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In a
companion case to the significant Supreme Court case of Jeisean
M. (see Jeisean M., 270 Conn. 406), the Supreme Court affirmed the
termination of parental rights of a mother who indulged in illegal
substance abuse and failed to adequately rehabilitate herself in
the eyes of the trial court.
Jeisean
M. was born on December 23, 1999. He and his mother lived with her
sister who helped care for Jeisean. On one occasion in March 2000,
the mom left Jeisean in her aunt's care and did not return that
night or the next morning. While mom was out of the house, Jeisean
began to have difficulty breathing, and the aunt, who could not
drive him to the hospital, called the Department of Children and
Families (DCF) for assistance. After Jeisean received appropriate
care, a DCF investigator interviewed Jeisean's mom, who said that
she had not returned home the previous evening because she had passed
out after ingesting the drug Ecstasy. These actions resulted in
DCF seeking and obtaining an order of temporary custody and Jeisean's
placement in a foster home.
Over
the next several months, a DCF social worker made efforts to engage
Jeisean's mom in rehabilitation efforts so that reunification could
occur. However, despite referrals to several agencies offering free
services and transportation, the mother failed to comply. On June
20, 2000 the court adjudicated Jeisean a neglected child who required
specialized care and committed him to DCF's custody through June
20, 2001. The court also ordered specific steps for the mom to complete
to effectuate reunification. These included remaining clean and
sober, attending parenting classes, visiting with Jeisean on a weekly
basis, finding stable income and finding a place to live. Jeisean's
mother failed in all respects except for the parenting classes,
which she passed and received a certificate of completion.
The juvenile
court held a hearing on May 17, 2001 at which time the court extended
Jeisean's commitment for another year, indicating that it was no
longer in Jeisean's best interest to continue reunification efforts.
The court proposed a permanency plan calling for the termination
of parental rights ("TPR") and adoption. In July 2001, DCF petitioned
for TPR based on the theory that it was no longer appropriate to
reunify Jeisean and his mother and the fact that mom had "failed
to achieve such degree of personal rehabilitation as would encourage
the belief that within a reasonable time...[Jeisean's mother] could
assume a responsible position in [his] life...[1]
"
In November
2001, the court held a TPR trial, at which time new counsel represented
Mom [2]. At
trial, DCF admitted that it had forgotten to previously ask the
judge to take judicial notice of the facts found at the May 17,
2001 hearing. Mother's attorney objected based on the fact that
he was not counsel of record at the time of the findings of fact
and that therefore he was unable to assess the lawfulness of the
proceedings. After argument, the court overruled the objection and
took judicial notice of the previous findings of fact. On February
15, 2002, the trial court granted the TPR petition, finding by clear
and convincing evidence that termination was in Jeisean's best interest
and that Jeisean's mother had failed to achieve sufficient personal
rehabilitation as required under Conn. Gen. Stat. §17a-112(j).
On appeal,
mom contended that the trial court improperly took judicial notice
of the May 17, 2001 findings of fact. She based her argument on
the premise that statutorily, DCF is required to give timely notice
of its request for the court to take judicial notice of fact [3].
The Court demurred, however, indicating that pursuant to State v.
Zayas [4],
as long as the actions are between the same parties, a court can
take judicial notice of any fact as long as the parties are each
offered an opportunity to be heard on the issue.
Here,
the court afforded Jeisean's mother the opportunity to be heard
on the issue regardless of the fact that DCF had not announced its
intent to introduce the previous findings of fact. In addition,
since the parties were the same and the same standards of proof
applied, the fact that there was different counsel did not make
a difference in the judge's decision of whether to take judicial
notice of facts. Furthermore, the attorney of record during the
November 2001 termination hearing was Mom's attorney for over three
months, giving him plenty of time to assess the lawfulness of the
proceedings and raise any objections he may have had.
This
case may be accessed on-line by going to the state's Judicial Department
website by going to www.jud.state.ct.us/external/supapp/Cases/AROcr/CR270/270cr91.pdf
(Johanna
Gordon, Legal Intern 8/04)
[1]
Conn. Gen. Stat. §17a-112(j)
[2]
Mom's former council’s motion for withdrawal was granted after Mom
failed to maintain contact with her.
[3]
Conn. Code Evid. §2-2
[4]
195 Conn. 611, 615 (1985)
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