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					                                         Connecticut1
                                   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-1362 (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-129a3 (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 M8
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 1.149 (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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