In re Joseph W., Jr.

Connecticut Supreme Court

June 28, 2012

STANDARD OF PROOF IN PREDICTIVE NEGLECT CASES/ADA APPLICATION

In reversing the trial court’s adjudication of neglect the Connecticut Supreme Court articulated the proper standard for finding children are neglected under the theory of “predictive neglect.”  The Court clarified that, to find “predictive neglect,” the trial court must find that it is “more likely than not” that the child will be neglected, as defined in Connecticut General Statute §46b-120(8), if the child is allowed to stay in the home.

In this case, a trial court entered a finding of predictive neglect against a mother and father.  In the standard applied by the trial court, the petitioner in the neglect proceeding was only required to prove by a preponderance of the evidence that there was a “potential risk” of neglect if the child remained with his parents.  The standard for what constituted a “potential risk” is undefined.  On appeal, the Supreme Court agreed with the respondent that “potential risk” was overly vague and did not encompass the “preponderance of the evidence” standard as the court need only find that there is a 10% risk of harm.  The Court rejected the respondent’s proposed standard that the petitioner must show that, if the child is left in the home, he or she “would be” subjected to conditions injurious or other neglectful conduct.  The Court interpreted this proposed standard as requiring the petitioner to demonstrate that the child “would be” harmed.  The Court noted that the law does not require that the state show or wait for a child to be actually harmed and does not require certainty that harm will occur.  Accordingly, the Court held that so long as the petitioner can show that it is “more likely than not” that a child will be harmed within the meaning of Section 46b-120, this will suffice for an adjudication of “predictive neglect.”

Significantly, the Court also held that, in a predictive neglect case, the preponderance of the evidence burden must be met as to each parent who has expressed a willingness to independently care for the child.  Previously, courts have held that a parent cannot contest whether he or she independently neglected a child because the adjudication of neglect speaks to the status of the child at the time the petition is filed, not with whom liability for that neglect rests.  In a predictive neglect case, however, it is the future neglect that is being proposed, and each parent may seek to show that he or she would not be likely to neglect the child in the future.   If the parents will care for the child jointly, however, the trial court may treat the parents as a single unit when making a determination about predictive neglect.

The parents also argued that they were denied their rights under the Americans with Disabilities Act (ADA).  An earlier appellate court case, In re Anthony B., found that the ADA does not provide a defense to a termination of parental rights petition nor creates special obligations in a termination proceeding.  Here, the mother argued that her case could be differentiated from Anthony B.  by the fact that the present case was a neglect proceeding, not a termination proceeding, and she was not asserting the ADA violations as a defense.  The Court was not persuaded, as it could not determine what remedy she was seeking  (if not an outright defense to the neglect claim).

The father raised a different ADA claim, arguing that the trial court was required to provide a disability coordinator to make sure that the mother was not denied access to the courts.  The Court rejected this claim, since the father made no offer of proof about being disabled, there was no requirement that disability coordinators be provided in these trials, and neither parent had requested that a guardian ad litem be appointed.

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