Right to counsel
06/26/2023, Legislation, Abuse/Neglect/Dependency - Children
Right to Counsel for Children: Generally
For children in abuse/neglect proceedings, Conn. Gen. Stat. Ann. § 46b-129(c) states, “The preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to subsection (a) of this section shall be held in order for the court to: … (2) Ensure that an attorney, and where appropriate, a separate guardian ad litem has been appointed to represent the child or youth in accordance with subsection (b) of section 51-296a [public defender code] and sections 46b-129a and 46b-136.” Section 46b-136 specifies that “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 … on an appeal from a decision in such proceeding.”
Additionally, § 46b-129a(2) adds:
(A) A child shall be represented by counsel knowledgeable about representing such children who shall be assigned to represent the child by the office of Chief Public Defender, or appointed by the court if there is an immediate need for the appointment of counsel during a court proceeding. The court shall give the parties prior notice of such assignment or appointment. Counsel for the child shall act solely as attorney for the child.
(B) If a child requiring assignment of counsel in a proceeding under section 46b-129 is represented by an attorney for a minor child in an ongoing probate or family matter proceeding, the court may appoint the attorney to represent the child in the proceeding under section 46b-129, provided (i) such counsel is knowledgeable about representing such children, and (ii) the court notifies the office of Chief Public Defender of the appointment. Any child who is subject to an ongoing probate or family matters proceeding who has been appointed a guardian ad litem in such proceeding shall be assigned a separate guardian ad litem in a proceeding under section 46b-129 if it is deemed necessary pursuant to subparagraph (D) of this subdivision.
(C) The primary role of any counsel for the child shall be to advocate for the child in accordance with the Rules of Professional Conduct, except that if the child is incapable of expressing the child’s wishes to the child’s counsel because of age or other incapacity, the counsel for the child shall advocate for the best interests of the child.
(D) If the court, based on evidence before it, or counsel for the child, determines that the child cannot adequately act in his or her own best interests and the child’s wishes, as determined by counsel, if followed, could lead to substantial physical, financial or other harm to the child unless protective action is taken, counsel may request and the court may order that a separate guardian ad litem be assigned for the child, in which case the court shall either appoint a guardian ad litem to serve on a voluntary basis or notify the office of Chief Public Defender who shall assign a separate guardian ad litem for the child. The guardian ad litem shall perform an independent investigation of the case and may present at any hearing information pertinent to the court’s determination of the best interests of the child. The guardian ad litem shall be subject to cross-examination upon the request of opposing counsel. The guardian ad litem is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children and relevant court procedures. If a separate guardian ad litem is assigned, the person previously serving as counsel for the child shall continue to serve as counsel for the child and a different person shall be assigned as guardian ad litem, unless the court for good cause also determines that a different person should serve as counsel for the child, in which case the court shall notify the office of Chief Public Defender who shall assign 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.
(E) The counsel and guardian ad litem’s fees, if any, shall be paid by the office of Chief Public Defender unless the parents or guardian, or the estate of the child, are able to pay, in which case the court shall assess the rate the parent or guardian is able to pay and the office of Chief Public Defender may seek reimbursement for the costs of representation from the parents, guardian or estate of the child.
See also 51-296(c) (establishing additional guidelines for attorneys appointed for children); 51-296a(a) (“The judicial authority before whom a family relations matter described in subparagraph (A) of subdivision (1) of subsection (c) of section 51-296 is pending shall determine eligibility for counsel for 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 an attorney to provide representation from a list of qualified attorneys provided by the office of Chief Public Defender.”).
Right to Counsel for Indian Children
In 2023, Connecticut enacted the Connecticut Indian Child Welfare Act, which provides that "[i]any child custody proceeding in which the state court determines indigency ... The court may, in its discretion, appoint counsel for the Indian child upon a finding that such appointment is in the best interest of the child." See SB 1204.
Appointment of Counsel: categorical Qualified: no