In re Taijha H.-B.

• Decision Date: 27 September 2019
• Docket Number: SC 20151
• Citation: 333 Conn. 297,216 A.3d 601
• Parties: IN RE TAIJHA H.-B.
• Court: Connecticut Supreme Court

333 Conn. 297

216 A.3d 601

IN RE TAIJHA H.-B.^*

SC 20151

Supreme Court of Connecticut.

Argued January 22, 2019

Officially released September 27, 2019^**

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, Gorton, Katherine Dornelas and Benjamin Wattenmaker, Hartford, filed a brief for the Child Welfare and Juvenile Law Section of the Connecticut Bar Association as amicus curiae.

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

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...