October 31, 2019
In re Taijha H.-B. – SC 20151 – September 2019
Indigent Parent’s Right to Appellate Counsel
In 2015, DCF filed a petition to terminate the parental rights of the biological parents of Taijha H.-B. The trial court had granted the petition and rendered the judgment after concluding that the respondent, Taijha’s mother, was unable to benefit from the efforts that DCF had made to reunify them. Given her indigent status, mother had been appointed counsel through the Office of the Chief Public Defender. Under Practice Book § 79a-3(c), upon mother’s request to appeal, counsel was appointed to review the matter for a possible appeal. Counsel then requested and received transcripts of the trial court proceedings, but his review determined the files were incomplete. The court reporter was unable to provide a complete set of transcripts for counsel to review prior to the deadline for filing an appeal.
As a result, mother’s appellate counsel filed an appeal to preserve her appellate rights. After reviewing the complete transcripts and being unable to identify any nonfrivolous ground for appeal, he then subsequently filed motions to withdraw his appearance for want of a nonfrivolous issue on which to proceed. The motion was granted by the trial court, accepting that the appeal was without merit, without requiring him to file an Anders brief or conducting an independent review of the record to determine whether mother’s appeal would be frivolous. [The Anders standard requires appellate counsel who wishes to withdraw from representation, prior to withdrawal, to provide the court and defendant with a brief outlining anything in the record that may support an appeal; the court must then conduct an independent review of the record, and may allow counsel to withdraw if it agrees with counsel’s conclusion that an appeal would be without merit.] Counsel subsequently amended mother’s appeal, adding the claim that the trial court should have required him to comply with the Anders standard prior to granting his motion to withdraw.
The Appellate Court dismissed the amended appeal because: (1) the amended appeal was not properly filed as set forth in § 79a-3(c), which does not permit an appeal to be filed without the counsel first determining 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.
Upon further review, however, the Supreme Court found that the Appellate Court improperly dismissed mother’s appeal. It reasoned that the rule set forth under Practice Book § 79a-3(c) does not envision every unique scenario, and therefore mother’s case should not have been dismissed on procedural grounds. The Court reasoned that the rule does not mandate the dismissal of an indigent party’s appeal when full review for merit was not possible prior to the filing deadline.
Further, the Court found that where an indigent parent has a constitutional right under the due process clause of the fourteenth amendment to the assistance of counsel when the state seeks to terminate parental rights, that same right also applies to appeals from termination decisions.
As such, the Court held that when an indigent parent has the constitutional right to appellate counsel, due process does not permit that counsel to withdraw for lack of a non-frivolous issue on which to proceed without (1) demonstrating, either through an Anders brief or a hearing, that the record has been thoroughly reviewed for protentional meritorious issues; and (2) taking steps to facilitate review of the case by the indigent parent and court, to determine if counsel correctly concluded any appeal would be meritless.
The Court here reversed the Appellate Court’s judgment and remanded the case with the direction of remanding the case to the trial court for further proceedings consistent with the Supreme Court’s opinion. The trial court must: (1) conduct a hearing to verify on the record that the mother has been advised as to any potential grounds for appeal, and have the opportunity to question counsel; and (2) be satisfied that mother’s counsel has considered potential grounds for appeals and any appeal would be frivolous.