In Re Joseph W., Jr.
In Re Joseph W., Jr.
Opinion of the Court
Opinion
The respondent mother, Karin H., and the respondent father, Joseph W., appeal from the judgments of the trial court terminating their parental rights
The following factual and procedural history is relevant to the respondents’ appeals. Joseph, Jr., was bom on July 18,2005, in Scranton, Pennsylvania. The respondents feared that the department of children and families (department) would take Joseph, Jr., from them because the mother’s first child had been committed to the custody of the petitioner, the commissioner of children and families. Consequently, on the advice of legal counsel, the respondents traveled to Pennsylvania in an attempt to evade the department. The parents were not successful in their attempt to elude the department. On July 21, 2005, three days after his birth, while still in the hospital, Joseph, Jr., was taken into emergency protective custody by the commonwealth of Pennsylvania, to be transferred to the custody of the petitioner upon the issuance of an order of temporary custody. Also on July 21, 2005, the petitioner took Joseph, Jr., into custody pursuant to an order of temporary custody and filed a neglect petition, on the basis of the doctrine of predictive neglect, premised on allegations regarding the mother’s mental health issues
Daniel was bom on July 20, 2006, in Waterbury. On the same day, while Daniel was still in the hospital, the petitioner took him into custody pursuant to an emergency ninety-six hour administrative hold. See General Statutes § 17a-101g. On July 24, 2006, the petitioner filed a neglect petition and sought an order of temporary custody as to Daniel. The custody order was granted on the same day.
On August 2, 2007, at the hearing on the neglect petitions regarding both children and at which the father was present, the mother entered a plea of nolo contendere as to the allegations of neglect. After canvassing the mother, the court, Wilson, J., adjudicated the children neglected pursuant to General Statutes (Rev. to 2007) § 46b-120 (9) (C) and committed the children to the custody of the petitioner. Neither respondent appealed from the neglect judgments.
On November 29, 2007, however, the father filed a motion to open the adjudications of neglect and commitment of the children, alleging that he had attempted to object to the mother’s plea on August 2, 2007, but that the court would not allow him to speak.
On June 16,2008, the petitioner filed a motion asking the court to reconsider its May 30, 2008 order requiring that she prove by a fair preponderance of the evidence that the children were neglected at the trial on the petitions to terminate the respondents’ parental rights. On June 24, 2008, pursuant to the court’s May 30, 2008 order, the father filed a motion seeking a neglect trial, a motion to clarify and an objection to the petitioner’s motion for reconsideration. The court, Bear, J., held a hearing on these motions on July 9, 2008. On that date, the court granted the father’s motion for a neglect trial but denied the father’s other requested relief. At the July 9, 2008 hearing, the court, Bear, J., also found that the father had not stood silent at the August 2, 2007 neglect proceeding and that he did not waive his right to be heard on the neglect matter. The court commented that “[i]f [the father] turns out to have been custodial, then only half of what needed to be done was done
Thereafter, on August 20, 2008, the father filed a motion to bifurcate the neglect and termination of parental rights proceedings, to which the petitioner objected. On August 21, 2008, the petitioner filed another motion asking the court to reconsider its May 30, 2008 order requiring the petitioner to prove at the termination of parental rights hearing that the children had been neglected.
On September 4, 2008, the court, Olear, J., commenced the termination hearing, beginning with the issue of whether the father was a custodial parent as of the date that the neglect petitions were filed. The father testified that he was present at the hospital when both Joseph, Jr., and Daniel were bom, that he signed acknowledgements of paternity for both children while they were in the hospital and that he was there with them for the duration of their stay in the hospital until they were taken into the custody of the petitioner within a few days of their respective births. The father also testified that it was his understanding that he and the
Thereafter, the court granted a motion filed by the petitioner to correct its petition for termination of the respondents’ parental rights and to proceed on the basis of the prior adjudications of neglect. Following an evi-dentiary hearing, the court, by memorandum of decision dated October 1, 2008, terminated the respondents’ parental rights as to both Joseph, Jr., and Daniel.
On appeal, the father claims that the termination of his parental rights was improper because it was premised on a prior finding of neglect in a proceeding in which he was deprived of his right to participate. He claims further that he was entitled to a contested hearing on the neglect petition because he was a custodial parent at the time that the neglect petition was filed.
As a preliminary matter, we note that the petitioner contends that the father’s claim constitutes an impermissible collateral attack on the court’s prior adjudication of neglect.
In support of her argument, the petitioner relies on In re Stephen M., 109 Conn. App. 644, 647, 953 A.2d 668 (2008), in which this court held that aparty is barred by the doctrine of collateral estoppel from relitigating a previous finding of neglect during a subsequent termination trial.
We now turn to the father’s claim that the court improperly concluded that he was not a custodial parent at the time that the neglect petitions were filed. The parties agree that a parent is custodial for the purposes of a neglect adjudication if that parent is responsible for the physical care and supervision of the child.
The father’s claim raises a mixed question of law and fact, over which we exercise plenary review. Therefore, “we must decide whether [the court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) In re Haley B., 262 Conn. 406, 411, 815 A.2d 113 (2003).
In 2007, Practice Book § 35a-l (b), subsequently redesignated as Practice Book § 35a-l (a),
On January 28, 2010, we asked the court, Olear, J., to articulate the legal and factual bases for its conclusion that the father was not a custodial parent at the time that the neglect petitions were filed. In response, the court stated that the “[father, while represented by competent counsel, elected to stand silent at the time of the neglect adjudication and, by doing so, acknowledged being a noncustodial parent.” The court defined the custodian of a minor child as “the parent or person with whom a minor child resides, at all times or from time to time, and who assumes the responsibility for all or part of the day-to-day care and supervision of the child.” The court found that the father was present at the births of the children; that both children were taken into the custody of the petitioner prior to their discharge from the hospital; that the father signed an acknowledgement of paternity for each child; and that, prior to the respective orders for temporary custody, there were no court orders establishing the legal custo
We find the court’s articulation legally and factually troubling. We first address the court’s statement that the father stood silent at the neglect hearing. This finding is belied by Judge Bear’s earlier determination, following a hearing in which the transcript of the neglect proceeding was introduced into evidence. Judge Bear stated that “[t]he father, from the transcript, made it clear that he did want to proceed with his rights such as they are
The statement of the court, Olear, J., that the father remained silent at the neglect proceeding is further belied by the court’s statement on September 4, 2008, in which it said: “On consideration of the testimony put forward today and on a further reading of Judge Bear’s order of August 25, 2008, while the court acknowledges [that] the father may not have waived his rights at the time of the hearing, the father today has not produced sufficient evidence to meet his burden of having established that he was a custodial parent . . . .” (Emphasis added.) A fair review of the record in this regard reveals that the father not only did not “stand silent” at the neglect hearing but that he attempted, without success, to assert his right to participate in the neglect hearing and to contest the allegations of neglect.
