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Historically
speaking, Connecticut's appellate courts have demonstrated a strong
predilection to affirm judgments terminating parental rights of
parents in child protection proceedings. In a rare exception to
form, the Appellate Court overturned a trial court's termination
of parental rights in In re Shaiesha O and directed a judgment
in favor of a defendant father. Describing its task as "Herculean,"
the court found that because the Department of Children and Families
("Department") had "failed, completely," in its responsibility to
make reasonable efforts to reunify the defendant father with his
daughter Shaiesha, it had no choice but to enter judgment in favor
of the father.
The Department
invoked a 96 hour hold and obtained an order of temporary custody
from the Juvenile Court shortly after Shaeisha's birth in April
2002. In August 2002, the court adjudicated Shaiesha neglected and
placed her in the custody of her mother in an inpatient substance
abuse program. The Department sought and re-obtained custody in
December 2002, and then, in a strange turn of events on December
10, 2002, Shaeisha's mother indicated that the man she originally
identified as Shaeisha's father was not in fact her father, but
that the respondent was her birth father. In March 2003, the Department
notified the respondent, and paternity tests confirmed this assertion
on June 10, 2003. Incredibly, on June 3, 2003, one week prior to
learning the results of the paternity test, the Department filed
a TPR petition against both the mother and the newly discovered
father. The court terminated both parents' rights in September 2004
after a five day hearing.
The crux
of the appeal focused on the nature and extent of the Department's
reunification efforts. In an important finding, the court indicated
that the trial court is required, in the adjudicatory phase of the
TPR proceeding, to make its assessment regarding reunification on
the basis of events "preceding the date on which the termination
petition was filed." Citing Practice Book § 35a-7(a), the court
found that the trial court did not make the requisite finding, and
the record would not have supported such a finding if offered. Citing
the Department's dilatory conduct after Shaeisha's mother revealed
the respondent to be Shaeisha's actual father. In addition, the
Department social worker testified that the first contact she had
with the father regarding a possible placement plan for Shaiesha
was after the filing of the TPR petition. The social worker
indicated that the Department would not foster a relationship between
the two until paternity was scientifically established. The appellate
court, while somewhat sympathetic to this rationale, remained unconvinced
because of the absence of effort to reunify the two parties. Ironically,
the Department admitted that it facilitated visitation and reunification
efforts on behalf of the individual first identified as Shaeisha's
father prior to the paternity test that indicated he was not Shaeisha's
father.
The case
is notable in that, according to child protection experts, it is
the first to expressly say that the question of whether DCF made
reasonable efforts, in the context of a TPR case, must be determined
as of the date the petition was filed. While that conclusion is
implicit in earlier decisions, neither the state Supreme nor Appellate
court has come out and said it until this case.
The case
may be accessed by going to the state Judicial Department website
at: www.jud.state.ct.us/external/supapp/Cases/AROap/AP93/93AP103.pdf
(JES)
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