In re Christina M., No. 17511.

• Citation: 908 A.2d 1073,280 Conn. 474
• Decision Date: 07 November 2006
• Docket Number: No. 17512.,No. 17511.
• Court: Supreme Court of Connecticut
• Parties: In re CHRISTINA M. et al.<SMALL><SUP>*</SUP></SMALL&gt

908 A.2d 1073

280 Conn. 474

In re CHRISTINA M. et al.^*

No. 17511.

No. 17512.

Supreme Court of Connecticut.

Argued September 18, 2006.

Decided November 7, 2006.

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Raymond J. Rigat, for the appellant in Docket No. SC 17511 (respondent father).

Cheryl A. Juniewic, New Haven, for the appellant in Docket No. SC 17512 (respondent mother).

John Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Paula D. Sullivan and Susan T. Pearlman, assistant attorneys general, for the appellee (petitioner).

David T. Stone, Vernon, for the minor children.

Christina D. Ghio and Martha Stone, Hartford, filed a brief for the Center for Children's Advocacy, Inc., et al. as amici curiae.

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

KATZ, J.

The principal issue in this certified appeal is whether parents who are respondents to a termination of parental rights petition have standing to assert the constitutional rights of their children who are the subject of the termination action. Specifically, we must consider whether parents have standing to assert a claim that their children were denied their constitutional right to conflict free representation in the termination proceeding because the children were denied the appointment of an attorney to advocate for their express wishes during the termination proceeding. We conclude that parents have standing to assert such claims. We further determine that, even if we were to assume without deciding that such a constitutional right exists, the factual record must reflect that there was an apparent conflict between the wishes of the children and the position advocated by their attorney. Because, in the present case, the record is not adequate to establish such a conflict, we do not reach the substantive issues inherent in such a claim.

The record reveals the following undisputed facts. The petitioner, the commissioner of children and families (commissioner), sought to terminate the parental rights of the respondents, Anthony M. and Jessica C., with respect to their three minor children, Christina M., Lynndora M. and Betty Ann M., alleging that the respondents, who had been found to have neglected the children, were unable or unwilling to benefit from the reunification efforts of the department of children and families (department) and that, accordingly, their parental rights should be terminated pursuant to General Statutes § 17a-112(j)(3)(B)(ii). The trial court appointed separate counsel for the respondent mother and father, as well as counsel for the respondents' children, as required under General Statutes § 46b-129a(2).¹ During the three day evidentiary hearing on the petitions, the attorney representing the respondents' children supported the position of the commissioner that termination of the respondents' parental rights was in the best interest of the children.² Although the trial court acknowledged the mutual love between the respondents and their children, it found that the commissioner had proven her allegations and, accordingly, rendered judgments terminating the respondents' parental rights.

In their appeals to the Appellate Court from the judgments terminating their parental rights, the respondents raised the following three issues. First, they challenged the validity of the trial court's findings that the commissioner had presented clear and convincing evidence to establish, in accordance with § 17a-112(j), that, despite efforts by the department to improve the respondents' ability to provide proper care for their daughters, the parents had not achieved sufficient rehabilitation.³ Second, the respondents faulted the trial court for having failed to appoint, on its own initiative, not only an attorney to represent the children's legal rights, but also a guardian ad litem to advocate for their best interests. Finally, the respondent father claimed that, as a matter of law, in order to protect the procedural due process rights of economically disadvantaged parents, under article first, §§ 8 and 10, of our state constitution, courts must require proof beyond a reasonable doubt of the grounds for termination of parental rights. The Appellate Court disagreed with each of these claims and affirmed the judgments. In re Christina M., 90 Conn. App. 565, 877 A.2d 941 (2005).

Thereafter, we granted the respondents' petitions for certification to appeal from the Appellate Court, limited to the following issues: "1. Whether the Appellate Court properly concluded that the trial court does not have a constitutional obligation to appoint an independent attorney to advocate for the express wishes of a child, who is the subject of a termination of parental rights petition, when those wishes conflict with the position advocated by the child's present counsel? [and] 2. If the answer to the first question is `no,' whether deprivation of that right by an attorney who advocates a position contrary to the express wishes of the child causes `structural error' in a termination proceeding creating a presumption of prejudice?" In re Christina M., 276 Conn. 903, 884 A.2d 1024 (2005).

The respondents contend that children subject to a petition for termination of parental rights have a constitutional right to effective assistance of counsel.⁴ They further contend that the trial court in the present case had an obligation, sua sponte, to ensure that there was no conflict between the children's legal interest and their best interest because there was evidence in the record that the children's attorney was not advocating for the expressed wishes of the children. In response, the commissioner contends that this court should not consider the respondents' claim because they lack standing to assert the constitutional rights of their children. The commissioner further contends that the right of children to representation by counsel in termination proceedings is statutory, not constitutional, but even if such a right exists, the record is inadequate to demonstrate that the position advocated by the children's attorney reflected a conflict of interest. We conclude that we cannot address the merits of the certified questions because, although the respondents have standing to assert their claim, the record does not reflect that there was a conflict of interest that would implicate the effectiveness of the children's representation.

I

Before addressing the merits of the respondents' claims, we first must consider the commissioner's assertion that the respondents lack standing to raise these issues. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).

"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.... Two broad yet distinct categories of aggrievement exist, classical and statutory.... Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share.... Second, the party must also show that the ... decision has specially and injuriously affected that specific personal or legal interest.... Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201-202, 896 A.2d 809 (2006).

Although this court previously has not addressed standing in this context, the issue of a parent's standing to raise concerns about his or her child's representation is an issue with which the Appellate Court has had some familiarity. In In re Shaquanna M., 61 Conn.App. 592, 593-94 767 A.2d 155 (2001), the primary issue was whether the respondent mother, whose parental rights in her three sons had been terminated, had been denied procedural due process when the trial court denied her motion for a mistrial or, alternatively, for a continuance, made during the course of trial, based on the death of the attorney whom the court had appointed as both counsel and guardian ad litem for her sons.⁵ The respondent mother challenged that decision in her appeal from the judgments terminating her parental rights, and the commissioner had claimed that the respondent lacked standing to pursue a claim that the denial of her motion for a continuance violated due process. Id., at 597, 767 A.2d 155. Acknowledging that no statute gave the respondent the specific right to seek the remedy of a mistrial or a continuance because of the death of the counsel or guardian ad litem for her children, she claimed classical aggrievement, contending that she had a colorable...