In re Ceana R.

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IN RE CEANA R. ET AL.*
(AC 40134)
Alvord, Kahn and Bear, Js.
Syllabus
The respondent father appealed to this court from the judgments of the
trial court adjudicating his minor children abused and neglected. Three
of the father’s previously appointed attorneys were permitted to with-
draw as counsel. Prior to approving the appointment of a fourth attorney,
the trial court warned the father that if that attorney was later permitted
to withdraw, he would not be appointed a fifth attorney and he would
have to represent himself or hire outside counsel. During a subsequent
hearing, the court approved the appointment of the father’s fourth attor-
ney, C, and issued the same warning to the father. A couple weeks after
being appointed as counsel for the father, C filed a motion to withdraw
her appearance, stating that it was impossible to establish an attorney-
client relationship given the father’s unreasonable demands, and the
motion was denied by the trial court. During the hearing on C’s motion,
as well as during a subsequent hearing, the father was again warned by
the court that he should not expect the appointment of a fifth attorney
if C withdrew as counsel. On the first day of trial, the father advised
the court that he had filed a grievance against C and requested permission
for C to withdraw as counsel, which was denied by the court. Upon a
request for reconsideration by C, however, the court permitted C to
withdraw as counsel, stating that it considered the filing of the father’s
grievance as an act terminating C’s representation. Thereafter, the court
concluded that the father had knowingly and voluntarily waived his
right to appointed counsel by his conduct, and it declined to continue
the trial to another date. After the father subsequently failed to appear
on a set trial date, the trial court entered a default against the respondent
father and adjudicated the minor children abused and neglected. This
appeal followed. Held:
1. The trial court did not abuse its discretion in permitting C to withdraw
as counsel, as the court properly determined that a de facto termination
of the attorney-client relationship occurred based on the respondent
father’s filing of a grievance against C in the juvenile proceeding: a
parent has a statutory, not constitutional, right to appointed counsel in
abuse and neglect proceedings, and the record demonstrated that the
relationship between the father and C had been the subject of a motion
to withdraw filed by C before trial commenced, that the father had
inquired of the court whether he would be permitted to release C from
representing him if some misconduct had occurred, and that, after learn-
ing of the grievance filed by the father, the court asked for a copy of
the grievance, inquired at length as to why the father believed that C
had violated her professional responsibilities, and asked C whether she
could continue to represent the father, to which C replied that she could
not; furthermore, given that the father had been warned numerous times
that he would not be appointed a fifth attorney if C was permitted to
withdraw, the court did not abuse its discretion by failing to issue
another warning to that effect or in permitting C to withdrawn from
representing the father.
2. The trial court did not abuse its discretion in finding that the respondent
father had waived his statutory right to appointed counsel by his conduct;
the father previously had been appointed four attorneys, all of whom
were removed from the case due to an attorney-client conflict, the father
requested that C be removed despite repeated warnings from the court
that it would not provide him with a fifth attorney, he was aware that
the withdrawal of C would mean that he would represent himself, as
he had been expressly informed of that consequence by two different
judges on at least four previous occasions, and he had a general under-
standing of legal proceedings and indicated that he understood the
hazards associated with representing himself.
Argued September 7—officially released October 26, 2017**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor children
neglected, brought to the Superior Court in the judicial
district of New Britain, Juvenile Matters, where the
court, Frazzini, J., granted the motion of the respon-
dent father’s appointed counsel to withdraw representa-
tion; thereafter, the matter was tried to the court;
judgments adjudicating the minor children neglected,
from which the respondent father appealed to this
court. Affirmed.
John C. Drapp III, assigned counsel, for the appellant
(respondent father).
Daniel M. Salton, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Opinion
ALVORD, J. In this appeal, we are called upon to
determine whether a parent in a neglect and abuse
proceeding de facto terminated his court-appointed
lawyer and whether that parent waived by his conduct
his right to a fifth appointed lawyer. The respondent
father, Pablo R., appeals from the judgments of the trial
court finding that his two daughters, C.R.1 and A.R.,
were neglected and abused.2 On appeal, the respondent
claims that the court abused its discretion in (1) permit-
ting his appointed counsel to withdraw and (2) finding
that he had waived his right to appointed counsel by
conduct.3 We affirm the judgments of the trial court.