We next turn to the question of whether the father should have been accorded the right to participate in the neglect proceeding because, as noted, if that proceeding was flawed, the findings of neglect could not subsequently and properly be used by the petitioner as an adjudicative allegation in the termination proceedings. Although the rules of practice do not define the term “custodial” for purposes of adjudicating neglect, we find guidance in our statutes and case law.
On the basis of the record before the court at the time of the neglect proceeding, we can discern no distinction in the custodial status of either parent. Both parents were at the hospital together for the births of both children, and they spent equal amounts of time with them before they were taken into custody by the petitioner. In its decision, the courts, Olear, J., and Bear, J., placed a burden on the father to prove that he was a custodial parent even though no court in these proceedings has placed a corresponding burden on the mother. Additionally, we are not aware of any legal authority that stands for the proposition that a parent must prove that he or she is custodial to contest a
On the basis of the foregoing, we conclude that the father enjoyed the same custodial status as the mother at the time the neglect petitions were filed and that he was entitled to contest the allegations of neglect. Because the father is entitled to contest the neglect allegations, the termination of the respondents’ parental rights must be reversed, as the terminations were premised on improper adjudications of neglect.
In this opinion HARPER, J., concurred.
In AC 30476, the respondent mother appeals from the court’s judgment terminating her parental rights as to both children. In AC 30477, the respondent father appeals from the court’s judgment terminating his parental rights as to both children.
In support of the allegations of predictive neglect, Kathleen Dayner, a social worker with the department, set forth the following history of the mother’s involvement with the department. On October 14,2002, the mother gave birth to her first child, who is not at issue in these appeals. On the day that child was bom, that child was taken into the custody of the petitioner on the basis of a referral from the hospital indicating that the mother’s “mental health presentation impaired her ability to safely parent her infant child.” On February 7, 2003, the mother was diagnosed with schizotypal personality disorder. This disorder is “characterized by unusual, disjointed and peculiar distortions of thinking, understanding and interpersonal rela
In May, 2005, the mother was seen by a different psychiatric specialist who diagnosed her with paranoid schizophrenia and post-traumatic stress disorder. The mother was prescribed medication, which she failed to take. Dayner alleged that the mother had failed to benefit from the psychiatric and medical services provided by the department, and, consequently, the mother’s parental rights as to her first child were terminated.
In the petitioner’s summary of facts substantiating the allegations of neglect, Kathleen Dayner, a social worker with the department, noted the father’s lack of “insight or acceptance” of the mother’s “psychiatric impairment and the implications they have for this child.” She also noted: “Dr. [Cynthia] Ronan reported to [the department] on [June 28, 2005] that father ... ‘is as unstable as [the mother]’. Dr. Ronan stated [that the father] refused during a prenatal visit to listen to the child’s heartbeat saying ‘that’s too intimate.’ ” Dayner also stated that the father “has a criminal history dating back to 1971 with charges that include assault, breach of [the] peace, threatening, breaking and entering and resisting arrest.”
The basis for the neglect petition as to Daniel was the same as the basis for the petition filed regarding Joseph, Jr.; see General Statutes (Rev. to 2007) § 46b-120 (9) (C); except that it averred that the father “has not demonstrated an ability to care for the child independent of the mother.” In the petitioner’s summary of facts substantiating the allegations of neglect, in addition to citing to the father’s criminal history, Kathleen Dayner, a social worker with the department, stated: “Since the inception of the case involving [Joseph, Jr., the father] has demonstrated during visitation, a refusal or reluctance to feed the child as advised or to follow [child care]
The father alleged in his motion that “the [c]ourt cautioned [him] to quiet down and [j]udicial [m]arshals prepared to enforce this request.”
The petitioner filed petitions to terminate the parental rights of the respondents on December 10, 2007.
Specifically, the court’s order stated: “The respondent father’s motion to open the judgment of neglect, filed on November 29, 2007, having been heard by this court, it is hereby ordered that the relief sought in such motion, e.g., that the judgment of neglect be opened, is hereby denied, but such respondent father (but not the respondent mother who did not seek similar relief) shall be permitted on or before August 12,2008, fourteen days before the termination of parental rights trial scheduled to commence on Tuesday, August 26,2008, to file a pleading with the court, copies certified to counsel, that he continues to seek a trial on the issue(s) of whether Joseph, Jr., and Daniel were neglected as alleged by [the petitioner] in each respective neglect petition, and if such pleading timely is filed by such respondent father, despite the prior adjudications of neglect and dispositions of commitment entered on or about August 2, 2007, upon the nolo contendere pleas of the mother, at such trial [the petitioner] shall also have the burden to prove by a fair preponderance of the evidence that Joseph, Jr., and Daniel were neglected.
“Such prior commitments of Joseph, Jr., and Daniel to the care, custody and guardianship of [the petitioner] shall remain in effect until further order(s) of this court.”
None of the parties appealed from this order.
The petitioner based her motion on this court’s decision in In re Stephen M., 109 Conn. App. 644, 953 A.2d 668 (2008), which was released August 12, 2008.
None of the parties appealed from these orders.
Following the testimonial portion of the hearing, the petitioner seems to have argued that the father was not custodial in that he “came in on the scene from a hospital, and the only involvement [the petitioner] had at the time was with the mother in regard to this case. ” Such an argument, however, merely serves to undermine the thoroughness of the petitioner’s actions to remove the children from their parents on the basis of predictive neglect.
The court rendered judgment of termination of parental rights as to the mother pursuant to General Statutes § 17a-112 (j) (3) (B) (i) and (E) and as to the father pursuant to § 17a-112 (j) (3) (B) (i).
