In re Taijha H.-B. ( 2019 )

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IN RE TAIJHA H.-B.*
(SC 20151)
Palmer, McDonald, Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to the United States Supreme Court’s decision in Anders v. Califor-
nia (386 U.S. 738), appointed appellate counsel for an indigent defendant
who concludes that the grounds for the defendant’s appeal are wholly
frivolous and wishes to withdraw from representation must, prior to
withdrawal, provide the court and the defendant with a brief outlining
anything in the record that may support the appeal, and the defendant
must be given time to raise any additional, relevant points. Thereafter,
the court must conduct an independent review of the entire record and
may allow counsel to withdraw if it agrees with counsel’s conclusion
that the defendant’s appeal is entirely without merit.
The respondent mother, who is indigent and whose parental rights with
respect to her child, T, had been terminated, appealed from the Appellate
Court’s dismissal of her appeal from, inter alia, the trial court’s granting
of her appointed counsel’s motion to withdraw from representing her
on appeal in light of his conclusion that such an appeal would be frivo-
lous. After the trial court rendered judgment terminating the respon-
dent’s parental rights, counsel was appointed to review the respondent’s
case for potential grounds for appeal. The court reporter was unable
to provide counsel with a complete set of transcripts, and, thus, counsel
was unable to fully review the case file for potential appealable issues,
prior to the deadline for filing an appeal. Nevertheless, counsel pro-
ceeded to file a timely appeal from the judgment terminating her parental
rights. After receiving the remaining transcripts, counsel completed his
review of the case and advised the respondent that he would be unable
to represent her on appeal because there were no appealable issues
that were not frivolous. Counsel then filed motions in the trial court
and the Appellate Court seeking to withdraw. The Appellate Court denied
counsel’s motion without prejudice pending resolution of the matter in
the trial court. After multiple hearings, the trial court granted counsel’s
motion to withdraw without requiring him to file an Anders brief or
conducting an independent review of the record to determine whether
the respondent’s appeal would be frivolous. Subsequently, counsel
amended the respondent’s appeal to include the issue of whether the
trial court should have allowed him to withdraw without utilizing the
Anders procedure. The Appellate Court thereafter dismissed the respon-
dent’s amended appeal on the ground that the Anders procedure is not
applicable to the withdrawal of an appellate attorney in child protection
proceedings and also on the ground that the appeal was not properly
filed due to a failure to comply with the rule of practice (§ 79a-3 [c])
establishing the procedure by which an indigent party who wishes to
appeal from the termination of his or her parental rights but whose
appointed trial counsel declines to pursue the appeal may obtain review
by the Division of Public Defender Services. On the granting of certifica-
tion, the respondent appealed to this court from the Appellate Court’s
dismissal of her amended appeal. Held:
1. The Appellate Court improperly dismissed the respondent’s appeal for
failure to comply with Practice Book § 79a-3 (c) insofar as counsel filed
the respondent’s original appeal before he fully reviewed the merits of
that appeal; as § 79a-3 (c) does not purport to authorize the taking of
an appeal by an indigent party but, rather, merely dictates the procedure
by which an appointed appellate review attorney is to engage and assist
in that process, this court did not read § 79a-3 (c) to mandate the
dismissal of the respondent’s appeal when, under the unusual circum-
stances of the case, the respondent’s counsel, through no fault of his
own, was unable to fully review the case prior to the deadline for filing
the appeal and prudently opted to file the appeal prior to making a final
merits determination in order to preserve the respondent’s rights.
2. The respondent could not prevail on her claim that Practice Book § 79a-
3 violates the equal protection clause of the fourteenth amendment to
the United States constitution on the ground that the rule imposes a
higher legal burden on appeals brought by indigent litigants who have
been assigned counsel than on litigants who have the financial means
to hire private counsel: although the Rules of Professional Conduct (3.1)
generally prohibit an attorney from taking an appeal that is frivolous
whereas the rules of practice (§§ 35a-21 [b] and 79a-3) governing appeals
in child protection matters by indigent parents permit assigned counsel
to appeal if counsel determines there is merit to an appeal, the concepts
of nonfrivolous appeals and potentially meritorious appeals are deemed
to be synonymous for purposes of § 79a-3, as reviewing counsel for an
indigent parent and a parent who is not indigent must apply the same
standards in determining whether there is no merit to an appeal as in
determining whether the appeal would be frivolous; accordingly, § 79a-
3 does not impose a higher standard on indigent parents seeking to
appeal from a termination of their parental rights, and, therefore, the
rules do not treat indigent and nonindigent parents differently.
3. The respondent had a right under the due process clause of the fourteenth
amendment to the assistance of counsel in connection with her appeal
from the termination of her parental rights: pursuant to the United States
Supreme Court’s decision in Lassiter v. Dept. of Social Services (452
U.S. 18), whether the due process clause of the fourteenth amendment
requires the appointment of counsel for an indigent parent whenever a
state seeks to terminate his or her parental rights is a fact specific
determination that must be made on a case-by-case basis, and this court
determined, on the basis of the United States Supreme Court’s decision
in M.L.B. v. S.L.J. ex rel. S.L.J. (512 U.S. 102), that this right to appointed
counsel, if it is found to apply in termination proceedings, also applies
to appeals from termination decisions; moreover, in determining
whether the right to counsel is required under Lassiter, a court is to
consider various factors, including whether the indigent parent faces
potential criminal liability as a result of evidence presented in the pro-
ceedings, whether expert testimony will be presented, whether the case
will involve complex points of substantive or procedural law, whether
the parent has shown a willingness to participate in the proceedings,
in contesting termination, and in strengthening his or her relationship
with the child, and whether the parent might reasonably prevail with
the assistance of counsel; furthermore, consideration of those factors
led this court to find a right to appointed counsel in the present case,
as the respondent had a long history of criminal activity and was facing
new charges at the time of the termination proceedings, and evidence
presented during those proceedings could have influenced her prosecu-
tion or implicated the respondent in various other crimes, the respon-
dent’s termination proceedings involved testimony by multiple experts,
and the court relied heavily on that testimony in reaching its conclusions
that the respondent was incapable of caring for T and was unable or
unwilling to benefit from reunification efforts, the respondent previously
had been adjudicated incompetent and had serious, unresolved mental
health issues that would have made it difficult, if not impossible, for
her to devise and execute a viable appellate strategy if she had been
required to represent herself, and there was abundant evidence that the
respondent had demonstrated a commitment to reestablishing custody
and maintaining a parental relationship with T, and to actively asserting
her legal rights.
4. The respondent having had a constitutional right to appointed appellate
counsel, due process did not permit her counsel to withdraw for lack
of a nonfrivolous issue on which to proceed without demonstrating,
either in the form of an Anders brief or in the context of a hearing, that
the record had been thoroughly reviewed for potentially meritorious
issues, and without taking sufficient steps to facilitate review of the
case by the respondent and the presiding court for the purpose of a
determination of whether counsel accurately concluded that any appeal
would be meritless: this court based its determination that some Anders-
type procedure was required in the present case on the fact that the
majority of courts that have addressed this issue have imposed such a
requirement as a matter of federal or state constitutional law, the fact
that most of the same rationales that require the use of the Anders
procedure in the criminal context apply with equal force to termination
proceedings, and the fact that the benefits of obtaining a second opinion
in the form of some limited judicial review of counsel’s no merit determi-
nation more than offset the potential costs, and, in light of the circum-
stances of the case, fundamental fairness required that the respondent be
afforded some minimal procedural protections before the court accepted
counsel’s representation that any appeal would be frivolous and poten-
tially required the respondent to proceed on a self-represented basis;
moreover, in termination cases in which there is a right to some Anders-
type procedure, and subject to the discretion of the presiding court,
that court must conduct a colloquy sufficient to ascertain that appointed
counsel has evaluated all potential grounds for appeal and has brought
the most promising grounds to the court’s attention, the indigent parent
must be afforded an opportunity to review counsel’s conclusion and to
bring to the court’s attention what he or she believes are any appealable
issues, and the court must reach its independent conclusion that any
appeal would be frivolous; furthermore, a review of the record in the
present case led this court to conclude that the trial court had failed
to observe adequate procedural safeguards before permitting the respon-
dent’s counsel to withdraw, as the record did not indicate that the trial
court was sufficiently apprised of the facts and legal issues involved in
the case so as to enable it to perform an independent review, that the
court did in fact form its independent judgment that the respondent’s
counsel had accurately determined that any appeal would be meritless,
or that counsel adequately communicated to the respondent her proce-
dural options in the event that counsel was allowed to withdraw; accord-
ingly, the Appellate Court improperly dismissed the respondent’s
amended appeal on the ground that Anders was inapplicable to the
withdrawal of an appellate attorney in child protection proceedings, and
the case was remanded in order to allow the trial court, at a minimum,
to conduct a hearing to verify, on the record, that the respondent had
been advised as to any potential grounds for appeal and had the opportu-
nity to question counsel, to be satisfied that counsel has fully explored
potential grounds for appeal, and to independently determine that any
appeal by the respondent would be frivolous.
(Two justices concurring in part and dissenting
in part in one opinion)
Argued January 22—officially released September 27, 2019**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights as to
their minor child, brought to the Superior Court in the
judicial district of New Haven, Juvenile Matters, and
tried to the court, Marcus, J.; judgment terminating the
respondents’ parental rights, from which the respon-
dent mother appealed to the Appellate Court; thereafter,
the court, Burke, J., granted the motion to withdraw
filed by the respondent mother’s counsel; subsequently,
the respondent mother amended her appeal, and the
Appellate Court dismissed the amended appeal; there-
after, the respondent mother, on the granting of certifi-
cation, appealed to this court. Reversed; further pro-
ceedings.