The record discloses the following procedural his-
tory. In March, 2016, the petitioner, the Commissioner
of Children and Families (commissioner), filed two
motions for temporary custody and two neglect peti-
tions, one for each of the respondent’s children, C.R.
and A.R. The petitions alleged that C.R. and A.R. were
neglected and abused.4
Attorney Roger Chiasson was appointed to represent
the respondent as his counsel and filed an appearance
on March 10, 2016. Six weeks later, Attorney Chiasson
filed a motion to withdraw his appearance, representing
that the attorney-client relationship had broken down
in that the respondent had sought advice from another
attorney and had expressed that he was not happy with
the advice and counsel being given by Attorney Chias-
son. The court, Frazzini, J., heard argument on the
motion on May 11. Attorney Chiasson represented that
the respondent had engaged in conversations with other
lawyers, and, based on those conversations, had
expressed to others that Attorney Chiasson may have
been misleading him. The respondent objected to the
withdrawal and claimed that this was the first time he
was hearing of Attorney Chiasson’s dissatisfaction with
the relationship. The respondent claimed that he had
spoken to other people for advice but denied that he
had discussed legal matters. The court granted the
motion and ordered that new counsel be appointed.
Attorney Elizabeth Potts Berman was appointed as
the respondent’s second counsel.5 Shortly thereafter,
Attorney Berman filed a motion to withdraw her appear-
ance, representing that the attorney-client relationship
had broken down irretrievably. During argument on
July 20, the respondent objected to the withdrawal and
again represented to the court that this was the first
time he was hearing that ‘‘this relationship had any
problem.’’ The court, Abery-Wetstone, J., granted the
motion to withdraw and ordered that new counsel be
appointed. However, Attorney Christine Rapillo from
the Office of Public Defender informed the court that
‘‘because a number of the lawyers from New Britain
have covered the case . . . we may have to look out-
side the New Britain panel to get someone . . . .’’6
Attorney Joshua Michtom, an employee of the public
defender’s office, was appointed as the respondent’s
third counsel and filed his appearance on July 27, 2016.
Less than two weeks later, on August 5, Attorney Mich-
tom filed a motion to withdraw his appearance, in which
he represented that the respondent had yelled at him
after he refused to file certain motions that he deemed
frivolous, unethical, and counterproductive. Attorney
Michtom further represented that the respondent had
registered a formal complaint against him with the
Office of the Chief Public Defender and had indicated
that he would like Attorney Michtom to withdraw on
the basis that communication had broken down. Lastly,
Attorney Michtom expressed a willingness to continue
to represent the respondent, but noted that communica-
tion in the future might be impossible based on the
respondent’s ‘‘having indicated unequivocally’’ that he
desired Attorney Michtom to withdraw. During a hear-
ing on the motion on August 18, the respondent asserted
a number of reasons in support of the request to with-
draw, including that Attorney Michtom had been dis-
honest to the court and to the respondent, and that
Attorney Michtom had represented him ‘‘without any
understanding of the case.’’ Attorney Rapillo again
appeared, stating that there were no panel attorneys
left in New Britain, and that the public defender’s office
could not, under its contracts with individual attorneys,
require an attorney to accept an appointment in another
jurisdiction. The court, Abery-Wetstone, J., requested
that the public defender’s office appoint another attor-
ney for the respondent.
The court then issued the following warning to the
respondent: ‘‘You understand . . . this is your last
chance. If you have a fight with the next attorney, you’re
not going to be able to get one.’’ The court further
cautioned: ‘‘Understand this is it. We don’t have any-
body else. You’ll get one more lawyer. . . . If you have
a disagreement with this next lawyer or this next lawyer
feels abused or maligned by you, then you’re going to
have to represent yourself.’’ The court instructed the
parties to return on September 1, 2016, and stated that
‘‘I would like Mr. [R.] and new counsel here, because
if he doesn’t get new counsel, he’s going to be instructed
that he either has to file a pro se appearance or he has
to hire counsel on his own.’’
Prior to September 1, 2016, Attorney Trudy Condio,
a panel attorney from the Hartford Juvenile Court, was
contacted by the public defender’s office regarding
appointment as the respondent’s fourth counsel. At the
hearing on September 1, which Attorney Condio had
previously stated that she could not attend, the respon-
dent indicated that he had not yet made a decision as
to whether he wished to be represented by Attorney
Condio, that he had been trying to set up a meeting
with her, and that she did not have a copy of the file
yet. The court, Abery-Wetstone, J., approved the
appointment of Attorney Condio, stating that unless the
court received a motion to withdraw from Attorney
Condio, she would represent the respondent. The court
warned that Attorney Rapillo ‘‘indicated that she was
going to have a hard time replacing Attorney Michtom
and she has provided counsel for Mr. [R.]. If you are
dissatisfied with Ms. Condio . . . you are going to have
to either file a pro se appearance indicating you’re going
to represent yourself or you’re going to have to hire
private counsel, because Ms. Rapillo represented to the
court that she had no one else and this was the last
person, if even she could get Ms. Condio.’’7
On September 16, 2016, Attorney Condio filed a
motion for continuance and a motion to withdraw her
appearance stating that it was impossible to establish an
attorney-client relationship based on the respondent’s
unreasonable demands. Attorney Condio represented
that although she had communicated with the respon-
dent on four occasions, the respondent refused to meet
with her before 5 p.m. and refused to meet with her
without a third party present. Moreover, she claimed
that the respondent insisted on meeting at his home.