On January 8, 2009, the petitioner asked the court to articulate whether “there [was] sufficient evidence presented at the termination of parental rights trial, whereby the trial court could find by a fair preponderance of the evidence that the children were neglected?” The court denied the motion for articulation on the ground that the issue of neglect was not before the court at the termination trial because that issue had been previously adjudicated on August 2, 2007, and the father had not produced sufficient evidence to prove that he was custodial and, therefore, entitled to a contested hearing on neglect.
We note the apparent anomaly that while an adjudication of neglect relates to the status of a child and is, therefore, not premised on the fault of the parents, such a finding can, nevertheless, be used as a basis for terminating a parent’s rights.
“The petitioner’s claim that a trial court may not reconsider the issue of neglect during a termination of parental rights proceeding presents a mixed question of fact and law because it involves the application of factual determinations to the statutory scheme for the protection of the well-being of children. In such circumstances, an appellate court employs the de novo standard of review.” In re Stephen M., 109 Conn. App. 644, 658, 953 A.2d 668 (2008).
Although the father arguably should have appealed immediately from the adjudication of neglect, instead, he timely filed a motion to open that judgment pursuant to General Statutes § 52-212a. It is noteworthy that the petitioner neither filed an objection to the father’s motion, nor raised the issue at the hearing on the motion that the father should have previously appealed from the neglect adjudication. The petitioner did not make that argument until she filed a motion for reconsideration on June 16, 2008.
“The applicability of the doctrines of collateral estoppel or res judicata presents a question of law that we review de novo.” Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007). “Claimpreclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum.” (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 186, 834 A.2d 744 (2003).
“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of
Here, in affording the father an opportunity to prove that he was a custodial parent, the court implicitly determined that the issue of neglect had not previously been fully and fairly adjudicated.
The court then ordered the matters consolidated, which further undermines the petitioner’s claim that the father is collaterally attacking the judgment of neglect.
We presume that the rationale behind the rule requiring the judicial authority to address its inquiry regarding neglect to the custodial parent was tied to the fact that the custodial parent was in the better position to attest to the condition of the children. This case does not fit readily into that framework for two reasons. First, because the basis for the neglect petitions as to both children was predictive, it cannot be presumed that one parent would be more competent to plead to predictive behavior than the other. Second, here, there is no evidence that either parent had a greater
“[A] father, no less than a mother, has a constitutionally protected right to the companionship, care, custody, and management of the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection.” (Internal quotation marks omitted.) Weinberger v. Wiesenfeld, 420 U.S. 636, 652, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975).
Curiously, the petitioner contends on appeal that neither parent was custodial at the time the neglect petitions were filed because the petitions were not filed until after the children were taken into custody. If that be the case, it is difficult to rationalize the court’s acceptance of the mother’s nolo plea at the neglect hearing, as we are not aware of the basis for a court properly to accept a nolo plea to a neglect petition from a noncustodial parent. Therefore, if the mother was not a custodial parent when the neglect petitions were filed, it is questionable as to whether her nolo plea was a proper vehicle for adjudicating the children as neglected.
In 2009, Practice Book § 35a-l (b) was redesignated Practice Book § 35a-1 (a), with certain revisions for clarification, to require that the judicial authority inquire of the parents or guardian whether or not they admit or deny the allegation of the neglect petition regardless of whether the parent is custodial.
“Construction of our rules of practice presents a question of law over which our review is plenary. ... In construing our rules of practice, we are guided by the principles governing statutory interpretation. . . . Our fundamental objective in interpreting a rule of practice is to ascertain and give effect to the intent of the drafters. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Citations omitted; internal quotation marks omitted.) Malave v. Ortiz, 114 Conn. App. 414, 417, 970 A.2d 743 (2009).
It is noteworthy that the petitioner, in her affidavit dated July 24, 2006, seeking out of home placement for Daniel, alleged that the mother and the father did, in fact, reside together and that the parents’ misrepresentation oftheir joint residency was one areaofthepetitioner’s concern. That affidavit was filed simultaneously with the neglect petition as to Daniel.
This statement is troubling, as it seems to suggest that a parent may be considered custodial simply on the basis of his or her willingness to enter a nolo plea It also begs the question as to what the custodial status of each parent would be if the father had agreed to the nolo plea, but the mother had refused. Would the father then have been considered a custodial parent rather than the mother? The petitioner, the court and the dissent seem to so suggest.
Such reasoning wrongly presumes that only one parent can be custodial. It also presumes that the father had a higher burden than the mother to prove that he was a custodial parent. As noted previously, we know of no legal authority for this presumption.
In analyzing the father’s claim that he is a custodial parent, we are mindful that we are dealing with a requirement in the rules of practice that cannot substantively affect a party’s statutory or constitutional rights. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 44, 970
Prior to 1901, “[pjrimarily the parents [were] entitled to the custody of their minor child, and formerly, in case of controversy, the father to the exclusion of the mother.” Dunham v. Dunham, supra, 97 Conn. 442.
The dissent, sets forth, with no legal support, several potential items that the father could have raised as proof that he was a custodial parent, such as the purchase of a child safety seat or a crib. Whether or not there is any legal basis for the dissent’s proposition, it is noteworthy that there is no evidence in the record that the mother had presented such evidence, or any evidence whatsoever, to establish that she was a custodial parent.
The United States Supreme Court held in Stanley v. Illinois, 405 U.S. 645, 658, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), that a conclusive presumption that unwed fathers are unfit to have custody of their children violated the fourteenth amendment. The court held that both the due process clause and the equal protection clause of the fourteenth amendment entitle the father of an illegitimate child to the same hearing as a legal father to determine his fitness before being deprived of custody of his child. Id., 649. In defining the right at stake, the court held that “[t]he rights to conceive and to raise one’s children have been deemed ‘essential,’ . . . ‘basic civil rights of man,’ . . . .” (Citations omitted.) Id., 651.
Dissenting Opinion
dissenting. I respectfully disagree with the majority that the trial court, Olear, J., erred when it determined that the respondent father, Joseph W., was not a custodial parent. As Judge Olear carefully pointed out when she construed the relevant statutes, a biological parent may be a child’s guardian, but a biological parent or guardian is not necessarily a child’s custodial parent. Having also reviewed the appellate claims of both respondents, I would affirm the judgments of the trial court.