James P. Sexton, assigned counsel, with whom were
Megan L. Wade, assigned counsel, and, on the brief,
Emily Graner Sexton, assigned counsel, for the appel-
lant (respondent mother).
John E. Tucker, assistant attorney general, with
whom, on the brief, were George Jepsen, former attor-
ney 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, Katherine Dornelas and Benjamin Watten-
maker filed a brief for the Child Welfare and Juvenile
Law Section of the Connecticut Bar Association as ami-
cus curiae.
Opinion
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 appel-
late 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 circum-
stances are such that the indigent parent has a constitu-
tional 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 mer-
itless.
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 peti-
tion 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 nonfriv-
olous issue on which to proceed. The trial court granted
counsel’s motion to withdraw, accepting counsel’s rep-
resentation 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 deter-
mined 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 con-
stitution.
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 dis-
pute, 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 Octo-
ber, 2015, the commissioner filed a petition for termina-
tion of parental rights.
In 2017, following a trial that included medical testi-
mony 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 preven-
tion, 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 incarcera-
tion, her lack of stable housing and employment, and,
above all, the serious, deteriorating mental health prob-
lems that she refused to address. The court also found
that, although Taijha has an emotional bond with the
respondent, their relationship and the attendant insta-
bility 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 respon-
dent 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 tran-
scripts 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, there-
fore, 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 Appel-
late 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 conclu-
sion 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 basis or to hire alternative counsel. The
trial court, raising sua sponte the question of whether
replacement counsel must be appointed if Sexton were
permitted to withdraw, scheduled a second hearing and
asked the parties to brief that question.
In his brief to the trial court, Sexton argued not only
that due process might require the appointment of
replacement counsel for the respondent, but also that
Sexton himself should not be permitted to withdraw
without first having complied with the Anders require-
ments. Following a second hearing, the trial court
granted Sexton’s motion to withdraw without requiring
the filing of an Anders brief or conducting its own
independent review to determine whether any appeal
would be frivolous. Sexton then amended the respon-
dent’s appeal to include the issue of whether the court
should have allowed him to withdraw without utilizing
the Anders procedure.
Before the amended appeal had been briefed, the
Appellate Court, sua sponte, ordered the parties to
appear and give reason why that appeal should not be
dismissed because (1) ‘‘the appeal was not properly
filed pursuant to [Practice Book] § 79a-3 (c),’’ and (2)
‘‘the procedure set forth in Anders . . . is not applica-
ble to the withdrawal of an appellate review attorney
in child protection proceedings.’’ Following argument
on the motion, the Appellate Court dismissed the
amended appeal for both of those reasons.
This certified appeal followed. Additional facts will
be set forth as necessary.
II
We first consider whether the Appellate Court prop-
erly dismissed the respondent’s amended appeal for
failure to comply with Practice Book § 79a-3 (c). The
respondent contends, and we agree, that the rule does
not envision or account for the unique scenario involved
in the present case. For that reason, her appeal should
not have been dismissed on procedural grounds.5
In its order dismissing the respondent’s amended
appeal, the Appellate Court stated that ‘‘the appeal was
not properly filed pursuant to [Practice Book] § 79a-3
(c).’’6 That rule establishes the following procedure by
which an indigent party, who wishes to appeal from a
termination of parental rights but whose appointed trial
counsel declines to pursue the appeal, may obtain
review by the Division of Public Defender Services: ‘‘If
the appellate review attorney determines that there is
merit to an appeal, that attorney shall file the appeal
in accordance with [Practice Book §] 63-3.’’ Practice
Book § 79a-3 (c) (1). Furthermore, ‘‘[i]f the reviewing
attorney determines that there is no merit to an appeal,
that attorney shall make this decision known to the
judicial authority, to the party and to the Division of
Public Defender Services at the earliest possible
moment. The reviewing attorney shall inform the party,
by letter, of the balance of the time remaining to appeal
as a self-represented party or to secure counsel who
may file an appearance to represent the party on appeal
at the party’s own expense.’’ Practice Book § 79a-3
(c) (2).
On its face, the rule envisions and addresses only
two possibilities. If the appellate review attorney com-
pletes a review of the case prior to the deadline for
filing an appeal and determines that there is merit, then
that attorney is directed to file an appearance in the
Appellate Court; see Practice Book § 35a-21 (b); and to
file the appeal on behalf of the indigent party. If a timely
review fails to reveal any merit, then the participation
of the appellate review attorney is limited to advising
the party thereof. The party then has the option of
filing an appeal on a self-represented basis or obtaining
private counsel. Both prongs of the rule thus assume
that the reviewing attorney is capable of completing a
full review of the case prior to the filing deadline.
In the vast majority of cases, a diligent attorney will
be able to complete this review within the appeal
period. In the present case, however, it is undisputed
that, through no fault of his own, Sexton was unable
to review the case fully prior to the filing deadline.
Facing a dilemma in which he was unable to comply
with either Practice Book § 79a-3 (c) (1) (by filing an
appeal that he had determined to have potential merit)
or § 79a-3 (c) (2) (by informing the respondent prior
to the filing deadline that, in his estimation, there was
no nonfrivolous ground for appeal), and lacking any
guidance from the rules of practice, Sexton prudently
opted to file the appeal, in order to preserve the respon-
dent’s rights, prior to making a final merits determi-
nation.
The commissioner contends that the better option
would have been for Sexton to file a motion in the
Appellate Court to suspend the rules; see Practice Book
§ 60-3; to allow an additional extension of time to obtain
the missing portions of the trial record. We do not
disagree that this option is available, and perhaps even
preferable, as we have little doubt that such a motion
would have been granted under the circumstances.7
The issue before us, however, is whether the rules
categorically prohibit an appellate review attorney from
filing a timely appeal, prior to completing a full merits
review, even under the unique circumstances of this
case.8 In addressing this issue, we are mindful of the
‘‘long recognized presumption in favor of appellate
jurisdiction’’; Seebeck v. State, 246 Conn. 514, 533, 717
A.2d 1161 (1998); and also that the rules of practice
are to be construed liberally, rather than narrowly and
technically, in order to facilitate judicial business and
to advance justice. See Practice Book §§ 1-8 and 60-1;
see also 3A S. Singer, Sutherland Statutes and Statutory
Construction (8th Ed. 2018) § 67:10, pp. 404–406
(‘‘Courts usually favor a party’s right of appeal and
construe statutes and rules to protect that prerogative
. . . . The essential policy animating this broad judicial
approach is . . . that courts should consider cases on
their merits and in terms of a party’s substantive rights
and not defeat them on mere technicalities.’’).
The primary argument in favor of the Appellate
Court’s reading of Practice Book § 79a-3 (c) would seem
to be a prohibition by negative implication. It is well
established that ‘‘[a] statute that prescribes that a thing
should be done in a particular way, carries with it an
implied prohibition against doing it in any other way
. . . .’’ New Haven v. Whitney, 36 Conn. 373, 375 (1870).
From the fact that the rule requires a reviewing attorney
to file an appeal after having found potential merit, the
Appellate Court apparently drew a negative implication
that the attorney may not file the appeal prior to having
made such a finding.
The principle of prohibition by negative implication,
however, applies most directly in situations in which a
statute or rule confers enumerated powers. See State
v. White, 204 Conn. 410, 424, 528 A.2d 811 (1987). ‘‘But
when the power to do a thing exists and may be exer-
cised according to the usual methods of law or equity,
and the statute is only by way of regulation or enlarge-
ment of the power, then there can be no implied prohibi-
tion of the power, or to the way it is to be enforced.’’
Johnston v. Allis, 71 Conn. 207, 217, 41 A. 816 (1898);
see also 3A S. Singer, supra, § 69:13, pp. 933–34 (with
respect to termination of parental rights statutes, purely
procedural language that is neither prohibitory nor
jurisdictional is usually directory rather than man-
datory).
The rules of practice permit an indigent parent, like
any other party, to file an appeal without first having
conducted a full review of the record and having made
a formal determination of merit. See Practice Book § 63-
4 (a) (1). Section 79a-3 (c) does not purport to authorize
the taking of an appeal by an indigent party but, rather,
merely dictates the procedure by which an appointed
appellate review attorney is to engage and assist in
the process. Accordingly, we do not read that rule as
mandating the dismissal of an indigent party’s appeal
when, as under the unusual circumstances of this case,
full review for merit was not possible prior to the fil-
ing deadline.
III
We next turn our attention to the respondent’s claim
that Practice Book § 79a-3, on its face, violates the equal
protection clause of the federal constitution. Specifi-
cally, she argues that the rule imposes a different, higher
legal burden on appeals brought by indigent litigants
who have been assigned counsel than on litigants who
have the financial means to hire private counsel. We
are not persuaded.9
We begin by setting forth the governing law. ‘‘[T]he
concept of equal protection [under both the state and
federal constitutions] has been traditionally viewed as
requiring the uniform treatment of persons standing in
the same relation to the governmental action questioned
or challenged. . . . Conversely, the equal protection
clause places no restrictions on the state’s authority to
treat dissimilar persons in a dissimilar manner. . . .
Thus, [t]o implicate the equal protection [clause] . . .
it is necessary that the state statute [or rule] . . . in
question, either on its face or in practice, treat persons
standing in the same relation to it differently. . . .