On September 21, 2016, the court, Abery-Wetstone,
J., heard argument on Attorney Condio’s motions. With
respect to the respondent’s insistence on a third party
being present during attorney-client meetings, the
respondent explained that he always had a third party
present for his protection during his meetings with pre-
vious counsel and that he wanted to waive the attorney-
client privilege. He also informed the court that he had
a third party monitoring phone conversations ‘‘so there
wouldn’t be any issue of the he said/she said . . . .’’
Regarding the respondent’s unwillingness to meet
before 5 p.m., the respondent stated that although he
was unemployed, he was busy with other personal,
medical responsibilities that prevented him from meet-
ing with Attorney Condio during business hours. The
court ordered the respondent to meet with Attorney
Condio with no one else present, between the hours of
9 a.m. and 5 p.m. on weekdays, and denied the motions
for continuance and to withdraw.8 After further argu-
ment, the court asked the respondent: ‘‘Mr. [R.], do you
wish to keep this attorney or do you wish to represent
yourself?’’ The court further inquired of the respondent
whether he understood the potential danger of repre-
senting himself while his application for accelerated
rehabilitation was pending in criminal court, to which
the respondent replied, ‘‘Yes, I—that’s why I told the
court back in September 1, 2016, that I was not qualified
to represent myself . . . .’’ The court then reminded
the respondent that he previously had been warned: ‘‘If
you couldn’t get along with [Attorney Condio], you were
going to have represent yourself because I’m not going
to give you a fifth attorney.’’
Both parents were before the court for a hearing on
October 14, 2016. On that date, the court, Frazzini,
J., permitted the mother’s counsel to withdraw from
representation based on the mother’s filing of a griev-
ance against that lawyer. The court rescheduled the
trial, and addressed the respondent and the mother:
‘‘I’m telling you both right now, don’t expect or believe
that if you obtain a new lawyer by hiring them, or if
you—if your lawyer seeks to withdraw, that a new law-
yer would be appointed for you. Do not anticipate that;
do not expect that. It would not happen.’’ The respon-
dent asked: ‘‘So Your Honor, so if we have an issue
with misconduct or some issue that the lawyer violates
Connecticut statute that we won’t be allowed to obtain
a new lawyer—a counsel? Is that my understanding?’’9
The court, stating that the respondent had a legal right
to file a grievance, asked the respondent to present the
grievance to the court first so the court could review
the situation and determine whether the facts showed
that the attorney had committed an act or failure to act
that would necessitate withdrawal.
On the first day of trial, November 28, 2016, the
respondent advised the court, Frazzini, J., that he had
filed a grievance against Attorney Condio because of
failed communication and a lack of representation and
stated: ‘‘I don’t think it’s appropriate that Ms. Condio
now go forward in representing me or my—or my best
interests . . . .’’ After hearing argument from the
respondent and Attorney Condio, both advocating for
withdrawal, the court stated that it had not found excep-
tional circumstances to justify discharging counsel at
the last minute, which would cause a delay in trial, and
ordered that evidence proceed. Attorney Condio noted
further objection, and trial commenced. After the testi-
mony of the first witness, Attorney Condio orally moved
the court to reconsider, stating that the public defend-
er’s office had expressed concern that her continued
representation could create further liability. Counsel for
the Department of Children and Families (department)
and counsel for the children both agreed that Attorney
Condio should be permitted to withdraw, but both
expressed concern that the trial should not be contin-
ued. The court then stated that it would ‘‘take the filing
of the grievance as a—as an act terminating Attorney
Condio’s representation and allow you to withdraw.’’
After permitting Attorney Condio to withdraw, the
court turned to the question of whether the respondent
had waived his right to an appointed attorney by con-
duct. The respondent told the court that he was not
stating that he was capable of representing himself, and
he stated that he was ‘‘not an attorney’’ and was not
‘‘familiar with this process.’’ The court continued the
matter until the next morning and ordered the parties
to file briefs addressing whether the respondent had
waived his right to appointed counsel by virtue of his
conduct and, if so, whether the trial should proceed.