The respondent mother and the father filed separate appeals from the judgments of the trial court, terminating their parental rights as to their minor sons, Joseph, Jr., and Daniel. In AC 30476, the mother claims that the court’s findings that (1) she had failed to achieve a sufficient degree of personal rehabilitation and (2) it is in the best interest of her sons to terminate her parental rights were clearly erroneous. In AC 30477, the father claims that the court (1) improperly concluded that he was not a custodial parent and was not entitled to contest the issue of neglect, (2) violated his constitutional rights and (3) made clearly erroneous findings that the department of children and families (department) had made reasonable efforts to reunite him with his sons and that he was unwilling or unable to benefit from such efforts. I disagree with all of the claims.
The following facts are relevant to the appeals. Joseph, Jr., was bom in Scranton, Pennsylvania, on July 18, 2005. Commonwealth authorities took him into custody on July 21, 2005, prior to his discharge from
The court made the following relevant findings. The mother was forty-one years old at the time of the termination trial. She had completed high school and a medi
The mother became involved with the department when her first child, a daughter, was bom.
The father, bom in 1954, met the mother in 2001, when she was employed as a cashier at a convenience store. They maintained a relationship until the summer of 2007 when the mother pleaded nolo contendere to the neglect petitions at issue here. The respondents, however, have resumed their relationship. The father has a history of being guarded and imparts only limited information as to his past. During his initial meeting with department personnel on July 22, 2005, he refused to speak. He would not answer basic questions, including requests for his address and telephone number. Approximately three months later, he reluctantly provided department personnel with a minimal history. The court characterized his relationship with the department as hostile.
The father was graduated from high school at the age of twenty-three, after having served in the United States Navy. He has taken some college level courses and has been employed as a factory machine worker, constmction worker and warehouseman. He suffered a spinal injury, however, and receives social security disability benefits. The father had worked as a stock clerk in a grocery store until he lost his job in December, 2006, and very recently was employed by McDonald’s. The father, his mother and his grandmother live in separate areas of a house owned by his mother.
Joseph, Jr., was bom in Pennsylvania because the respondents left Connecticut just before his birth in an effort to prevent department personnel from removing Joseph, Jr., from their care. Commonwealth authorities,
Daniel, the respondents’ second child, was placed in a foster home on July 23, 2006, where he currently resides with Joseph, Jr., and his half sister. Daniel’s development is age appropriate, and he has no reported behavioral issues. The foster family wants to adopt Joseph, Jr., and Daniel. Additional facts will be set forth as needed.
I
NEGLECT PETITIONS AS TO THE FATHER
The father claims that the court erred by concluding that he was not a custodial parent and, therefore, not entitled to contest the neglect petitions, which he also claims violated his rights to due process and equal protection of the law. I disagree.
A
The majority opinion contains a lengthy procedural history concerning the adjudications of neglect. I agree
Pursuant to plenary review, “[t]he underlying historical facts found by the . . . court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators.” (Internal quotation marks omitted.) Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003). “Under plenary review, we must decide whether the trial court’s conclusions of law are legally and logically correct and find support in the record.” (Internal quotation marks omitted.) Joyner v. Simkins Industries, Inc., 111 Conn. App. 93, 97, 957 A.2d 882 (2008).
Pursuant to Judge Bear’s order, the father was given an opportunity at the beginning of the termination trial on September 4, 2008, to demonstrate that he was a custodial parent of Joseph, Jr., and Daniel. Judge Olear concluded that the father failed to establish by a preponderance of the evidence that he was a custodial parent. In an articulation, the court made the following findings of fact relevant to whether the father was a custodial parent. The court found that the father was present at the birth of both Joseph, Jr., and Daniel, governmental authorities removed both children from the hospitals where they were bom prior to the hospitals’ discharging them and the father acknowledged his paternity of
The court also found that the father offered a paucity of evidence to prove that he was a custodial parent or potentially was a custodial parent. He failed to introduce evidence to refute the mother’s acknowledgment, by entering a plea of nolo contendere, that she was a custodial parent. The father also failed to demonstrate that he was, or intended to be in the foreseeable future, a de facto custodial parent to Joseph, Jr., and Daniel. He offered no evidence that the respondents were married to one another, that they resided together or that they intended to reside with the children in the same home upon discharge from the hospitals. There was no evidence that the father was going to or had prepared to care for the children in his residence at the time the neglect petitions were filed or at any foreseeable time in lieu of or in addition to the children’s being cared for by the mother in her separate residence.
In making its findings, the court noted that “[i]t is the right and the duty of the [trier of fact] to draw
I further conclude that the court properly applied the applicable section of the rules of practice and our General Statutes to the issue before it. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009). “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008). “It is a basic tenet of statutory construction that the legislature does not intend to enact meaningless provisions. . . . Every word and phrase [in a statute] is presumed to have meaning, and
In 2007, Practice Book § 35a-l provided in relevant part: “(b) Notwithstanding any prior statements acknowledging responsibility, the judicial authority shall inquire whether the allegations of the petition are presently admitted or denied. This inquiry shall be made of the custodial parent in neglect, uncared for or dependent matters; and of all appearing parents in termination matters.” (Emphasis added.) Reading Practice Book (2007) § 35a-l (b) together as a cohesive whole and applying the plain meaning to its words demonstrate that the rule contemplated at least two types of parents, a custodial parent and all appearing parents. Parent is a noun modified by either the adjectives custodial or all appearing. Moreover, the word guardian does not appear in Practice Book (2007) § 35a-l (b).
The court correctly noted that neither our rules of practice nor General Statutes § 46b-129 define the term custody or custodial parent but that our rules of practice and our statutes differentiate between the terms guardian and custody. Part II of chapter 802h in title 45a of our General Statutes is entitled “Guardians of the Person
General Statutes § 45a-606 provides: “The father and mother of every minor child are joint guardians of the person of the minor, and the powers, rights and duties of the father and the mother in regard to the minor shall be equal. If either father or mother dies or is removed as guardian, the other parent of the minor shall become the sole guardian of the person of the minor.” Although the statute establishes that both parents are guardians of their child, it does not say that both parents are a custodial parent. General Statutes § 45a-607 (b), which provides in relevant part that “[i]n the case of a minor child in the custody of the parent or other guardian, no application for custody of such
In its articulation, the court construed § 46b-129 (j), which provides, in relevant part, that on commitment of a child to the petitioner, “the court may vest such child’s . . . care and personal custody in any private or public agency .... The commissioner shall be the guardian of such child . . . .” Section 46b-129 (j) further permits the court after adjudicating a child neglected, as an alternative to commitment, to “place the child ... in the custody of the parent or guardian with protective supervision . . . .” (Emphasis added.) The court noted that the statutes and rules of practice differentiate between the terms custody and guardian, and that each word has a separate and distinct meaning. For example, § 45a-607 (b) provides that a child may be in the “custody of a person other than the parent or guardian . . . .”