[Accordingly], the analytical predicate [of an equal pro-
tection claim] is a determination of who are the persons
[purporting to be] similarly situated. . . . [T]his initial
inquiry is not whether persons are similarly situated
for all purposes, but whether they are similarly situated
for purposes of the law challenged. . . .
‘‘This court has held, in accordance with the federal
constitutional framework of analysis, that in areas of
social and economic policy that neither proceed along
suspect lines nor infringe fundamental constitutional
rights, the [e]qual [p]rotection [c]lause is satisfied [as]
long as there is a plausible policy reason for the classifi-
cation . . . the legislative facts on which the classifica-
tion is apparently based rationally may have been con-
sidered to be true by the governmental [decision maker]
. . . and the relationship of the classification to its goal
is not so attenuated as to render the distinction arbitrary
or irrational . . . . If, however, state action invidiously
discriminates against a suspect class or affects a funda-
mental right, the action passes constitutional muster
. . . only if it survives strict scrutiny. . . . Under that
heightened standard, the state must demonstrate that
the challenged statute is necessary to the achievement
of a compelling state interest.’’10 (Citations omitted;
internal quotation marks omitted.) Kerrigan v. Com-
missioner of Public Health, 289 Conn. 135, 157–59, 957
A.2d 407 (2008).
In the present case, the respondent’s equal protection
argument proceeds as follows. First, she argues that
indigent parents such as herself and nonindigent par-
ents with the means to hire private counsel are similarly
situated with regard to appeals from parental rights
termination orders.
Second, she argues that Practice Book § 79a-3 treats
those similarly situated classes differently. She con-
tends that, whereas § 79a-3 permits assigned counsel
to take an appeal on behalf of an indigent client only
if the attorney believes that the appeal is meritorious;
see Practice Book § 79a-3 (c); a privately retained attor-
ney may, consistent with the Rules of Professional Con-
duct, take an appeal from a termination order, as long
as the appeal is not frivolous. See Rules of Professional
Conduct 3.1. The respondent argues that, in essence,
§ 79a-3 (c) imposes a more restrictive bar than does
rule 3.1, because there is a category of appellate claims
that lack merit but that nevertheless are not frivolous.
For example, there might be a case in which the only
colorable basis for appeal is to invite an appellate tribu-
nal to revisit a rule of law that had been upheld in the
face of previous challenges. The respondent’s argument
appears to be that such an appeal would lack merit,
because there would be little if any chance that the
appellant would prevail, but it would not constitute a
frivolous appeal for purposes of rule 3.1, because it
would rest on a good faith argument for the reversal
of existing law.
Third, the respondent argues that, because natural
parents have a fundamental liberty interest in the care,
custody, and management of their children; e.g., San-
tosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982); the alleged disparity created by
Practice Book § 79a-3 will pass constitutional muster
only if it can survive strict scrutiny. She suggests that no
compelling state interest justifies the alleged disparity
created by the rule.
We assume without deciding that the first and third
premises of the respondent’s argument are true: indi-
gent and nonindigent parents are similarly situated with
respect to their right to appeal from termination orders
and, because fundamental familial rights are implicated,
any disparate treatment would be subject to strict scru-
tiny. Nevertheless, we conclude that the argument fails
because the second premise is false. Section 79a-3 does
not impose a different, higher standard for bringing an
appeal than does rule 3.1.
Under rule 3.1 of the Rules of Professional Conduct,
‘‘[an] action is frivolous . . . if the lawyer is unable
either to make a good faith argument on the merits of
the action taken or to support the action taken by a
good faith argument for an extension, modification or
reversal of existing law.’’ Rules of Professional Conduct
3.1, commentary. The notion of a meritorious appeal,
by contrast, is nowhere defined in the Practice Book.
Although common usage might support the respon-
dent’s argument that a meritorious appeal is one that
enjoys a reasonable possibility of success,11 so that an
appeal brought in good faith but with a very slim chance
of success could lack merit without being frivolous,
the Practice Book generally treats the concepts of a
meritless claim as meaning a frivolous claim.
Practice Book § 79a-3 operates in conjunction with
Practice Book § 35a-21, which establishes not only the
procedures by which appellate counsel may file an
appearance in a child protection matter, but also the
time to appeal from final judgments or decisions in
such matters. Section 35a-21 (b) provides in relevant
part: ‘‘If an indigent party, child or youth wishes to
appeal a final decision, the trial attorney shall file an
appeal or seek review by an appellate review attorney
in accordance with the rules for appeals in child protec-
tion matters in Chapter 79a. The reviewing attorney
determining whether there is a nonfrivolous ground for
appeal shall file a limited ‘in addition to’ appearance
with the trial court for purposes of reviewing the merits
of an appeal. If the reviewing attorney determines there
is merit to an appeal, such attorney shall file a limited
‘in addition to’ appearance for the appeal with the
Appellate Court. . . .’’ (Emphasis added.) It seems
clear, then, that the concepts of a nonfrivolous appeal
and a potentially meritorious appeal are deemed to be
synonymous for purposes of § 79a-3.
This conclusion finds support in other provisions of
the rules of practice; see Practice Book § 8-2 (d) (2) (B)
(referring to ‘‘frivolous filings that have been without
merit’’); and also in the decisions of other courts that
have considered under what circumstances an indigent
parent is entitled to appellate review or representation
in a termination matter.12 Accordingly, we conclude that
Practice Book § 79a-3 does not impose a higher stan-
dard on indigent parents seeking to appeal from a termi-
nation of their parental rights and, therefore, does not,
on its face, violate their right to the equal protection
of the law.
We recognize that, in Anders, the United States
Supreme Court indicated that a statement by counsel
that he found no merit in the defendant’s appeal did
not amount to a determination that an appeal would
be wholly frivolous. See Anders v. California, supra,
386 U.S. 743–44. That conclusion in no way contradicts
our determination that, for purposes of Connecticut’s
rules of appellate procedure, reviewing counsel is
required to apply the same standards in determining
whether there is no merit to an appeal as in determining
whether the appeal would be frivolous. Indeed, the
United States Supreme Court has subsequently indi-
cated that the two concepts may be used synonymously
in the Anders context. See McCoy v. Court of Appeals
of Wisconsin, District 1, 486 U.S. 429, 438 n.10, 108 S.
Ct. 1895, 100 L. Ed. 2d 440 (1988) (‘‘The terms ‘wholly
frivolous’ and ‘without merit’ are often used inter-
changeably in the Anders . . . context. Whatever term
is used to describe the conclusion an attorney must
reach as to the appeal before requesting to withdraw
and the court must reach before granting the request,
what is required is a determination that the appeal lacks
any basis in law or fact.’’).
Finally, we note that, in the present case, reviewing
counsel did not merely conclude that the respondent’s
appeal lacked merit in that it was unlikely to succeed.
Rather, he expressly represented to the court that, after
reviewing the record, counsel ‘‘concluded that [they]
did not have a nonfrivolous ground [on which] to pro-
ceed.’’ Accordingly, there is no question that the respon-
dent herself was not held to a higher standard than are
nonindigent parents.
IV
Lastly, we turn our attention to the respondent’s argu-
ment that the Appellate Court incorrectly determined
that the procedure set forth in Anders is inapplicable
to the withdrawal of an appellate review attorney in
child protection proceedings and, therefore, that the
respondent’s amended appeal should not have been
dismissed on that basis. She argues that (1) the due
process provisions of the state and federal constitutions
secure a right to the effective assistance of counsel in
appeals from termination decisions, and (2) a trial court
may not permit appointed counsel to withdraw for lack
of a nonfrivolous basis for appeal without adhering to
the procedure set forth in Anders. In the alternative,
the respondent contends that, at the very least, the
state constitution requires some sort of more limited
procedural safeguards than those set forth in Anders,
and allowing reviewing counsel to withdraw on the
basis of his mere representation that no potentially
meritorious grounds for appeal have been identified is
not sufficient to protect the rights of an indigent parent
to due process of law. We conclude that, on the facts
of the present case, the respondent had a constitutional
right to the assistance of counsel on appeal and that
the trial court did not observe adequate procedural
safeguards before permitting Sexton to withdraw.
A
‘‘Anders established a prophylactic framework that is
relevant when, and only when, a litigant has a previously
established constitutional right to counsel.’’ Pennsylva-
nia v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L.
Ed. 2d 539 (1987). Accordingly, in assessing whether
the trial court was required to follow some version
of the Anders procedure before permitting reviewing
counsel to withdraw, our first task is to determine
whether, under either the federal or the state constitu-
tion, an indigent parent has a right to appointed counsel
in an appeal from a termination of parental rights.13
In answering this question, our starting point is Las-
siter v. Dept. of Social Services, 452 U.S. 18, 101 S. Ct.
2153, 68 L. Ed. 2d 640 (1981). In Lassiter, the United
States Supreme Court considered whether the due pro-
cess clause of the fourteenth amendment requires the
appointment of counsel for indigent parents in every
parental status termination proceeding. See id., 24. The
court read its prior cases as establishing a presumption
that an indigent litigant has a right to appointed counsel
only when his or her physical liberty is at stake. Id.,
25–27. The court then applied the due process balancing
test set forth in Mathews v. Eldridge, 424 U.S. 319, 335,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)—weighing the
competing private and governmental interests at stake
and the risk of an erroneous decision in the absence of
appointed counsel—to determine whether an indigent
parent’s interest in obtaining the assistance of counsel is
sufficiently compelling to overcome that presumption.