The next morning, the court, Frazzini, J., heard argu-
ment from the department’s counsel and the respondent
as to whether the respondent had waived his right to
appointed counsel.10 The respondent stated: ‘‘[A]t no
point did I ever indicate to this court or I’m telling you
that now do I have the education or ability, or because
I am indigent, to basically represent myself or seek
outside counsel.’’ The court concluded that the respon-
dent had knowingly and voluntarily waived his right to
appointed counsel by his conduct, and it declined to
continue the trial to another date. The department then
proceeded to call its witnesses. On the first day of trial,
in the presence of the respondent, the court had set a
number of court dates, including January 3, 2017. The
respondent did not appear on January 3, and the trial
continued. The court, Frazzini, J., entered a default
against the respondent and adjudicated C.R. and A.R.
neglected and abused as alleged in the petitions. The
court heard evidence as to disposition.
On January 11, 2017, the court issued its written mem-
orandum of decision committing the children to the
custody of the commissioner until such time as a sub-
sidy to the foster parent could be approved, at which
time guardianship of the children would be transferred.
This appeal followed.
I
The respondent first claims that the court abused its
discretion in permitting the respondent’s fourth attor-
ney to withdraw from representing him. Specifically,
the respondent contends that his filing of a grievance
against Attorney Condio did not require withdrawal
from representation, especially given that the respon-
dent’s complaints were ‘‘vague and nothing more than
disagreements with strategy and tactics.’’ We disagree
that the trial court abused its discretion in permitting
Attorney Condio to withdraw.
We begin our analysis by setting forth principles sur-
rounding the attorney-client relationship. ‘‘An attorney-
client relationship is established when the advice and
assistance of the attorney is sought and received in
matters pertinent to his profession.’’ (Internal quotation
marks omitted.) DiStefano v. Milardo, 276 Conn. 416,
422, 886 A.2d 415 (2005). With respect to termination
of the relationship, our Supreme Court has stated: ‘‘The
formal termination of the relationship occurs when the
attorney is discharged by the client, the matter for
which the attorney was hired comes to a conclusion,
or a court grants the attorney’s motion to withdraw
from the representation. A de facto termination occurs
if the client takes a step that unequivocally indicates
that he has ceased relying on his attorney’s professional
judgment in protecting his legal interests, such as hiring
a second attorney to consider a possible malpractice
claim or filing a grievance against the attorney.’’
(Emphasis added; footnote omitted.) DeLeo v. Nus-
baum, 263 Conn. 588, 597–98, 821 A.2d 744 (2003); see
also Straw Pond Associates, LLC v. Fitzpatrick, Mari-
ano & Santos, P.C., 167 Conn. App. 691, 719, 145 A.3d
292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
In the present case, the court concluded that the
respondent’s filing of a grievance constituted a de facto
termination of the attorney-client relationship pursuant
to DeLeo. In DeLeo, our Supreme Court adopted the
continuous representation doctrine, pursuant to which
the statute of limitations applicable to legal malpractice
claims may be tolled when the plaintiff can show: ‘‘(1)
that the defendant continued to represent him with
regard to the same underlying matter; and (2) either
that the plaintiff did not know of the alleged malpractice
or that the attorney could still mitigate the harm alleg-
edly caused by that malpractice during the continued
representation period.’’ (Emphasis omitted; footnote
omitted.) DeLeo v. Nusbaum, supra, 263 Conn. 597. The
first prong of the test prompted our Supreme Court to
define termination of the attorney-client relationship,
which it described as including de facto termination
through the filing of a grievance against the attorney.
Id., 597–98.
The respondent argues that the DeLeo court’s defini-
tion of termination of the attorney-client relationship
is limited to circumstances where the continuous repre-
sentation doctrine is at issue. In so arguing, he points
to the DeLeo court’s statement that ‘‘[o]nce such a step
has been taken, representation may not be said to con-
tinue for purposes of the continuous representation
doctrine.’’ Id., 598. The court continued: ‘‘A client who
has taken such a concrete step may not invoke this
doctrine, because such actions clearly indicate that the
client no longer is relying on his attorney’s professional
judgment but instead intentionally has adopted a clearly
adversarial relationship toward the attorney. Thus, once
such a step has been taken, representation does not
continue for purposes of the continuous representation
doctrine.’’ Id. We agree that DeLeo elucidated the termi-
nation of an attorney-client relationship in the context
of continuous representation. However, this court finds
that it was within the trial court’s discretion to use
DeLeo as guidance in its determination that a de facto
termination occurred based on the respondent’s filing
of a grievance against his appointed counsel in a juve-
nile proceeding.