The court further reasoned that, in the absence of a court order, parents are only the legal guardians of a minor child. As guardians, parents have the obligation of care and control of their child. See General Statutes § 45a-604. The court continued, stating that the custodian of a minor child, absent a clearly defined court order, means the parent or person with whom a minor child resides, at all times or from time to time, and who assumes the responsibility for all or part of the day-today care and supervision of the child. While a parent is a guardian of a minor child, absent a court order to the contrary, a parent is not necessarily a custodial parent absent a court order (legal custody) or evidence that the child resides with such parent and such parent is providing day-to-day care and supervision (de facto custody).
I have reviewed the father’s testimony offered to prove that he was a custodial parent of Joseph, Jr., and
The father also claims that the court’s finding that he was not a custodial parent deprived him of a trial with respect to the neglect petitions and violated his rights to due process and equal protection. The father failed to raise those claims at trial and seeks to reverse the termination of his parental rights pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The father cannot prevail under Golding, as he is attempting to bootstrap his claim of an erroneous factual finding into a claim of constitutional dimension.
For all of the foregoing reasons, I conclude that the court properly determined that the father was not a custodial parent of Joseph, Jr., and Daniel.
II
TERMINATION OF PARENTAL RIGHTS
The respondents have appealed from the termination of their parental rights as to Joseph, Jr., and Daniel. Before addressing their respective claims, I set forth the guiding principles and standard of review applicable to appeals from the termination of parental rights.
“The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care . . . .” General Statutes § 17a-101 (a). “Time is of the essence in child custody cases. . . . This furthers the express public policy of this state to provide all of its children a safe, stable nurturing environment.” (Citation omitted; internal quotation marks omitted.) In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 439-40, 446 A.2d 808 (1982).
“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.” (Internal quotation marks omitted.) In re
“The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatoiy phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in [General Statutes] § 17a-112 . . . exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the disposi-tional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008).
The petitioner filed petitions to terminate the parental rights of the respondents as to Joseph, Jr., and Daniel on December 10,2007.
“[T]o terminate parental rights under § 17a-112 (j), the [petitioner] is required to prove, by clear and convincing evidence, that [the department] has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification . . . .” (Internal quotation marks omitted.) In re Christopher B., 117 Conn. App. 773, 779-80, 980 A.2d 961 (2009). Here, the court found that neither respondent, despite having been offered numerous services, was willing or able to benefit from them.
“If the court finds that the petitioner has proven by clear and convincing evidence that one of the statutory grounds for termination of parental rights exists, it must then determine whether termination is in the best interests of the child. . . . The best interests of the child
The court found by clear and convincing evidence that department personnel offered the respondents many services to address the issues each of them had and to reunify the family. The court also found that department personnel had offered services to the children. Neither of the respondents attained the benefit from the services offered necessary to nurture and to parent the children appropriately or to be a resource for them. Moreover, the court found that department personnel made reasonable efforts to reunite the family in accordance with the federal Adoption Assistance and Child Welfare Act of 1980, as amended. See generally 42 U.S.C. § 670 et seq.
The court found that specific steps were ordered for the respondents but that the respondents were non-compliant with the majority of the significant steps. In particular, the respondents were noncompliant with the steps requiring that they make progress toward specific and identified goals. The respondents were compliant
As to the feelings and emotional ties the children have with respect to the respondents, guardians of the person and any person who has exercised physical care, custody or control of the children for at least one year and with whom they have developed significant emotional ties, the court found that Joseph, Jr., and Daniel have some positive feelings and emotional ties to the respondents. Joseph, Jr., and Daniel have a strong bond with one another, with their half sister, and with the foster family with whom they have lived since September 14, 2005, and July 23, 2006, respectively. The children have adjusted well to their placements, although Joseph, Jr., has demonstrated some behavioral issues, which are being addressed by the foster mother. The foster mother provides the day-to-day physical, emotional, moral and educational support the children need, is committed to them and would like to adopt them.
The court found that department personnel investigated relatives of the respondents as placement resources. The mother offered her parents as a potential resource for Joseph, Jr., and Daniel. In March, 2004, with respect to a placement for their half sister, however, department personnel determined that the mother’s parents were not suitable. Consequently, department personnel did not consider the children’s maternal grandparents as a suitable resource for them. The father did not offer any family member as a placement for his sons.
The court found that at the time of the termination trial, Joseph, Jr., was three years and three months old, and Daniel was approximately two years and three
As to whether the respondents were prevented from maintaining a meaningful relationship with the children, the court found that no unreasonable conduct by the department, foster parents or third parties prevented the respondents from having a meaningful relationship with Joseph, Jr., and Daniel. Although the respondents’ financial circumstances are limited, economic factors did not prevent the respondents from achieving rehabilitation.
In addition to considering the evidence presented, the court also considered the totality of the circumstances surrounding Joseph, Jr., and Daniel, including their interest in sustained growth, development, well-being, stability, continuity of their environment, their length of stay in foster care, the nature of their relationship with the respondents and their foster parents and the degree of contact they have had with the respondents. See In re Alexander C., 60 Conn. App. 555, 559, 760 A.2d 532 (2000). The court also noted that this court has stated that “[b]ecause of the psychological effects
A
AC 30476
On appeal, the respondent mother claims that the court’s findings that (1) she had failed to achieve a sufficient degree of personal rehabilitation, (2) her parental rights should be terminated pursuant to § 17a-112 (j) (3) (E), and (3) it was in the best interests of Joseph, Jr., and Daniel to terminate her rights were clearly erroneous. I disagree.