Lassiter v. Dept. of Social Services, supra, 27–32.
Despite marshalling a number of potentially convinc-
ing arguments in favor of recognizing a right to counsel;
see id.;14 the court ultimately declined to hold that due
process requires the appointment of counsel whenever
a state seeks to terminate the parental rights of an
indigent parent. Id., 31. Instead, the court held that
whether the federal constitution requires the appoint-
ment of counsel is a fact specific determination that
must be made by balancing the Mathews factors on a
case-by-case basis. See id., 31–32. The court further
cautioned that, in light of the presumption against the
right to appointed counsel in the absence of a potential
deprivation of physical liberty, such a right would exist
only ‘‘[i]f, in a given case, the parent’s interests [are]
at their strongest, the [s]tate’s interests [are] at their
weakest, and the risks of error [are] at their peak
. . . .’’ Id., 31.
In Lassiter, the court concluded that the trial court
did not deny the indigent mother due process of law
when it declined to appoint counsel. Id., 33. The court
reached this conclusion largely because (1) the mother
faced no potential criminal liability as a result of allega-
tions raised in the hearing, (2) no expert testimony
was presented, (3) the case did not involve especially
troublesome points of substantive or procedural law,
(4) the mother had declined to participate in prior pro-
ceedings and demonstrated little interest in contesting
the termination, and (5) the weight of the evidence
indicated that the mother, who only recently had begun
serving a prison sentence of twenty-five to forty years
for second degree murder, had little interest in strength-
ening her relationship with her son. Id., 20, 32–33.
Accordingly, although the court expressly declined to
set forth ‘‘a precise and detailed set of guidelines to be
followed in determining when the provi[sion] of counsel
is necessary to meet the applicable due process require-
ments’’ (internal quotation marks omitted); id., 32; we
can glean from the court’s analysis that the appointment
of counsel may be required under the federal constitu-
tion when the indigent parent actively contests the ter-
mination, faces potential criminal liability as a result
of evidence presented in the proceedings, must navigate
complex substantive, procedural, or evidentiary issues,
or might reasonably have prevailed with the assistance
of counsel. Ultimately, the question is whether requiring
the parent to proceed on a self-represented basis ren-
ders the proceedings fundamentally unfair. See id., 33.
Although Lassiter addressed the right to counsel at
the hearing stage, subsequent decisions have strongly
suggested that the same principles and considerations
apply when an indigent parent appeals from a termina-
tion decision. Indeed, in M.L.B. v. S.L.J. ex rel. S.L.J.,
519 U.S. 102, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996),
the United States Supreme Court all but stated that,
under appropriate circumstances, Lassiter also confers
a right to counsel in termination appeals: ‘‘It would be
anomalous to recognize a right to a transcript needed
to appeal a misdemeanor conviction . . . but hold, at
the same time, that a transcript need not be prepared
for [an indigent parent]—though were her defense suffi-
ciently complex, [state paid] counsel, as Lassiter
instructs, would be designated for her.’’ Id., 123. It seems
apparent, therefore, that Lassiter applies to appeals
from parental rights termination decisions.
Having established that Lassiter applies to the pres-
ent case, we now consider whether, on these facts, and
in light of the guidance that the United States Supreme
Court provided in that case, the respondent had a right
to appellate counsel under the due process clause of
the fourteenth amendment. We conclude that she did.
As we discussed, the United States Supreme Court
found several factors to be dispositive in Lassiter: the
absence of any potential criminal liability, the fact that
the mother was not confronted with expert testimony
or complicated issues that might have necessitated legal
expertise, her general lack of engagement in the pro-
cess, and compelling evidence favoring termination.15
In the present case, by contrast, most of those factors
point in the other direction.16
1
First, the United States Supreme Court has recog-
nized the importance of having access to counsel when
the behavior at issue in a termination proceeding also
may implicate potential criminal liability. As the court
explained in Lassiter, ‘‘[s]ome parents will have an addi-
tional interest to protect. Petitions to terminate parental
rights are not uncommonly based on alleged criminal
activity. Parents so accused may need legal counsel to
guide them in understanding the problems such peti-
tions may create.’’ Lassiter v. Dept. of Social Services,
supra, 452 U.S. 27 n.3.
In the present case, this factor weighs in favor of
recognizing a right to counsel. The respondent has a
long history of criminal activity. She was arrested, con-
victed, and incarcerated on several occasions between
2014 and 2017. Importantly, at the time of the termina-
tion hearing, the respondent was facing new charges
involving alleged marijuana possession and conspiracy
to commit armed robbery. Testimony and other evi-
dence presented at the hearing could have influenced
those prosecutions or implicated the respondent in vari-
ous other crimes. There was evidence, for example,
that she had assaulted Taijha with a belt, abducted
Taijha during a supervised visit, refused to participate
in substance abuse testing and faked those tests that
she did take, and repeatedly appeared to be abusing or
under the influence of illicit substances, such as PCP. In
fact, during the hearing, counsel for the commissioner
questioned the respondent at some length about the
new criminal charges. Ultimately, the trial court’s find-
ing that the respondent ‘‘failed to remain sober and
drug free’’ was a key factor in its determination that
she had failed to rehabilitate. Other courts applying
Lassiter have found a right to appointed counsel for
an indigent parent when there was far less potential
for criminal liability than in the present case. See, e.g.,
South Carolina Dept. of Social Services v. Vanderhorst,
287 S.C. 554, 559–60, 340 S.E.2d 149 (1986) (allegations
of alleged physical abuse of child); State ex rel. T.H. v.
Min, 802 S.W.2d 625, 627 (Tenn. App. 1990) (parent
made one statement to court exposing herself to poten-
tial criminal liability).
2
In Lassiter, the court also indicated that an indigent
parent’s need for representation is greater, and the
potential for error, should she proceed on a self-repre-
sented basis, is higher, when a case involves complex
legal questions, the presentation of expert testimony,
or other factors that would render self-representation
problematic or impossible. Unlike in Lassiter, in the
present case, those factors also support the conclusion
that the respondent has a right to the appointment of
appellate counsel.17
The trial featured testimony by two expert wit-
nesses—Ines Schroeder, a forensic psychologist, and
James Pier, a clinical neuropsychologist—and a third
expert, Bandy Lee, a forensic psychiatrist, testified at
a prior competency hearing. The court relied heavily
on the opinions of those experts in reaching the conclu-
sions that the respondent was incapable of caring for
Taijha and that she was unable or unwilling to benefit
from reunification efforts.
More important, although we are not prepared to say
that the trial involved especially complex questions of
law, in the present case, that is largely irrelevant insofar
as the respondent has been adjudicated incompetent
and has serious, unresolved mental health issues that
would make it difficult, if not impossible, for her to
devise and execute a viable appellate strategy. The trial
court credited expert testimony that the respondent
suffers from a number of severe psychiatric impair-
ments. She has been diagnosed with psychotic disorder.
Her behavior is erratic and unfocused, her thought pro-
cesses tangential and delusional, her speech rambling
and incoherent, and her insight and judgment extraordi-
narily limited.18
In short, the task of representing oneself on appeal,
which is formidable for the most competent of layper-
sons, would be virtually inconceivable for a litigant
facing the respondent’s challenges. Our sister courts,
under similar circumstances, have had no difficulty con-
cluding that to require such a litigant to proceed on a
self-represented basis would be fundamentally unfair.
See, e.g., South Carolina Dept. of Social Services v.
Vanderhorst, supra, 287 S.C. 560 (recognizing right to
appointed counsel under Lassiter when mother’s
behavior evidenced mental instability); In re Welfare
of Hall, 99 Wash. 2d 842, 846–47, 664 P.2d 1245 (1983)
(unlike in criminal context, in which defendant must
be competent to stand trial, respondent in child depriva-
tion proceeding ‘‘may be entirely incompetent and
entirely unable to raise potentially meritorious issues’’
pro se); see also State ex rel. T.H. v. Min, supra, 802
S.W.2d 627 (although case did not present overly com-
plex issues or procedures, parents were so lacking in
education and intelligence that appointment of counsel
was necessary).
3
The next factor that the United States Supreme Court
found to be dispositive in Lassiter was that the mother
in that case had declined to participate in prior proceed-
ings and demonstrated little interest in contesting the
termination. Lassiter v. Dept. of Social Services, supra,
452 U.S. 33. In the present case, there is no doubt that
the respondent’s unresolved mental health and sub-
stance abuse problems and repeated incarcerations hin-
dered her ability to take the steps necessary to demon-
strate an ability to rehabilitate.
Unlike in Lassiter, however, there is abundant evi-
dence in the present case that the respondent has
attempted to prioritize her relationship with Taijha.
After Taijha was removed from the respondent’s care,
the respondent filed a petition in 2011 to be reinstated
as Taijha’s guardian. In 2014, she attended thirty-three
of forty scheduled visits to the R Kids therapeutic family
time program. The following year, she referred herself
for substance abuse treatment. The respondent also
engaged private counsel to represent her at the trial,
despite her documented financial need. She attended
all of the hearings before the trial court and submitted
additional documentary evidence after the close of
the trial.
In addition, several of the commissioner’s own wit-
nesses testified about the respondent’s affection for
and commitment to her daughter. Schroeder testified
that she was very loving, attentive, and affectionate
with Taijha in their various sessions together. Alyssa
Clarino, a department social worker, indicated that it
was very apparent that the respondent loved Taijha and
wished to care for Taijha to the best of her ability.