Although our appellate courts have not had occasion
to consider whether de facto termination based on the
filing of a grievance extends beyond the continuous
representation doctrine, recently, this court in Straw
Pond Associates, LLC v. Fitzpatrick, Mariano & San-
tos, P.C., supra, 167 Conn. App. 719, described the
DeLeo framework as ‘‘instructive in that it defines what
is meant by legal representation.’’ Moreover, although
not binding on our analysis, we note that the Superior
Court has cited to DeLeo’s formal and de facto methods
of termination in the context of determining the date
representation terminated for purposes of a conflict of
interest analysis under rule 1.7 of the Rules of Profes-
sional Conduct. See Sullivan Construction Co., LLC v.
Seven Bridges Foundation, Inc., Superior Court, judi-
cial district of Stamford-Norwalk, Docket No. CV-10-
6005404-S (February 22, 2011) (51 Conn. L. Rptr. 517,
520–21).
The respondent relies solely upon two cases in sup-
port of his contention that the court abused its discre-
tion in permitting Attorney Condio’s withdrawal. Both
cases addressed whether a conflict of interest posed
by the filing of a grievance was sufficient to prove
prejudice for purposes of determining whether coun-
sel’s assistance was rendered ineffective. See State v.
Vega, 259 Conn. 374, 388–91, 788 A.2d 1221, cert. denied,
537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002);
Morgan v. Commissioner of Correction, 87 Conn. App.
126, 127–28, 866 A.2d 649 (2005). In Vega, the court
considered in a criminal case whether the defendant
had been denied effective assistance of counsel in viola-
tion of the sixth amendment to the United States consti-
tution as a result of the trial court’s denial of counsel’s
motion to withdraw after the defendant had filed a
grievance against him. State v. Vega, supra, 377, 380.
The court noted that ‘‘the filing of a grievance in and
of itself is insufficient to establish a violation of a defen-
dant’s sixth amendment rights.’’ (Emphasis added.)
Id., 388. This court, in Morgan v. Commissioner of
Correction, supra, 132–42, after extending sixth amend-
ment protection to the statutory right to counsel in
habeas proceedings, considered whether the petitioner
had been denied effective assistance of counsel when
the habeas court denied his motion to disqualify his
attorney without inquiring into the nature of three griev-
ances the petitioner filed. This court concluded that
the trial court’s summary denial of the motion to dis-
qualify was improper, in that the court failed to inquire
whether the nature of the grievances constituted a con-
flict of interest. Id., 142.
We conclude that Vega and Morgan do not compel
the conclusion that the trial court abused its discretion
in finding a de facto termination of the attorney-client
relationship caused by the respondent’s filing of a griev-
ance. A parent has a statutory, not constitutional, right
to appointed counsel in neglect and abuse proceedings.
See In re Zen T., 151 Conn. App. 724, 731, 95 A.3d 1258,
cert. denied, 314 Conn. 911, 100 A.3d 403 (2014), cert.
denied sub nom. Heather S. v. Commissioner of Chil-
dren & Families, U.S. , 135 S. Ct. 2326, 191 L.
Ed. 2d 991 (2015); In re Tayler F., 111 Conn. App. 28,
47 n.8, 958 A.2d 170 (2008), aff’d, 296 Conn. 524, 995
A.2d 611 (2010). General Statutes § 46b-135 (b) provides
in relevant part that ‘‘[a]t the commencement of any
proceeding on behalf of a neglected, uncared-for or
abused child . . . the . . . parents . . . shall have
the right to counsel, and shall be so informed by the
judge, and that if they are unable to afford counsel,
counsel will be provided for them. . . .’’ Moreover, the
protections of the sixth amendment to the United States
constitution and article first, § 8, of the Connecticut
constitution have not been extended to a parent in a
neglect proceeding. See In re Tayler F., supra, 47 n.8
(distinguishing statutory right to confrontation from
sixth amendment right to confrontation); see also State
v. Anonymous, 179 Conn. 155, 159, 425 A.2d 939 (1979).
Accordingly, the respondent’s reliance on Vega and
Morgan is inapt. See In re Isaiah J., 140 Conn. App.
626, 640, 59 A.3d 892 (noting that respondent provided
no legal basis to support argument that statutory right
to counsel in termination of parental rights proceeding
carries with it the same sixth amendment protections
accorded to criminal proceeding), cert. denied, 308
Conn. 926, 64 A.3d 333, cert. denied sub nom. Megan
J. v. Katz, U.S. , 134 S. Ct. 317, 187 L. Ed. 2d
11
224 (2013).