1
The mother’s first claim is that the court’s finding that she had failed to achieve a sufficient degree of personal rehabilitation is clearly erroneous. The essence of her claim is that, although she has mental health issues, the court erred in finding that she could not achieve a sufficient degree of personal rehabilitation within a reasonable time, as rehabilitation does not require that she be able to assume full responsibility for her children without ongoing support services. Under the circumstances of this case, I do not agree.
The following facts are relevant to the resolution of the mother’s claim. The court found by clear and
The court also found that the mother failed to achieve a sufficient degree of personal rehabilitation within the meaning of § 17a-112 (j) (3) (B) (i). “Personal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [The statute] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674,
In assessing a parent’s rehabilitative progress, the question is not simply how far the parent has come, but whether the parent has come far enough to encourage the belief that within a reasonable period of time, the parent can assume the role of parent in the life of the child. In re Stanley D., 61 Conn. App. 224, 230, 763 A.2d 83 (2000). “What constitutes a reasonable [period of] time is a factual determination that must be made on a case-by-case basis.” Id., 231. The court is to consider whether the degree of rehabilitation is sufficient to foresee that the parent may assume, within a reasonable time, a useful role in the child’s life, and the court may rely on events occurring after the filing of the petition to terminate parental rights. Id., 230. The court also may inquire into the full history of the respondent’s parenting abilities. In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999). See footnote 5 of this dissenting opinion.
The court found by clear and convincing evidence that the mother had failed to achieve such a degree of
Moreover, the court found that the mother also faded to demonstrate that she has improved her ability to parent safely and to care for her children despite having attended parenting classes and Parent Education and Assessment Services through the McCall Foundation. Her lack of progress was demonstrated by her failing to supervise her children adequately, including an incident at a mall when Joseph, Jr., bolted from her and she left one year old Daniel with a stranger while she pursued Joseph, Jr. The mother has failed to learn and to employ safe, responsible and appropriate child care methods. She also has not demonstrated an ability to maintain gainful employment or to live independently.
The mother claims that she successfully has stabilized her situation, albeit in a limited fashion. She claims that department personnel failed to devise a treatment plan specific to her needs. Although she makes that claim, the mother has not identified how the services and treatment plans she was offered were inappropriate or inadequate. The evidence indicates that the mother failed to make progress because she did not commit herself to the treatment plans or apply herself to the services offered. For example, the mother suffers from narcolepsy. She was provided medical evaluations and treatment. She failed to comply with the treatment program because she declines to take the medication necessary to stabilize her condition.
On the basis of my review of the record, I conclude that the court’s finding that the mother had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Joseph, Jr., and Daniel, she could assume a responsible position in their lives is not clearly erroneous. The court’s findings reflect that the mother is not able to take care of herself, let alone the needs of two small children, including one with behavioral issues. Because there was sufficient evidence that Joseph, Jr., and Daniel could not be returned safely to their mother’s care, further services were not required. See In re Juvenile Appeal (84-AB), 192 Conn. 254, 258, 471 A.2d 1380 (1984).
2
The mother’s second claim is that the court’s finding that her parental rights should be terminated pursuant
As the court stated in its memorandum of decision, the petitioner alleged that the mother has failed to achieve sufficient personal rehabilitation after Joseph, Jr., and Daniel previously had been adjudicated neglected and her parental rights as to another child were terminated previously. The court found that Joseph, Jr., and Daniel were adjudged neglected on August 2, 2007, and that each of them is younger than seven years of age. The court also found that the mother’s parental rights as to her daughter were terminated on January 17,2007. In determining whether the mother had achieved a degree of personal rehabilitation sufficient to encourage a belief that she could assume a responsible position in the life of her children, the court adopted the definitions, meanings and findings set forth in part IIA1 of this dissenting opinion. The court found the credible evidence presented through the testimony and exhibits clearly and convincingly established that the mother had not achieved the degree of rehabilitation that would encourage the belief that she could, within a reasonable time, assume a responsible position in the lives of Joseph, Jr., and Daniel.
Again, the mother’s claim is that the court’s finding that she had failed to achieve a sufficient degree of personal rehabilitation is clearly erroneous. For the same reasons stated in part II A 2 of this dissenting opinion, I cannot conclude that the court’s finding is clearly erroneous.
3
The mother’s third claim is that the court’s finding that it is in the best interests of Joseph, Jr., and Daniel to terminate her parental rights is clearly erroneous. The claim is unavailing.
The mother argues that because her interaction with her sons has been loving, it is in the children’s best interests not to terminate her parental rights. She suggests that the children continue to be cared for by their foster family but that she be permitted to maintain a relationship with them. She relies on part of a sentence from In re Sheena I., 63 Conn. App. 713, 726, 778 A.2d 997 (2001), for the proposition that “there are cases where a court may deem it appropriate for a child to maintain contact with his or her biological parent . . . .” This court concluded that sentence with the words, “the court did not so find in this case.” Id. So, too, in this case, the court did not find that it was in the best interests of Joseph, Jr., and Daniel for the mother to maintain contact with them. The court balanced “the children’s intrinsic need for stability and permanency against the benefits of maintaining a connection with their biological parents” and found that “these children require the stability of placement and continuity of care.” The record supports the court’s finding that termination of the mother’s parental rights is in the best interests of Joseph, Jr., and Daniel.
B
AC 30477
With respect to the termination of his parental rights, the father claims that the court’s findings that the department made reasonable efforts to reunify him with
The court made the following findings of fact with regard to the father. The court-ordered steps reqmred the father to keep all appointments set by or with the department, and to cooperate with department home visits, both announced and unannounced, and to cooperate with visits from the children’s court-appointed attorney or guardian ad litem. From July 20, 2005, to October 16,2006, the father refused to grant department and service providers access to the apartment in which he resided. He granted access to his mother’s apartment oMy. He consistently refused to grant access to his home to Maria Coutant-Skinner, a parent educator with McCall Foundation’s Parent Education and Assessment Services program. He therefore failed to demonstrate to service providers that his residence would provide a safe and nurturing environment for his children.
On January 8, 2007, the father was not present for a scheduled visit with Ms children, as he chose to attend the trial of the petition to terminate the mother’s parental rights as to her daughter. On August 3, 2007, during a visit scheduled by the mother to be held in the father’s home, the father ordered the mother and a department social worker off his property.