Anna Garcia, the director of the R Kids Family Center,
concurred, testifying that Taijha is clearly the respon-
dent’s ‘‘biggest motivation in life.’’ Indeed, at the time
of trial, the respondent recently had requested that the
frequency of her visitation with Taijha be increased.
There is little doubt, then, that, despite her well docu-
mented inability to be a stable, reliable, and nurturing
resource for Taijha, the respondent demonstrated far
more of a commitment to reestablishing custody, main-
taining a parental relationship, and actively asserting
her legal rights than did the mother in Lassiter. See
Lassiter v. Dept. of Social Services, supra, 452 U.S. 33.
4
The last factor that the court found persuasive in
Lassiter was that the weight of the evidence that the
mother lacked interest in rekindling her relationship
with her son was so great that the presence of counsel
could not have made a determinative difference. Id.,
32–33. In the present case, as we discussed, it is undis-
puted that the respondent was interested in maintaining
a relationship with Taijha and that mother and daughter
shared a close emotional bond. The primary concern
was that the respondent’s largely unacknowledged and
untreated mental health conditions made it impossible
for her to provide a stable, nurturing environment.
Our review of the Lassiter factors, then, leads us to
conclude that the respondent has a right to appointed
appellate counsel under the due process clause of the
fourteenth amendment. Because we are persuaded that
the federal constitution quite clearly secures the respon-
dent’s right to counsel,19 we need not consider her argu-
ment that article first, § 10, of the Connecticut constitu-
tion independently confer such a right.20
In so holding, we do not intend to gainsay the trial
court’s well documented factual findings on the merits.
Nor do we express an opinion as to whether Sexton
correctly concluded that there is no nonfrivolous
ground for the respondent’s appeal. We hold only that,
for all of the reasons discussed in this opinion, we are
unable to conclude, on the basis of the present record,
that the assistance of counsel could be of no benefit
to the respondent in an appeal from the termination of
her parental rights.
B
Having concluded that the respondent was entitled
termination of her parental rights, we now turn our
attention to her contention that an Anders procedure,
or something akin thereto, is required to vindicate that
right when, as in the present case, appointed counsel
finds no potential merit in the appeal and seeks to
withdraw. We begin by briefly reviewing Anders and
its progeny.
‘‘In Anders, the United States Supreme Court outlined
a procedure that is constitutionally required when, on
direct appeal, appointed counsel concludes that an indi-
gent [criminal] defendant’s case is wholly frivolous and
wishes to withdraw from representation. . . . Under
Anders, before appointed counsel may withdraw, he or
she must provide the court and the defendant with a
brief outlining anything in the record that may support
the appeal, and the defendant must be given time to
raise any additional relevant points. . . . Thereafter,
the court, having conducted its own independent review
of the entire record of the case, may allow counsel to
withdraw if it agrees with counsel’s conclusion that the
appeal is entirely without merit.’’ (Citations omitted.)
State v. Francis, 322 Conn. 247, 250 n.3, 140 A.3d 927
(2016).
From one vantage point, Anders attempted to resolve
the conflicting professional duties facing appointed
counsel, who is bound to advocate zealously for the
interests of the indigent client but who is simultane-
ously prohibited from presenting frivolous arguments
on appeal. From the standpoint of the client, Anders
serves a range of purposes when appointed counsel can
find no potentially meritorious grounds for appeal and
seeks to withdraw. See Penson v. Ohio, 488 U.S. 75,
81–82, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). The
Anders procedure (1) ensures that counsel has, in fact,
diligently reviewed the record for potential errors, (2)
provides a possible appellate road map for the client
should he or she choose to proceed on a self-repre-
sented basis, and (3) may lead counsel, through the
process of researching and drafting, to conclude that
the client’s appeal is not without merit after all. In
addition, submission of the brief facilitates and poten-
tially expedites the independent judicial review that
Anders requires. See L.C. v. State, 963 P.2d 761, 766
(Utah App. 1998), cert. denied sub nom. D.C. v. State,
982 P.2d 88 (Utah 1999).
In the more than one-half century since Anders was
decided, the United States Supreme Court, our sister
state courts, and the courts of Connecticut have sought
to answer a number of questions regarding the scope
and applicability of the Anders procedure. These
include, first, whether something short of the full proce-
dure delineated in the final part of the Anders decision;
see Anders v. California, supra, 386 U.S. 744; satisfies
the requirements of the federal constitution and, sec-
ond, whether Anders applies outside of the context of
direct criminal appeals, such as in habeas proceedings,
in connection with motions to set aside an illegal sen-
tence, or in various civil contexts.
The United States Supreme Court answered the first
question in Smith v. Robbins, 528 U.S. 259, 120 S. Ct.
746, 145 L. Ed. 2d 756 (2000). In that case, the court
held that the final part of Anders, in which the court set
forth one acceptable procedure for handling frivolous
appeals, is not obligatory, and that states are free to
adopt different procedures for the withdrawal of
appointed counsel, as long as those procedures ade-
quately safeguard an indigent defendant’s right to appel-
late counsel and protect against the possibility that
appointed counsel has incorrectly determined that an
appeal would be frivolous. Id., 265, 272–76. For exam-
ple, in Robbins, the court approved of a procedure that
the Supreme Court of California had adopted in People
v. Wende, 25 Cal. 3d 436, 441–42, 600 P.2d 1071, 158
Cal. Rptr. 839 (1979).21 Smith v. Robbins, supra, 276;
see also People ex rel. South Dakota Dept. of Social
Services, 678 N.W.2d 594, 597 (S.D. 2004) (under Rob-
bins, state adopted briefing procedure pursuant to
which counsel concedes lack of arguably meritorious
issues for appeal but discusses only those issues
requested by client, as alternative to Anders); J.
Dugan & A. Moeller, ‘‘Make Way for the ABA: Smith v.
Robbins Clears a Path for Anders Alternatives,’’ 3 J.
App. Prac. & Process 65, 91 (2001) (‘‘states now have
exceptionally wide latitude in regulating the perfor-
mance of appellate counsel in frivolous cases’’).
The United States Supreme Court also has clarified
that the federal constitution does not require that
appointed counsel file an Anders brief before withdraw-
ing from representation in postconviction criminal pro-
ceedings other than an appeal as of right. See, e.g.,
Austin v. United States, 513 U.S. 5, 8, 115 S. Ct. 380,
130 L. Ed. 2d 219 (1994) (discretionary appellate review
of conviction); Pennsylvania v. Finley, supra, 481 U.S.
556–57 (habeas appeals). Although that court has not
directly addressed the issue, this court has held that
Anders also does not apply with respect to a postconvic-
tion motion to correct an illegal sentence; see State v.
Francis, supra, 322 Conn. 265–66; and several of our
sister courts have concluded that the Anders procedure
is not required in the context of appeals from civil
commitment. See J. Frueh, ‘‘The Anders Brief in
Appeals from Civil Commitment,’’ 118 Yale L.J. 272, 277
(2008). In some instances, however, Anders has been
held to apply in other civil contexts. See, e.g., In re
D.A.S., 973 S.W.2d 296, 299 (Tex. 1998) (juvenile delin-
quency appeals).
1
With this background in mind, we turn now to the
issue of whether, in termination cases such as this one,
in which the indigent parent enjoys a constitutional
right to counsel under Lassiter, some procedure similar
to that set forth in Anders is constitutionally required
before appointed counsel, having found no nonfrivolous
ground for appeal, will be permitted to withdraw from
representation. Although our analysis is grounded in
the due process clause of the fourteenth amendment,
similar rationales would independently lead to the same
conclusion under the due process provisions of the
constitution of Connecticut. See footnote 20 of this
opinion.
Three primary considerations lead us to conclude
that due process does not permit the withdrawal of
appointed counsel on the sole basis of counsel’s conclu-
sory statement that he or she was unable to identify
any nonfrivolous grounds for appeal. First, of those
courts that have analyzed the issue as a matter of federal
or state constitutional law,22 a majority have concluded
that some Anders-type procedure is required. See, e.g.,
In re Keller, 138 Ill. App. 3d 746, 747–48, 486 N.E.2d
291 (1985) (Anders applies, and right may be constitu-
tional or statutory); State ex rel. D.A.G., 935 So. 2d
216, 218–19 (La. App.) (Anders applies under federal
constitution, as well as rules of court), review denied,
936 So. 2d 1278 (La. 2006); In re V.E., 417 Pa. Super.
68, 81, 83, 611 A.2d 1267 (1992) (Anders applies under
federal constitution); In re H.E., 312 Mont. 182, 186, 59
P.3d 29 (2002) (Anders applies, but constitutional basis
was unspecified); L.C. v. State, supra, 963 P.2d 763–66
(Anders applies under both Utah and federal constitu-
tions).23 But see Denise H. v. Arizona Dept. of Economic
Security, 193 Ariz. 257, 259–60, 972 P.2d 241 (App. 1998)
(indigent parent has due process and statutory right to
appointed counsel, but counsel has no right to file
Anders brief); In re Sade C., 13 Cal. 4th 952, 985, 920
P.2d 716, 55 Cal. Rptr. 2d 771 (1996) (Anders brief is
not constitutionally required), cert. denied sub nom.