Moreover, the court’s decision to recognize a de facto
termination must be viewed in light of the full record
of the proceeding. The relationship between the respon-
dent and Attorney Condio, the respondent’s fourth
appointed attorney in approximately six months’ time,
had been the subject of a previous motion to withdraw
filed by Attorney Condio approximately two months
before trial commenced. In the interim, the respondent
witnessed the withdrawal of the mother’s counsel based
on the mother’s filing of a grievance, and at that hearing
had inquired of the court whether he would be permit-
ted to ‘‘release’’ his attorney if some misconduct had
occurred. At trial, after learning from the respondent
himself that he had indeed filed a grievance, the court
asked whether the respondent had a copy of the griev-
ance, inquired at length of the respondent as to why he
believed Attorney Condio had violated her professional
responsibilities, and inquired of Attorney Condio
whether she believed she could continue to represent
the respondent, which she stated she did not.
At oral argument before this court, counsel for the
respondent clarified that his claim is that the trial court
should have once again told the respondent that if Attor-
ney Condio was permitted to withdraw, he would not
be appointed a fifth attorney. Given that the respondent
had been given this exact warning numerous times on
multiple occasions prior to the filing of his grievance
against Attorney Condio, we cannot conclude that the
trial court abused its discretion in not issuing the warn-
ing yet again or in permitting Attorney Condio to with-
draw from representation.
II
The respondent’s second claim is that the court
abused its discretion in finding that he had waived his
right to appointed counsel by virtue of his conduct.
Specifically, the respondent claims that the record is
clear that he wanted representation and that his con-
duct did not rise to the level that has been found to
justify a waiver of counsel in other cases. We hold that
the court did not abuse its discretion.
We begin our analysis by setting forth the governing
legal principles regarding the right to counsel, self-rep-
resentation, and waiver in the context of a neglect pro-
ceeding. As noted in part I of this opinion, a parent
has a statutory right to appointed counsel in a neglect
proceeding. See General Statutes § 46b-135. A parent
may waive his statutory right to counsel in favor of
representing himself. See In re Zowie N., 135 Conn.
App. 470, 483, 41 A.3d 1056, cert. denied, 305 Conn. 916,
46 A.3d 170 (2012). ‘‘Waiver, of course, is the intentional
relinquishment of a known right. . . . [A] proper
waiver of counsel must be intelligent and voluntary and
. . . its basis, having been clearly determined by the
trial court, should appear on the record.’’ (Citation omit-
ted; internal quotation marks omitted.) In re Daniel A.,
150 Conn. App. 78, 86, 89 A.3d 1040, cert. denied, 312
Conn. 911, 93 A.3d 593 (2014). ‘‘[T]he determination of
whether there has been an intelligent waiver of the
right to counsel must depend, in each case, upon the
particular facts and circumstances surrounding that
case, including the background, experience, and con-
duct of the accused. . . . This important decision rests
within the discretion of the trial judge. . . . Our task,
therefore, is to determine whether the court abused its
discretion in allowing the defendant to discharge his
counsel and to represent himself.’’ (Internal quotation
marks omitted.) Id., 88.
Although a parent has a statutory right to counsel in
a neglect proceeding, ‘‘[t]here is no unlimited opportu-
nity to obtain alternate counsel. . . . It is within the
trial court’s discretion to determine whether a factual
basis exists for appointing new counsel. . . . [A]bsent
a factual record revealing an abuse of that discretion,
the court’s failure to allow new counsel is not reversible
error. . . . Such a request must be supported by a sub-
stantial reason and, [i]n order to work a delay by a last
minute discharge of counsel there must exist excep-
tional circumstances. . . . A request for the appoint-
ment of new counsel . . . may not be used to cause
delay.’’ (Citation omitted; internal quotation marks
omitted.) In re Isaiah J., supra, 140 Conn. App. 633–34.
The court in this neglect and abuse proceeding made
the following finding on the record: ‘‘In the circum-
stances here, I find that there has been a knowing and
voluntary waiver of the right to appoint a counsel. I’ve
indicated the basic, the general background facts, but
in summary they include the fact that Mr. [R.] has had
four appointed attorneys. All were removed at some
level because of a client-attorney conflict. He was told
the last time an attorney had been appointed that a new
lawyer would not be automatically appointed. He was
assured that the court would continue to monitor attor-
ney conduct, and that if there was a legitimate claim
of attorney misconduct with an action that warranted
discharge of counsel, that the court would act in that
way, but after [the mother] had filed a grievance, that
has necessitated the discharge of [her attorney]. He was
specifically reminded to present any claim to the court
first. And the reason for presenting it to the court first
was so that the almost automatic de facto termination
of a discharge of attorney that occurs by the filing of
the grievance could be . . . avoided and the court
would have an opportunity to ascertain whether the
complaints and the dissatisfaction of a person being
represented by a lawyer were sufficient, that they met
the standards for discharge of that lawyer. It’s the
court’s duty to ensure that people who have counsel
have competent, qualified and effective counsel. And I
assured him that I would review any claim of miscon-
duct, and that the assured filing of the grievance would
not be that. So I find that the conduct has waived his
right to an attorney . . . .’’