The father was to keep his whereabouts known to the department, his attorney and the attorney for his children. At the time of Joseph, Jr.’s birth, the father provided the hospital in Scranton with an address in Waterbuiy, but department personnel were never able to verify that the father ever resided at that address. It was not until October, 2006, that the father provided department personnel with an address, which was not in Waterbury. Since that time, the father has complied with this step.
On November 11, 2006, Warren Corson HI, a psychologist, initiated services with the father. To assess the father’s needs, Corson met with the father four times. Corson recommended that the father could benefit from individual and family therapy to help him address his issues relating to the department’s involvement in his life and related adjustment issues. Corson further diagnosed the father with an axis II personality disorder not otherwise specified, but the father continued to state that he did not feel the need for counseling and scheduled no further appointments with Corson until February, 2007. In October, 2007, Corson discharged the father from services due to the father’s failure to maintain regularly scheduled appointments. The father maintained that his lack of transportation prevented him from attending his appointments. On October 30, 2007, Corson agreed to provide services for the father again under specific conditions made known to the
On November 21, 2006, the father participated in an initial home visit with the Northwest Center for Family Services and Mental Health parent aide program (parent aide program). He was unreceptive and distracted during a home visit in December, 2006. He articulated annoyance at having to answer hypothetical parenting questions and requested that the meeting be held at a time different from when he was visiting with his children. To address the father’s concerns, the parent aide program modified its involvement to include one scheduled visit with and one without the children. Parent aide service providers advised department personnel that the father had a difficult time setting goals and developing a treatment plan for himself because he did not believe that he needed help to be a parent to his children. He believed that he possessed strong and appropriate parenting skills. The only reason he was engaging in services, he stated, was the advice of his attorney. Service providers for the parent aide program reported to department personnel on February 12,2007, that they were closing the father’s case, as they believed that the program was ineffective for him.
Another step the father was to follow was to cooperate with in-home support services referred by department personnel. In August, 2006, the father began a one year parent education program offered by the McCall Foundation’s Parent Education and Assessment Services program. Coutant-Skinner, the program worker, reported that the father generally engaged his children appropriately during the visits she observed, but his parenting deficits arose due to his lack of cooperation
The department engaged Delta-T Group to provide supervision and parenting instruction for the father during parent-child visits in December, 2006. The father initially was cooperative but over time demonstrated oppositional and passive aggressive behaviors when offered suggestions on how to better meet his children’s needs during visits. He provided care for his children during his twice weekly supervised visits, but at times, he failed to address his children’s needs. For example, he resisted disciplining Joseph, Jr., and failed to provide adequate parental interventions when needed, failed to recognize the need to get his children out of the hot sun, allowed them to wander too close to a busy traffic area and resisted having Joseph, Jr., sit in a high chair to be fed although it was developmentally appropriate. The father repeatedly was oppositional when asked to proyide the children with a nap and a routine during visits.
The father substantially failed to comply with service providers for parenting, individual and family counseling, in-home support services and substance abuse assessment and treatment, as determined by department personnel. Members of the department referred the father to The Family Intervention Center, Charlotte Hungerford Behavioral Health Center, the Family
The court found that the father failed to cooperate with court-ordered evaluations or testing and followup recommendations. He met with Humphrey on February 3, 2006, for an evaluation, but the evaluation was delayed as the father would not speak with Humphrey until the father’s attorney was present. The father had not advised Humphrey or department personnel of his desire to have an attorney present until the start of the appointment. The father’s attorney was contacted and arrived one hour into the appointment. During the evaluation, Humphrey administered the personality assessment inventory to the father to provide information on critical client variables that he deemed central to devising a treatment plan, implementing it and evaluating a client. Humphrey found the father’s profile to be “entirely invalid,” construing the father’s score as the father’s attempt to present himself as a person “extraordinarily free of common faults.” Humphrey made several specific recommendations regarding the steps he wanted the father to take toward a reunification plan. Humphrey’s recommendations included the father’s informing department personnel of his specific child care plan, including alternate caregivers and permitting department personnel into his home to determine its suitability for the children’s care. In keeping with the recommendations, department personnel sent the
On September 26, 2006, Humphrey conducted a second court-ordered psychological evaluation of the respondents. Humphrey recommended that the respondents together consult with a psychotherapist experienced in treating individuals with a history of neuropsychological deficits. According to Humphrey, this type of consultation would instruct the respondents as to the nature of the mother’s condition, assess their understanding and integration of the information, and, if successful to that point, help them develop strategies and coping mechanisms that would minimize interpersonal conflict and provide for effective supervision of the children. Humphrey recommended that the respondents engage in a clinical environment designed to assist both of them in better understanding the mother’s mental health and medical issues. Humphrey also recommended that the father continue to engage in parenting assessment services. The father failed to follow Humphrey’s recommendations.
The father complied, although not initially, with the step to sign releases authorizing department personnel to communicate with service providers to monitor attendance, cooperation and progress made toward identified goals and for future use in court.
The father was to maintain adequate housing and legal income. The court found that the father shares a home with his mother and his grandmother, but the adequacy of his apartment has never been demonstrated. Prior to December 8, 2006, the father was employed as a night stock clerk in a grocery store. He
The father was to meet and to address the children’s physical, educational, medical or emotional needs on a timely and consistent basis. Among other things, he was to keep the children’s appointments with medical, psychological, psychiatric or educational providers. He also was to attend their regularly scheduled pediatric appointments. He attended two pediatric appointments with Joseph, Jr., and Daniel, but he failed to attend a scheduled pediatric appointment on April 24, 2007.
The father was ordered to advise department person- • nel immediately of any changes in the composition of his household to ensure that such changes would not compromise the health and safety of his children. Departmental personnel learned of the composition of the father’s household in November, 2006. He has been relatively compliant with this step although department personnel believe that the mother occasionally has resided with him in violation of court-ordered steps.
The father has complied with the step that he visit with his children as often as permitted by department personnel. Initially, he visited his children for two hours
With respect to various other steps, the court found that they were inapplicable or that the father had complied with them. The father was not involved with the criminal justice system and had not engaged in substance abuse. He also did not take the children from the staté of Connecticut during the pending proceedings.