Gregory C. v. Los Angeles County Dept. of Children’s
Services, 519 U.S. 1081, 117 S. Ct. 747, 136 L. Ed. 2d 685
(1997); N.S.H. v. Florida Dept. of Children & Family
Services, 843 So. 2d 898, 903 (Fla.) (same), cert. denied,
540 U.S. 950, 124 S. Ct. 388, 157 L. Ed. 2d 282 (2003).
The second reason why we conclude that a mere
conclusory representation by appointed counsel that
he or she was unable to identify any nonfrivolous
ground for appeal is insufficient to protect an indigent
parent’s due process right to counsel is that most of
the same rationales that require the use of the Anders
procedure in the criminal context apply with equal force
to termination actions. A number of our sister courts
have found this reasoning to be compelling. See, e.g.,
J.K. v. Lee County Dept. of Human Resources, 668
So. 2d 813, 816 (Ala. Civ. App. 1995); Linker-Flores v.
Arkansas Dept. of Human Services, 359 Ark. 131, 139,
194 S.W.3d 739 (2004); People ex rel. South Dakota Dept.
of Social Services, supra, 678 N.W.2d 598; In re D.E.S.,
135 S.W.3d 326, 329 (Tex. App. 2004).
Although it is rare for a diligent attorney to overlook
potentially meritorious grounds for appeal, such over-
sights are not unheard of. See, e.g., Penson v. Ohio,
supra, 488 U.S. 79 (in criminal case, reviewing court
found ‘‘ ‘several arguable claims,’ ’’ one of which was
deemed to be reversible error); Tammy M. v. Dept. of
Child Safety, 242 Ariz. 457, 460–62 and n.4, 397 P.3d
1057 (App. 2017) (in termination of parental rights pro-
ceeding, indigent mother, proceeding pro se after with-
drawal of appellate counsel, identified and ultimately
prevailed on due process claim that counsel failed to
identify). In a criminal matter, it is, first and foremost,
the defendant whose interest it is to ensure that an
erroneous conviction is not sustained on appeal; yet,
in a termination matter, it is not only the parent whose
rights are at stake but also the child, who has a funda-
mental interest in the accuracy of the outcome and the
preservation of family integrity. See, e.g., In re Melody
L., 290 Conn. 131, 157, 962 A.2d 81 (2009), overruled in
part on other grounds by State v. Elson, 311 Conn. 726,
91 A.3d 862 (2014); see also Santosky v. Kramer, supra,
455 U.S. 766–67 (‘‘[The state] shares the parent’s interest
in an accurate and just decision . . . . [T]he [s]tate
registers no gain [toward] its declared goals when it
separates children from the custody of fit parents.’’
[Citations omitted; internal quotation marks omitted.]).
Accordingly, the primary purpose for requiring Anders
briefing and independent judicial review, namely, error
correction, applies with as much force in the context
of a termination proceeding.
The other primary functions of the Anders proce-
dure—assisting the reviewing court in efficiently
reviewing the record and the indigent parent in prepar-
ing for possible self-representation—are also especially
critical in the termination context. Relative to a criminal
trial, a termination proceeding can potentially lead to
the deprivation of a liberty interest under a less strin-
gent standard of proof, with fewer procedural and evi-
dentiary safeguards, without the option of a jury trial,
and on the basis of somewhat amorphous or imprecise
concepts such as the best interest of the child. See In re
V.E., supra, 417 Pa. Super. 83; see also General Statutes
§ 45a-717 (g) (court must find, on basis of clear and
convincing evidence, that termination is in best interest
of child); Practice Book § 32a-2 (a) (termination hear-
ings are civil in nature and informal). For these reasons,
‘‘zealous advocacy of the parent’s cause is of particular
importance in an involuntary termination proceeding.’’
In re V.E., supra, 83.
Third, particularly with respect to that subset of ter-
mination appeals for which the federal constitution
requires the appointment of appellate counsel, we con-
clude that a balancing of the relevant interests weighs
in favor of affording the indigent litigant at least some
of the procedural protections set forth in Anders. As
we discussed, cases in which a parent has a right to
appointed counsel under the fourteenth amendment
will typically be those in which he or she may face
some potential criminal liability, those involving thorny
legal or evidentiary issues, or those in which the parent
has actively asserted his or her parental rights but is
ill equipped to vindicate them as a self-represented
party on appeal. When criminal liability may attach, the
same considerations that require the use of the Anders
procedure in the sixth amendment context are likely
to apply with respect to a civil termination proceeding
as well. When the case involves expert testimony or
complex legal issues, then, especially in light of our
conclusion in part IV B 2 of this opinion that a trial
court may opt to apply safeguards that are more expedi-
tious and less resource intensive than those discussed
in Anders, the benefits of obtaining a second opinion
in the form of some limited judicial review of counsel’s
no merit determination more than offset the potential
costs.24 Finally, in tragic situations such as in the present
case, in which an indigent parent continually tries to
assert her parental rights and to maintain a nourishing
relationship with her child but lacks the mental or emo-
tional competence to do so successfully, fundamental
fairness requires that she be afforded some minimal
procedural protections before a court accepts counsel’s
representation that any appeal would be frivolous and,
therefore, that she must prosecute her appeal on a self-
represented basis.
2
For the foregoing reasons, we conclude that appellate
review counsel may not be permitted to withdraw from
representing an indigent parent who is constitutionally
entitled to appointed counsel in a termination hearing
solely on the basis of counsel’s representation that he
or she was unable to identify any nonfrivolous ground
for appeal. As we discussed, however, the United States
Supreme Court has indicated that the precise proce-
dures discussed in Anders are not constitutionally man-
dated. Rather, states are free to adopt alternative proce-
dures, as long as those procedures adequately safeguard
an indigent litigant’s right to counsel and protect against
the possibility that appointed counsel has incorrectly
determined that any appeal would be frivolous. Smith
v. Robbins, supra, 528 U.S. 265, 272–76.
In the present case, the amici Office of the Chief
Public Defender, American Civil Liberties Union of Con-
necticut, and Center for Children’s Advocacy propose,
and the respondent herself concedes, that something
short of the full Anders procedure may be adequate
to vindicate her right to counsel. In the context of a
termination proceeding, we can conceive of circum-
stances in which a trial court reasonably might conclude
that preparation of a formal Anders brief would repre-
sent a misuse of resources that would serve only to
unnecessarily delay the resolution of the child’s legal
status. See footnote 24 of this opinion.
For instance, a court might determine, in its discre-
tion, that holding a hearing would give the court suffi-
cient opportunity to make an initial determination that
counsel had diligently reviewed the case for potential
appellate issues and would provide an adequate forum
for counsel to present the most promising—or least
meritless—potential appellate issues for the court’s and
the parent’s consideration. At that point, after the court
and the parent have had an opportunity to question
counsel about various possible avenues for appeal, the
court could determine whether written briefing would
be of value.
At a minimum, Robbins requires the following: (1)
the court must conduct a colloquy sufficient to ascertain
that counsel has evaluated all potential grounds for
appeal and has brought the most promising ones to the
attention of the court; a mere representation that, upon
review, no grounds for appeal have been identified is
insufficient; (2) the indigent parent must be afforded
an opportunity to review counsel’s conclusions and to
bring to the court’s attention what he or she believes
are any appealable issues; and (3) the court must reach
its own independent conclusion that any appeal would
be frivolous. See J. Dugan & A. Moeller, supra, 3 J. App.
Prac. & Process 91–92; see also Smith v. Robbins, supra,
528 U.S. 279–81. We believe that, subject to the discre-
tion of the trial court, such a procedure would vindicate
the due process rights of the indigent litigant without
imposing undue financial burdens or delays.
3
In the present case, a review of the record does not
satisfy us that even these minimal procedural protec-
tions were afforded to the respondent. Sexton’s motion
to withdraw was heard and decided by a different court
than that which presided over the termination proceed-
ings. Over the course of the two hearings conducted
on the motion to withdraw, Sexton’s evaluation of the
merits of the case was limited to the following state-
ment: ‘‘Upon our full review of the record, we have
reached the conclusion and—and when I say the full
record, we did ultimately receive the full transcripts
that were missing prior to the time that we needed to
file the appeal, and we have subsequently concluded
that we did not have a nonfrivolous ground [on which]
to . . . proceed.’’
In addition, although Sexton’s brief to the trial court
in connection with the motion to withdraw did include
a short procedural history, that history was tailored and
limited to the purpose of the brief, which was to advise
the court as to whether the appointment of replacement
counsel or the use of the Anders procedure was consti-
tutionally required. At no point does the record indicate
that the court was sufficiently apprised of the facts and
legal issues involved in the case so as to enable it to
perform its own independent review; nor does the
record indicate that the court did in fact form its own
independent judgment that Sexton had accurately
determined that any appeal would be meritless.
Moreover, although Sexton indicated that he had
communicated with the respondent by mail, over the
telephone, and in person, and she represented that he
had answered all of her questions to her satisfaction,
there is no indication in the record whether those com-
munications extended beyond satisfying the require-
ments of Practice Book § 3-10 and explaining what pro-
cedural options the respondent had should the court
permit Sexton to withdraw. Specifically, there is no
indication that the respondent was advised or educated
as to potential legal issues that she might consider pur-
suing on appeal.25 Accordingly, on remand, it will be
necessary for the court, at the least, (1) to conduct a
hearing to verify, on the record, that the respondent
has been advised as to any potential grounds for appeal
and has had the opportunity to question counsel
thereon, and (2) to be satisfied that Sexton has fully
explored potential grounds for appeal and shares his
view that any appeal would be frivolous.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for further proceed-
ings consistent with this opinion.
