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This
case involves the termination of parental rights where neither the
children nor the parents want a separation, and where no guardian
ad litem was appointed despite the children's wishes conflicting
with their attorney's representation of their best interest. In
January of 2000, the couple's two daughters were taken into custody
following a domestic violence incident between the mother and father
that led to the father's arrest. The children remained in DCF custody
and were deemed neglected on July 12, 2000, at which time they were
committed to the commissioner. DCF provided with family reunification
services and the father completed an anger management program. On
January 26, 2001, the two children were reunified with their parents
and newborn sister and the family continued to receive family reunification
services. The department then received a report that the mother
and father had struck each other and the children. All three daughters
were taken into the custody of the commissioner on October 31, 2001.
The children have not been reunified with their parents to date.
The parents also had a baby boy who remains in their custody.
The parents
properly raised three claims on appeal:
FIRST,
both parents challenged the finding of the trial court that the
facts presented established by clear and convincing evidence 1)
that DCF made reasonable efforts to reunify the family; 2) that
the parents had not achieved sufficient rehabilitation; and thus
3) it would be in the best interests of their three daughters to
terminate their parental rights. They did not challenge any of the
facts as stated by the court, but asserted that the court failed
to take into account the affect that poverty and mental limitations
had on their ability to meet the department's standards for appropriate
parental behavior.
In response
to this claim, the court commented on the difference between "parental
love" and "parental competence." It notes the differences between
what the parents view as necessary practices for keeping their children
clothed and safe and what the department views as unhealthy and
unsafe conditions. Reasoning that it cannot find facts or reweigh
evidence, the court finds no support for holding that the trial
court was clearly erroneous. Therefore, the appellate court held
that it was proper for the trial court to find, pursuant to Connecticut
General Statutes section 17a-112(j)(3)(b)(ii), that the commissioner
had established, by clear and convincing evidence, that, despite
the training in parental skills provided to the parents, they did
not have the ability to care for their daughters.
SECOND,
both parents claimed constitutional error with the trial court for
not appointing a guardian ad litem to represent the best interests
of the children in addition to the lawyer that was appointed to
represent the children's legal rights.
Because
this issue was not raised before the trial court, the appellate
court applied a Golding standard to determine if it could nonetheless
be reviewed on appeal. The court agreed with the parents that C.G.S.
§ 46b-129a, which confers the constitutional right to counsel upon
children in neglect proceedings, should apply to termination of
parental rights proceedings. The statute requires that a guardian
ad litem be appointed when a conflict arises between the child's
wishes and that which counsel believes is in the best interest of
the child. However, the appellate court did not agree with the parents
that the statute put a constitutional burden on the trial court
to recognize where such a conflict exists. The appellate court,
relying on Rule 1.2(a) of the Rules of Professional Conduct, found
that the childrens' counsel bears the burden of bringing such a
conflict to the court's attention. Only at this point is a burden
placed on the court to appoint a guardian ad litem. The appellate
court thus found that the parents had failed to satisfy the third
prong of Golding, reasoning that the court's failure to point a
guardian ad litem on its own initiative did not result in
a clear violation of the daughters' constitutional rights.
THIRD,
the father claimed that the due process provision of Aritcle I,
sections eight and ten, of the state constitution requires proof
beyond a reasonable doubt for the termination of economically disadvantaged
parents and therefore the "clear and convincing" standard set forth
in C.G.S. § 17a-112(j) is unconstitutional.
The court
noted the six relevant factors set forth in State v. Geisler, 222
Conn. 672, 684 (1992) for reviewing state constitutional claims
but did not address each of these factors in its reasoning. For
his contention that the commissioner's burden of proof must be beyond
a reasonable doubt, the father relied primarily on the application
of this standard by the New Hampshire Supreme Court. That court
has reasoned that the termination of parental rights is sometimes
a more severe deprivation of liberty than imprisonment and therefore
the same standard of proof used in criminal convictions must be
applied in proceedings involving the termination of parental rights.
The appellate court rejected this analysis by relying on its own
precedent. First, the court reasons that termination proceedings
are not criminal or quasi-criminal in nature. In re Samantha C.,
286 Conn 614, 659 (2004). And second, that "a validly enacted statute
carries with it a strong presumption of constitutionality." Alexander
v. Commissioner of Administrative Services, 86 Conn. App. 677, 684
(2004). The appellate court, relying again on its own precedent,
also rejected the father's alternative theory that the balancing
test in Mathews v. Eldridge, 424 U.S. 319 (1979) supported his contention
that, in termination proceedings, due process requires proof beyond
a reasonable doubt. See In re Tyqwane v., 85 Conn. App. 528, 537-39
(2004).
FOURTH,
and finally, the father claimed that the state constitution requires
the appellate court to review the trial court's findings de novo
rather than applying the clearly erroneous standard of review. The
appellate court dismissed this claim as untimely because it was
only first raised in the appellant's reply brief.
In an
important development, the Supreme Court granted the parents' petition
for review on the following two issues in In re Christina M.,
276 Conn. 903 (2005):
1. Whether
the Appellate Court properly concluded that the trial court does
not have a constitutional obligation to appoint an independent attorney
to advocate for the express wishes of a child, who is the subject
of a termination of parental rights petition, when those wishes
conflict with the position advocated by the child's present counsel?
"2. If
the answer to the first question is 'no,' whether deprivation of
that right by an attorney who advocates a position contrary to the
express wishes of the child causes 'structural error' in a termination
proceeding creating a presumption of prejudice?"
The case
may be found at the Judicial Branch website: http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP90/90ap437.pdf
Natalie
Wagner, Legal Intern
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