To terminate parental rights, the petitioner must prove by clear and convincing evidence the statutory element requiring the department to make “reasonable efforts to locate the parent and to reunify the child with the parent . . . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” General Statutes § 17a-112 (j) (1); see also In re Christopher B., supra, 117 Conn. App. 779-80. Section 17a-112 (j) (1) “imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004). The court found that the department had made reasonable efforts to reunify the father with his children but that he repeatedly, by his own volition, failed to engage in and to take advantage of
On appeal, the father claims that the department was in violation of the statute when it stopped providing him with services after the children were adjudicated neglected in August, 2007, although he was permitted to continue visiting Joseph, Jr., and Daniel. He claims that his situation is similar to those in In re Vincent B., 73 Conn. App. 637, 640-41, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003), in which the minor child’s father appealed from the termination of his parental rights, claiming that the department failed to make reasonable efforts to reunify him with his son when it stopped offering services, other than visitation.
In In re Vincent B., the father successfully participated “in a lengthy treatment program in May, 2001, [and] regularly visited with [the child]. [Melody Carr, a department social worker] testified that [the father] was consistent in visiting with [the child], that he acted appropriately with [the child] at those visits and that
In this case, the father left the state when the mother was about to give birth to Joseph, Jr., to avoid department intervention in their lives. The father apparently was unaware of or ignored the mother’s obvious mental health and medical issues or the needs of a newborn. When Joseph, Jr., was bom in Pennsylvania, however, medical providers and child protection authorities, individuals not previously familiar with the respondents, immediately recognized that Joseph, Jr.’s safety and welfare were at risk within a day or two of his birth. Joseph, Jr.’s custody was transferred to the petitioner on the basis of predictive neglect. See In re T.K., 105 Conn. App. 502, 513, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
The record is replete with numerous services offered to the father. The court found that the father was openly hostile and resistant to assistance from department personnel and refused to cooperate with them and service providers. He was discharged from every service for unsuccessful participation. In November, 2006, the father began weekly appointments with Corson, a psychologist specializing in the treatment of individuals with personality disorders. The father, however, missed appointments without giving notice and sometimes refused to talk. Corson tried to accommodate the
I would affirm the judgments.
Judge Goldstein found that Joseph, Jr., was in “immediate physical danger from surroundings.” See In re T.K., 105 Conn. App. 502, 513, 939 A.2d 9 (“[t]he doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred”), cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
Judge Trombley found that Daniel was in “immediate physical danger from surroundings.” See In re T.K., 105 Conn. App. 502, 513, 939 A.2d 9 (“ [t]he doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred”), cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
Additional facts related to the neglect proceedings will be set forth in part I of this dissenting opinion.
The father in these cases is not the daughter’s father.
Judge Olear took judicial notice of the facts found by Judge Bear in terminating the mother’s parental rights as to the daughter. See In re Kristina H., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, Docket No. 2007724 (January 17, 2007). Judge Bear found, among other things, that the mother was always tired, was diagnosed as suffering from narcolepsy and characteristically does not take her medication. She has a self-reported history of self-defeating interpersonal difficulties and conflicts and a multiyear history of housing transience. After the daughter’s birth, the mother had a psychotic reaction. The daughter was certified as being medically complex due to her premature birth, intrauterine growth retardation, placental insufficiency, low birth weight, slow weight gain and feeding adaptation. The mother opposed the specialized care the daughter received. The daughter’s father told a department worker that he was somewhat concerned at the hospital because the mother persisted in claiming that their child was a boy, but he later felt assured that the mother posed no threat to the daughter. The mother was argumentative with the daughter’s pediatrician and opposed medical advice to immunize her against certain diseases.
The foster family had adopted the daughter.
In making findings during the dispositional phase of the trial, the court found that the father did not provide personnel at the hospital where Joseph, Jr., was bom with an address that could be confirmed as his residence. The father did not provide department personnel with his address until October, 2006.
I agree with the majority that the father did not stand silent at the neglect hearing, and the court’s finding in that regard is clearly erroneous.
I agree with the majority that the construction of our rules of practice is a question of law and that the principles governing the construction of statutes applies. See Malave v. Ortiz, 114 Conn. App. 414, 417, 970 A.2d 743 (2009).
Other than his own testimony, the father offered no other evidence to prove that he was a custodial parent.
The case law on which the majority relies for the proposition that a parent is a custodial parent—Doe v. Doe, 244 Conn. 403, 476, 710 A.2d 1297 (1998) (Katz, J., concurring in part and dissenting in part); Boardman v. Boardman, 135 Conn. 124, 129, 62 A.2d 521 (1948); Dunham v. Dunham, 97 Conn. 440, 442, 117 A. 504 (1922), overruled in part on other grounds by Freund v. Burns, 131 Conn. 380, 385, 40 A.2d 754 (1944)—are dissolution actions in which the parents litigated as to who should have custody of their minor child. In dissolution actions involving minor children, trial courts of this state repeatedly are called on to award custody of the children to one or both biological parents who are their guardians. The cases relied on
The majority also cites the testimony of Kathleen Dayner, a department social worker, that the department considered the father to be a custodial parent. Dayner’s testimony is nothing more than that. Whether a parent is a custodial parent, as the majority points out, is a question of law for the court to determine.
At footnote 29 of its opinion, the majority states that there was no evidence that the mother presented evidence that she was a custodial parent. That assertion is irrelevant to the claim raised by the father in his appeal. If the mother had contested the neglect petitions, she may have been required to prove that she was a custodial parent, but the fact of the matter is that she pleaded nolo contendere. The rights of the mother and the father are separate. Judge Bear acknowledged that the father had the right to contest the neglect petitions if he were a custodial parent of the children. Judge Bear gave the father the opportunity to demonstrate that he was a custodial parent. Judge Olear, however, found that the father was not a custodial parent, and, therefore, he was not permitted to contest the neglect petitions.
Significantly, the father claims that the court’s finding, not the dictates of the rules of practice, violated his rights to due process and equal protection.
The earlier procedural history is set out in full in the majority opinion.
In In re Vincent B., supra, 73 Conn. App. 642-45, the father had failed to avail himself of services to treat a lengthy alcohol addiction. His parental rights as to two of his other children were terminated in April, 1999, and February, 2000, respectively. The father thereafter voluntarily entered treatment, and, during that time, the petitioner sought to terminate his parental rights as to Vincent B. and offered the father no services and made no efforts at reunification.
Reference
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- In Re Joseph W., Jr., Et Al.
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