In this opinion McDONALD and ECKER, Js., con-
curred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** September 27, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Practice Book § 79a-3 (b) provides in relevant part: ‘‘If a trial attorney
who has provided representation to an indigent party through the Division
of Public Defender Services declines to pursue an appeal and the indigent
party expressly wishes to appeal, the trial attorney shall within twenty days
of the decision or judgment simultaneously file with the court before which
the matter was heard a motion for an additional twenty day extension of time
to appeal, a sworn application signed by the indigent party for appointment
of an appellate review attorney and a waiver of fees, costs and expenses,
including the cost of an expedited transcript, and shall immediately request
an expedited transcript from the court reporter in accordance with Section
79a-5, the cost of which shall be paid for by the Division of Public Defender
Services. . . .’’
Practice Book § 79a-3 (c) (1) provides: ‘‘If the appellate review attorney
determines that there is merit to an appeal, that attorney shall file the appeal
in accordance with Section 63-3.’’
Practice Book § 79a-3 (c) (2) provides: ‘‘If the reviewing attorney deter-
mines that there is no merit to an appeal, that attorney shall make this
decision known to the judicial authority, to the party and to the Division
of Public Defender Services at the earliest possible moment. The reviewing
attorney shall inform the party, by letter, of the balance of the time remaining
to appeal as a self-represented party or to secure counsel who may file an
appearance to represent the party on appeal at the party’s own expense. A
copy of the letter shall be sent to the clerk for juvenile matters forthwith.’’
2
‘‘In Anders, the United States Supreme Court outlined a procedure that
is constitutionally required when, on direct appeal, appointed counsel con-
cludes that an indigent defendant’s case is wholly frivolous and wishes to
withdraw from representation. . . . Under Anders, before appointed coun-
sel may withdraw, he or she must provide the court and the defendant with
a brief outlining anything in the record that may support the appeal, and
the defendant must be given time to raise any additional relevant points.
. . . Thereafter, the court, having conducted its own independent review
of the entire record of the case, may allow counsel to withdraw if it agrees
with counsel’s conclusion that the appeal is entirely without merit.’’ (Cita-
tions omitted.) State v. Francis, 322 Conn. 247, 250 n.3, 140 A.3d 927 (2016).
3
Harold H. has not contested the judgment terminating his parental rights
and is not a party to the present appeal. We hereinafter refer to Sonya B.
as the respondent and to Harold H. by name.
4
Practice Book § 3-10 sets forth the procedures and requirements that
apply when an attorney wishes to withdraw an appearance.
5
Although the meaning of Practice Book § 79a-3 (c) is central to the
respondent’s claim that her appeal was improperly dismissed, neither party
directly addresses the issue of whether the Appellate Court properly con-
strued that provision. Although the respondent argues that the rule makes
no provision for a scenario such as the one involved in the present case,
she nevertheless appears to assume, arguendo, that the Appellate Court
properly construed Practice Book § 79a-3 (c). She argues that dismissing
her appeal pursuant to that provision was improper because (1) it abridged
her broader substantive right to counsel, as manifested in General Statutes
§§ 45a-716 (b), 45a-717, 46b-135 (b), 46b-136 and 51-296a (b), and (2) it
violated her equal protection rights insofar as it treats her differently from
similarly situated, nonindigent parents, who are not barred from filing an
appeal prior to an assessment of the merits thereof. See Practice Book § 63-
4 (a) (1) (appellant must file preliminary statement of appellate issues within
ten days of filing appeal); Practice Book § 79a-2 (establishing deadlines for
filing appeal).
The commissioner, by contrast, contends that the Appellate Court cor-
rectly construed and applied Practice Book § 79a-3 (c). Her argument for
that position is conclusory, however, and she makes no attempt either to
address the respondent’s arguments or to defend the Appellate Court’s
dismissal of the amended appeal on this ground.
In order to assess whether the Appellate Court properly dismissed the
respondent’s amended appeal pursuant to Practice Book § 79a-3 (c), we
first are required to construe that rule. Because we conclude that the Appel-
late Court incorrectly construed Practice Book § 79a-3 (c) and that the rule
did not require the dismissal of the respondent’s amended appeal, we need
not consider the respondent’s arguments that construing the provision in
that manner abridged her statutory and constitutional rights. In part III of
this opinion, however, we do address a different equal protection argument
that the respondent raised and that is likely to arise again on remand.
6
Because the Appellate Court dismissed the amended appeal by way of
summary order, without a written decision, and because the commissioner
does not actively defend or present a rationale to support this aspect of the
Appellate Court’s order, our discussion of the basis for that court’s order
is necessarily somewhat speculative.
7
The amici Office of the Chief Public Defender, American Civil Liberties
Union of Connecticut, and Center for Children’s Advocacy represent that,
in their experience, the Appellate Court never has rejected a motion to file
a late appeal under such circumstances.
8
Like our interpretation of statutes, our interpretation of the rules of
practice presents an issue of law subject to plenary review. E.g., State v.
Jones, 314 Conn. 410, 418, 102 A.3d 694 (2014).
9
Ordinarily, we do not decide constitutional issues when resolving those
issues is not necessary to dispose of the case before us. See, e.g., St. Paul
Travelers Cos. v. Kuehl, 299 Conn. 800, 818, 12 A.3d 852 (2011); see also
Thalheim v. Greenwich, 256 Conn. 628, 639, 775 A.2d 947 (2001) (same
principles apply when construing rules of practice). We have made an excep-
tion to this rule, however, when an issue with constitutional implications
that has been presented and briefed by the parties is likely to arise on
remand. See, e.g., State v. Santiago, 305 Conn. 101, 293–94, 49 A.3d 566
(2012), superseded on other grounds, 318 Conn. 1, 122 A.3d 1 (2015).
In the present case, issues at the core of the respondent’s second equal
protection challenge; see footnote 5 of this opinion; are likely to arise again
on remand. The respondent contends that Practice Book § 79a-3 is facially
unconstitutional because, in every case in which an appellate review attorney
is appointed to assist an indigent parent, that attorney is permitted to file
an appeal only upon a determination that the appeal meets a higher standard
(potential merit) than the standard that applies to nonindigent parents (non-
frivolousness). On remand, the trial court, in evaluating Sexton’s arguments
and deciding whether to allow Sexton to withdraw, will need to know
whether the respondent is correct that a different legal standard governs
an indigent party’s appeal from a termination of parental rights. We believe
that the present context provides the most appropriate occasion to resolve
this issue.
10
Under both the state and federal constitutions, a third, intermediate
level of scrutiny applies to certain quasi-suspect classifications and
important liberty interests. See, e.g., Kerrigan v. Commissioner of Public
Health, 289 Conn. 135, 160–61, 957 A.2d 407 (2008).
11
See, e.g., Black’s Law Dictionary (10th Ed. 2014) p. 1139 (defining ‘‘meri-
torious’’ as, among other things, ‘‘worthy of legal victory’’).
12
See, e.g., Linker-Flores v. Arkansas Dept. of Human Services, 359 Ark.
131, 141, 194 S.W.3d 739 (2004) (when reviewing counsel can find no issue
of arguable merit, court may deem appeal frivolous); A.C. v. Cabinet for
Health & Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012) (‘‘[an] appeal
[that] lacks any meritorious issues [that] might support the appeal . . . is
. . . frivolous’’); State ex rel. D.A.G., 935 So. 2d 216, 219 (La. App.) (‘‘should
counsel find no valid, [good faith, i.e., nonfrivolous] grounds for appeal after
conscientious examination of the record, counsel should so advise [the]
court and request permission to withdraw’’), review denied, 936 So. 2d 1278
(La. 2006); In re D.E.S., 135 S.W.3d 326, 330 (Tex. App. 2004) (equating
‘‘wholly frivolous’’ and ‘‘without merit’’). But see L.C. v. State, 963 P.2d 761,
765 (Utah App. 1998) (distinguishing meritless from frivolous appeals), cert.
denied sub nom. D.C. v. State, 982 P.2d 88 (Utah 1999).
13
The Appellate Court, answering this question in the negative in the
present case, was bound by In re Isaiah J., 140 Conn. App. 626, 59 A.3d
892, cert. denied, 308 Conn. 926, 64 A.3d 333, cert. denied sub nom. Megan
J. v. Katz, 571 U.S. 924, 134 S. Ct. 317, 187 L. Ed. 2d 224 (2013). In that
case, a different panel of the Appellate Court, relying on the decision of
this court in State v. Anonymous, 179 Conn. 155, 425 A.2d 939 (1979),
concluded that ‘‘[a] parent’s right to effective assistance of counsel in a
termination of parental rights proceeding is not rooted in the federal or
state constitutions.’’ In re Isaiah J., supra, 640. In Anonymous, however,
we concluded only that the sixth amendment right to the assistance of
counsel ‘‘[i]n all criminal prosecutions’’; U.S. Const., amend. VI; and the
corresponding provision of the state constitution; see Conn. Const., art. I,
§ 8; do not extend to a parent in a civil termination of parental rights hearing.
State v. Anonymous, supra, 159. We did not address in that case, which
was decided prior to Lassiter v. Dept. of Social Services, 452 U.S. 18, 101
S. Ct. 2153, 68 L. Ed. 2d 640 (1981), the issue presented in the present action,
namely, whether the due process clause of the fourteenth amendment to
the federal constitution, or the civil due process clause of the constitution
of Connecticut; see Conn. Const., art. I, § 10; affords such a right. That
question has yet to be resolved by this court.
