, as defined by the Rules of Professional Conduct; and

(3) Provide initial and in-service training for attorneys providing legal services pursuant to this section and establish training, practice and caseload standards for the representation of: (A) Indigent respondents in family contempt and paternity matters, and (B) children and indigent parents in juvenile matters, as defined in subsection (a) of section 46b-121 of the general statutes, other than representation of children in delinquency matters. Such standards shall apply to any attorney who represents children or indigent parents in such matters pursuant to this section and shall be designed to ensure a high quality of legal representation. The training for attorneys required by this subdivision shall be designed to ensure proficiency in the procedural and substantive law related to such matters and to establish a minimum level of proficiency in relevant subject areas, including, but not limited to, family violence, child development, behavioral health, educational disabilities and cultural competence.

2005 Conn. Legis. Serv. 05-3 § 46 (West)[6] (Effective July 1, 2006)

(a) The judicial authority before whom a juvenile or family matter described in section 45 of this act is pending shall determine eligibility for counsel for a child or youth and 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 the Chief Child Protection Attorney appointed under section 44 of this act. For purposes of determining eligibility for appointment of counsel, the judicial authority shall cause the parent or guardian of a child or youth to complete a written statement under oath or affirmation setting forth the parent or guardian's liabilities and assets, income and sources thereof, and such other information which the Commission on Child Protection shall designate and require on forms adopted by the Commission on Child Protection. Upon the appointment of counsel for a parent, guardian, child or youth, the judicial authority shall notify the Chief Child Protection Attorney, who shall assign the matter to an attorney under contract with the Commission on Child Protection to provide such representation.

(b) The payment of any attorney who was appointed prior to July 1, 2006, to represent a child or indigent parent in any case described in subdivision (1) of section 45 of this act, who continues to represent such child or parent after July 1, 2006, shall be processed through the Commission on Child Protection and paid at the rate that was in effect at the time of such appointment.

Cases

 

In re Tayquon H.[7]

In Tayquon H., an order of temporary custody was filed on behalf of Tayquon, the infant child of 11-year-old “S.”  In the course of the proceeding, S—as a minor—was appointed an attorney and separate guardian ad litem, both of whom acceded to Tayquon's temporary custody order.  Tayquon's maternal grandmother, however, sought to contest the order as S's mother and guardian. 

 

In addressing the grandmother's standing to contest the order, the court recognized the confusion of roles between a child's guardian, counsel, and guardian ad litem.  The court concluded that the guardian ad litem has the exclusive right to speak for the child's best interests: “the guardian ad litem supersedes the role of the natural guardian to speak for the child's best interest in the present litigation.” 821 A.2d, at 807.

 

Although the court declined to draw a bright-line distinction between the roles of counsel for the child and guardian ad litem, it did articulate some limits to those roles:

 

While the best interest of a child encompasses a catholic concern with the child's human needs regarding his or her psychological, emotional, and physical well-being, the representation of a child's legal interests requires vigilance over the child's legal rights. Those legal rights have been enumerated as the right to be a party to a legal proceeding, the right to be heard at that hearing and the right to be represented by a lawyer. When both a guardian ad litem and an attorney have been appointed for a child, their respective roles and the duties attendant to those roles should adhere to that basic distinction. Specifically, the guardian ad litem should refrain from acting as a second attorney for the child. Just as it is not normally the province of the attorney to testify, it is not the province of the guardian ad litem to file briefs with the court.

 

821 A.2d, at 806.

 

In re Christina M[8]

Holding that the court's failure to appoint a guardian ad litem, on the court's own initiative, did not result in a clear violation of the child's constitutional rights.

 

Ethical Provision

 

Connecticut Rules of Professional Conduct Rule 1.14[9] (Client Under a Disability)

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. 

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

 

Commentary

The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of incompetence. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.
The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act as de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests. Thus, if a disabled client has substantial property that should be sold for the client's benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer's part.
If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).
Disclosure of the Client's Condition. Rules of procedure in litigation generally provide that minors or persons suffering mental disability shall be represented by a guardian or next friend if they do not have a general guardian. However, disclosure of the client's disability can adversely affect the client's interests. For example, raising the question of disability could, in some circumstances, lead to proceedings for involuntary commitment. The lawyer's position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician.

Connecticut Rules of Professional Conduct Rule 1.2(a)[10] (Scope of Representation)

A lawyer shall abide by a client's decisions concerning the objectives of representation . . . .

 

Local Contact Information

 

Christina D. Ghio
Senior Staff Attorney
Child Abuse Project
Center for Children's Advocacy
UCONN School of Law
65 Elizabeth Street
Hartford, CT  06105
860-570-5327 ph
860-570-5256 fax
cghio@kidscounsel.org

 

Additional Resources and Links

 

Lisa Siegel, JMTLA Lacks Standing in Members' Pay Dispute, Connecticut Law Tribune, April 4, 2005, at 24.

 

Center for Children's Advocacy, University of Connecticut School of Law

www.kidscounsel.org

 

 

 


Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Conn. Gen. Stat. § 46b-136 (2004), available at here, and also as .pdf Document, and also as Word Document.

[3] Conn. Gen. Stat. § 46b-129a (2004), available at here, and also as .pdf Document, and also as Word Document.

[4] 2005 Conn. Legis. Serv. 05-3 § 44 (West), available here, and also as .pdf Document, and also as Word Document.

[5] 2005 Conn. Legis. Serv. 05-3 § 45 (West), available here, and also as .pdf Document, and also as Word Document.

[6] 2005 Conn. Legis. Serv. 05-3 § 46 (West), available here, and also as .pdf Document, and also as Word Document.

[7] In re Tayquon H., 821 A.2d 796 (Conn. Ct. App. 2003), available at here, and also as .pdf Document, and also as Word Document.doc

[8] In re Christina M., No. 25539 (Ct. Aug. 2, 2005), available here, and also as .pdf Document, and also as Word Document.

[9] Conn. R. of Prof. Conduct R. 1.14 (2005), available at here, and also as .pdf Document, and also as Word Document.

[10] Conn. R. of Prof. Conduct R. 1.2(a) (2005), available at here, and also as .pdf Document, and also as Word Document.

 

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