The respondent concedes that waiver may be implied
by conduct, but argues, based on out-of-state cases
addressing forfeiture of the constitutional right to coun-
sel, that the respondent’s conduct has not risen to the
level that has been found by sister courts to constitute
a waiver of counsel. The cases relied upon by the
respondent all involve criminal or habeas proceedings
and violence, or threats thereof, by the defendant
against appointed counsel.12 None of these decisions
supports a conclusion that the court here abused its
discretion in concluding that the respondent had waived
his statutory right to counsel.
This court’s decision in In re Daniel A. is instructive.
There, the court permitted the respondent’s second
attorney to withdraw from representation after the
court informed the respondent that it would not appoint
a third counsel if it granted the motion to withdraw.
In re Daniel A., supra, 150 Conn. App. 94. The respon-
dent said he would represent himself, and the respon-
dent’s counsel remained present as standby counsel.
Id. In considering whether the respondent’s election to
represent himself was voluntary, this court considered
the trial court’s familiarity with the respondent, the
respondent’s general understanding of legal proceed-
ings and tactics, including that the respondent had made
suggestions to counsel regarding cross-examination
tactics and demonstrated a familiarity with the allega-
tions of the petition to terminate his rights, and the
respondent’s understanding of the gravity of the pro-
ceedings. Id., 94–95.
In the present case, the record is clear that the trial
court was familiar with the respondent as a result of
presiding over previous proceedings in the neglect and
abuse case.13 On the first day of trial, the respondent
requested that his fourth appointed attorney be
removed despite repeated warnings from the court that
it would not provide him with a fifth attorney. The
respondent was aware that the withdrawal of Attorney
Condio would mean that he would represent himself,
having been expressly informed of this consequence by
two different judges on at least four previous occasions.
Moreover, the record shows a general understanding
of legal proceedings, in that the respondent’s frustration
with Attorney Condio stemmed, in part, from certain
motions he wished to file, evidence he wished to obtain,
and exhibits he wished to introduce. The record also
shows that the respondent indicated that he understood
the hazards associated with representing himself.
Lastly, the record indicates that the respondent under-
stood the gravity of the proceedings; he stated he was
seeking a ‘‘fair shot of trying to debunk these allegations
about neglect and abuse.’’
Here, as in In re Daniel A., ‘‘[a]lthough the record
indicates that the respondent did not state, in so many
words, that he no longer desired counsel, he engaged
in a course of conduct that demonstrated that he knew
what he [was] doing and [that] his choice [was] made
with eyes open . . . .’’ (Internal quotation marks omit-
ted.) Id., 95. The respondent’s attempts to distinguish
Daniel A. are entirely unavailing. As we concluded in
part I of this opinion, the trial court did not abuse its
discretion in not issuing the same repeated warning
one final time. The record reveals that the respondent
knew that his last minute request for Attorney Condio’s
withdrawal would mean that he would be representing
himself. Accordingly, we cannot conclude that the court
abused its discretion in finding that the respondent
waived his statutory right to appointed counsel by
conduct.
The judgments are affirmed.
In this opinion the other judges concurred.
* 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.
** October 26, 2017, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
C.R. has since reached the age of majority, and the respondent concedes
that the appeal is moot as to C.R.
2
The children’s mother also was a respondent in the neglect proceeding.
She is not a party to this appeal, however. Accordingly, we refer to the
children’s father as the respondent.
3
On appeal to this court, counsel for the children has adopted the position
of the petitioner, the Commissioner of Children and Families.
4
The petition as to C.R. alleged that she was neglected in that she was
denied proper care and attention, physically, educationally, emotionally or
morally. The petition as to A.R. alleged that she was neglected in that she
was being permitted to live under conditions, circumstances or associations
injurious to her well-being. Both petitions alleged that the children were
abused in that they were in a condition that is the result of maltreatment,
including, but not limited to, malnutrition, sexual molestation or exploita-
tion, deprivation of necessities, emotional maltreatment or cruel pun-
ishment.