14
The court discussed, for example, the parent’s ‘‘commanding’’ interest
in ‘‘the accuracy and justice of the decision to terminate his or her parental
status’’; Lassiter v. Dept. of Social Services, supra, 452 U.S. 27; the fact that
the state shares those interests, by virtue of its own ‘‘urgent interest’’ in the
welfare of the child; id.; the relative insignificance of the state’s pecuniary
interests in the process; id., 28; the fact that parents involved in termination
hearings ‘‘are likely to be people with little education, who have had uncom-
mon difficulty in dealing with life, and who are, at the hearing, thrust into
a distressing and disorienting situation’’; id., 30; and the fact that most state
courts have required the appointment of counsel for indigent parents at
termination proceedings. Id.
15
Other courts have construed the Lassiter factors somewhat more
broadly. The Tennessee Court of Appeals, for example, looks to the following
seven factors: ‘‘(1) whether expert medical and/or psychiatric testimony is
presented at the hearing; (2) whether the parents have had uncommon
difficulty in dealing with life and life situations; (3) whether the parents are
thrust into a distressing and disorienting situation at the hearing; (4) the
difficulty and complexity of the issues and procedures; (5) the possibility
of criminal self-incrimination; (6) the educational background of the parents;
and (7) the permanency of potential deprivation of the child in question.’’
State ex rel. T.H. v. Min, 802 S.W.2d 625, 627 (Tenn. App. 1990). We would
arrive at the same destination were we to follow that path.
16
For purposes of brevity, rather than retracing the entire Mathews balanc-
ing analysis that the court conducted in Lassiter, as adapted to the facts
of the present case, we focus our discussion on the handful of factors and
considerations that the court in Lassiter identified as dispositive and on
whether those factors would tip the scale differently in the present case.
Accordingly, we do not discuss at length considerations such as, on the one
hand, a parent’s fundamental interest in ‘‘the companionship, care, custody,
and management of his or her children’’; (internal quotation marks omitted)
Lassiter v. Dept. of Social Services, supra, 452 U.S. 27; or, on the other
hand, the state’s interest in assessing and furthering the best interests of
the child in the most efficient and economical manner possible, both of
which interests will be evident in more or less every termination proceeding.
See id., 27–28. We emphasize, however, that Mathews remains the governing,
overarching test.
For this reason, we disagree with Justice Mullins when he alleges in his
concurring and dissenting opinion that ‘‘the majority [does] not consider
the interests of the child . . . .’’ On the contrary, our analysis, which incor-
porates Lassiter’s full Mathews analysis, takes the child’s interests into
account, albeit implicitly. Specifically, as Lassiter and its progeny explain,
the child invariably will have an interest in an accurate determination as
to whether his or her parent should remain as a parent. Anders is designed
to ensure the accuracy of that determination. Moreover, in any particular
termination case, any possible delay attendant to the limited procedural
safeguards that due process requires; see part IV B 2 of this opinion; is
likely to be de minimis and will be far outweighed by the shared interest
of the parent and the child in an accurate determination.
17
We recognize that Lassiter dealt with the issue of whether trial counsel
should be appointed and that some of the factors that we have been dis-
cussing, such as potential criminal liability, are arguably less relevant at the
appellate level. Nevertheless, our sister courts, often as a matter of state
constitutional or statutory law, have recognized the importance of the assis-
tance of counsel to effectively present an appeal from a termination of
parental rights, given the complexities and intricacies of appellate practice.
See, e.g., Reist v. Bay County Circuit Judge, 396 Mich. 326, 348–49, 241
N.W.2d 55 (1976), overruled in part on other grounds by Lassiter v. Dept.
of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); State
ex rel. Heller v. Miller, 61 Ohio St. 2d 6, 13–14, 399 N.E.2d 66 (1980), overruled
in part on other grounds by Lassiter v. Dept. of Social Services, 452 U.S.
18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); In re Welfare of Luscier, 84 Wash.
2d 135, 138, 524 P.2d 906 (1974), overruled in part on other grounds by
Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed.
2d 640 (1981); see also K.P.B. v. D.C.A., 685 So. 2d 750, 752 (Ala. Civ. App.
1996) (recognizing indigent parent’s right to appointed counsel in termina-
tion appeals under Alabama constitution); In re H.E., 312 Mont. 182, 186,
59 P.3d 29 (2002) (suggesting that indigent parent has constitutional right
to appointed counsel in termination appeals but not specifying whether
right is based on federal or state constitution). Even with respect to potential
criminal liability, there is always the prospect that a party compelled to
represent himself or herself on appeal will be required to address issues
related to his or her alleged criminal conduct.
18
Counsel also represented to the trial court that the respondent, who is
incarcerated, has limited access to legal materials, a law library, or a
telephone.
19
We emphasize that Lassiter and its progeny recognize a constitutional
right to counsel in the civil context only in termination of parental rights
actions and, indeed, only in a very limited subset of such cases. Our decision
today should not be read to expand the scope of that right.
20
It bears noting, however, that the respondent offers several facially
plausible arguments as to why the state constitution confers broader rights
in this respect. She notes, among other things, that (1) it already is well
established that the due process clauses of our state constitution have, in
certain contexts, a broader meaning and confer greater protections than do
their federal counterparts; see, e.g., State v. Morales, 232 Conn. 707, 717,
657 A.2d 585 (1995); Fasulo v. Arafeh, 173 Conn. 473, 475, 378 A.2d 553
(1977); (2) the open courts provision contained in article first, § 10, which
has been identified as grounding a right to state supported counsel for
indigent paternity defendants; see Lavertue v. Niman, 196 Conn. 403, 412,
493 A.2d 213 (1985); see also W. Horton, The Connecticut State Constitution
(2d Ed. 2012) p. 79; has no direct counterpart in the federal constitution; and
(3) several of our sister courts have concluded that their state constitutions
independently confer a right to counsel for indigent parents in termination
proceedings. See, e.g., K.P.B. v. D.C.A., 685 So. 2d 750, 752 (Ala. Civ. App.
1996) (Alabama Court of Civil Appeals recognized right under due process
clause of Alabama constitution); In re K.L.J., 813 P.2d 276, 278, 283–84
(Alaska 1991) (holding that Alaska constitution confers right and noting
‘‘the growing number of jurisdictions [that] have held that the right to counsel
in termination proceedings exists under a state constitution’’); In re Welfare
of Hall, supra, 99 Wash. 2d 846 (implying that right derives from state consti-
tution).
21
Under Wende, appointed counsel, ‘‘upon concluding that an appeal
would be frivolous, files a brief with the appellate court that summarizes
the procedural and factual history of the case, with citations [to] the record.
He also attests that he has reviewed the record, explained his evaluation
of the case to his client, provided the client with a copy of the brief, and
informed the client of his right to file a pro se supplemental brief. He further
requests that the court independently examine the record for arguable issues.
Unlike under the Anders procedure, counsel following Wende neither explic-
itly states that his review has led him to conclude that an appeal would be
frivolous . . . although that is considered implicit . . . nor requests leave
to withdraw. Instead, he is silent on the merits of the case and expresses his
availability to brief any issues on which the court might desire briefing. . . .
‘‘The appellate court, upon receiving a Wende brief, must conduct a review
of the entire record, regardless of whether the defendant has filed a pro
se brief.’’ (Citations omitted; internal quotation marks omitted.) Smith v.
Robbins, supra, 528 U.S. 265.
22
A number of other courts have grounded a right to an Anders-type
procedure in a state statutory right to counsel. See, e.g., A.C. v. Cabinet for
Health & Family Services, 362 S.W.3d 361, 370 (Ky. App. 2012); People ex
rel. South Dakota Dept. of Social Services, supra, 678 N.W.2d 598; In re
K.S.M., 61 S.W.3d 632, 633 (Tex. App. 2001).
23
We note that some of the cited cases address the precise issue presented
in this case, namely, whether an Anders procedure is required to satisfy
an indigent litigant’s due process rights, whereas others address whether
appointed counsel is ethically obligated to continue to prosecute a frivolous
appeal or is permitted to withdraw upon satisfying the Anders requirements.
In other words, some cases ask whether Anders is necessary before counsel
may withdraw, whereas others ask whether it is sufficient.
24
Some courts and commentators have argued that, especially in the
context of a termination proceeding, in which it is important that children
are provided with some semblance of stability and closure in as timely a
manner as justice permits; see In re Davonta V., 285 Conn. 483, 489–92,
494–95, 940 A.2d 733 (2008); the use of a formal Anders procedure represents
an unnecessary delay. See, e.g., N.S.H. v. Florida Dept. of Children & Family
Services, supra, 843 So. 2d 902; see also C. Yee, Comment, ‘‘The Anders
Brief and the Idaho Rule: It Is Time for Idaho to Reevaluate Criminal Appeals
After Rejecting the Anders Procedure,’’ 39 Idaho L. Rev. 143, 152–53 (2002).
But see A.C. v. Cabinet for Health & Family Services, 362 S.W.3d 361, 369
(Ky. App. 2012) (Anders briefing entails ‘‘insignificant’’ delay of at most
thirty days and typically will expedite reviewing court’s work).
25
We emphasize that we do not in any way fault Sexton for these lacunae
in the record. Sexton sought the opportunity to satisfy all of the Anders
requirements, and it may well be that he either educated the respondent as
to the relative merits of different potential appellate issues or reasonably
concluded that, in light of the fact that she had been adjudicated incompe-
tent, such education could serve no useful purpose. Our point is merely
that, in light of the manner in which the motion to withdraw was disposed
of, we are unable to confirm that the minimal requirements of due process
were satisfied.