Connecticut Appellate Court
90 Conn. App. 565 (2005)
August 2, 2005
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
Filed in Tags: Abuse and Neglect
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