5
The exact date upon which Attorney Berman began to represent the
respondent is unknown; however, she represented the respondent as early
as June 1, 2016, on which date she appeared for the respondent in court.
6
The panel referred to by Attorney Rapillo is a list of attorneys who
have entered into assigned counsel contracts with the Division of Public
Defender Services.
7
The court reiterated its warning a second and a third time during the
hearing: ‘‘If you choose not to have Attorney Condio represent you, you are
certainly welcome to hire private counsel on your own or you’re welcome
to file an appearance and represent yourself, but that’s it.’’ ‘‘So if you choose
not to have Ms. Condio represent you, then your choices are to hire private
counsel or represent yourself.’’
8
Also during the September 21, 2016 hearing, the court inquired as to the
respondent’s educational background:
‘‘The Court: You do have a right to have an attorney. You don’t have a
right to pick your attorney. You’ve been through four attorneys. All four
attorneys have asked to withdraw from your case. I’m finding that your
demands of meeting after 5 p.m. [are] unreasonable, I’m finding that your
demand that a third party be present is unreasonable, it violates ethics and
it violates privacy laws for juvenile court documents. How far did you go
in school, Mr. [R.]?
‘‘[The Respondent]: I completed college. . . .
‘‘The Court: And when did you get your degree?
‘‘[The Respondent]: 2007 was the last one, AAS in criminal justice, and
in ’98, a BS.
‘‘The Court: In what?
‘‘[The Respondent]: In criminology.
‘‘The Court: Criminology? And have you ever represented yourself in court
proceedings before?
‘‘[The Respondent]: Never. This is the first time that I’ve had a matter, a
juvenile matter dealing with anything so—
‘‘The Court: Well, I’m not just talking about juvenile matters. Have you
ever been in civil court?
‘‘[The Respondent]: Anytime? No, never, never had any issue.’’
9
The respondent further inquired: ‘‘That’s why I’m asking you, Your Honor,
if you’re stating whether we go through this trial, and if there’s an instance
where there is some kind of issue or there’s a problem that constitute[s]
with the Connecticut state statutes regarding the code of ethics within the
attorney, that we would not be allowed to release that attorney.’’
10
The respondent stated that he did not file a brief because he did not
know ‘‘how to do one.’’
11
In his reply brief, the respondent points to this court’s citation in In re
Danyellah S.-C., 167 Conn. App. 556, 572, 143 A.3d 698, cert. denied, 323
Conn. 913, 150 A.3d 228 (2016), to Vega for the proposition that differences
of opinion over trial strategy do not necessarily compel the appointment of
new counsel. He contends that this citation, while not definitive, supports
the argument that Vega applies to civil proceedings. We disagree.
12
See Gilchrist v. O’Keefe, 260 F.3d 87, 100 (2d Cir. 2001) (holding that
state court was not unreasonable in concluding that right to counsel in
criminal proceeding could be forfeited based on petitioner’s physical assault
on defense attorney), cert. denied sub nom. Gilchrist v. Smith, 535 U.S.
1064, 122 S. Ct. 1933, 152 L. Ed. 2d 839 (2002); United States v. Leggett, 162
F.3d 237, 250–51 (3d Cir. 1998) (district court did not err in concluding that
criminal defendant, by physically attacking counsel, engaged in ‘‘extremely
serious misconduct’’ to forfeit right to counsel at sentencing hearing), cert.
denied, 528 U.S. 868, 120 S. Ct. 167, 145 L. Ed. 2d 141 (1999); King v. Superior
Court, 107 Cal. App. 4th 929, 949, 132 Cal. Rptr. 2d 585 (2003) (where
fundamental constitutional right to counsel is at issue, proceeding to find
forfeiture of that right requires procedural due process protections); State
v. Montgomery, 138 N.C. App. 521, 524–25, 530 S.E.2d 66 (2000) (defendant
had forfeited constitutional right to counsel through purposeful conduct
and tactics to delay orderly processes of the court, including disruptive and
assaultive behavior); State v. Boykin, 324 S.C. 552, 554, 558, 478 S.E.2d 689
(App. 1996) (defendant’s conduct in one instance of verbal abuse and physi-
cal threatening not sufficient to constitute forfeiture of sixth amendment
right to counsel); State v. Holmes, 302 S.W.3d 831, 848 (Tenn. 2010) (defen-
dant had not forfeited his fundamental constitutional right to counsel as
result of verbal threat and physical assault).
13
In its oral decision, the court also noted that it had reviewed the court
file, reviewed the memoranda of court hearings, and listened to audio
recordings of three hearings.