52 Conn. App. 576 | Conn. App. Ct. | 1999
Opinion
In this proceeding for termination of the parental rights of the respondents with respect to their son, David, both the father (AC 17313) and the mother
In seeking to reverse the judgment, the respondents contend that (1) the doctrine of res judicata bars reliance on General Statutes (Rev. to 1995) § 17a-112 (b) (2) , which requires a prior adjudication that a child has been neglected or uncared for, (2) the petitioner was estopped from claiming that the respondents had not achieved a sufficient degree of rehabilitation to resume their parental roles because certain employees of the department had assured them that their progress toward reunification with their child had been good and (3) the trial court should have stricken the testimony of a psychologist who had been appointed by the court to evaluate the rehabilitation progress of the parents because he had also been contacted by counsel for the department to testify as its expert witness concerning the rehabilitation of the parents. We conclude that there is no merit in the claim of res judicata and that the claimed misrepresentations made to the parents had no impact on the judgment, but that the motion to strike the testimony of the psychologist should have been granted because of his agreement to act as an expeit witness for the department of children and families (department) after he had been appointed by the trial court to evaluate the parents and because of his ex parte contacts with counsel for the department.
On September 8,1993, the child was discharged from the hospital and placed in the care of the department, which obtained an order of temporary custody on the same date. After a study by the department foster care unit, he was placed with a couple known to the respondents. The child has resided with the couple since December 24, 1993, but the respondents have visited him, as permitted by the department, since that time, either at their home or at the home of the foster parents. On January 11,1994, the respondents pleaded nolo con-tendere to the neglect petition that the commissioner had filed. The court, Barnett, J., adjudicated the child to be a neglected child pursuant to General Statutes (Rev. to 1993) § 46b-129 (d)
I
The respondents argue that res judicata requires reversal of the judgment of the trial court terminating their parental rights because of the failure of the commissioner to seek such termination in the neglect proceeding in which the commissioner sought custody of the child after learning of the injuries he had sustained while living with his parents. “[C]laim preclusion [or res judicata] prevents a litigant from reasserting a claim that has already been decided on the merits. . . . Under claim preclusion analysis, a claim—that is, a cause of action—includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.” (Citations omitted; internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992). “The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983).
The legislative goal of reuniting a neglected child with its parents, when feasible, would be seriously undermined by allowing the judgment transferring custody to the commissioner in a neglect proceeding to bar a subsequent petition for termination of parental rights, even though the neglect adjudication constitutes part of the ground for termination set forth in § 17a-112 (b) (2). That subsection refers explicitly to “the
Although General Statutes (Rev. to 1995) § 17a-112 (e)
II
The respondents next claim that the commissioner should be estopped from maintaining that they had not made sufficient progress in achieving rehabilitation toward the goal of reunification with their child because of statements made by employees of the department to the respondents that their progress toward that goal was good. We conclude that there was a lack of candor on the part of the department, but that the misrepresentations made to the respondents concerning their rehabilitation had no adverse impact on the respondents or on the judgment.
The respondents claim that the doctrine of promissory estoppel is applicable because of the assurances they received from employees of the department concerning their progress in rehabilitation therapy toward
Although the respondents have not raised a claim of equitable estoppel, it is appropriate to address it in the present case because of the close relationship between promissory and equitable estoppel. The absence of a clear and definite promise would not preclude application of the doctrine of equitable estoppel, but its two essential elements must be proved: “the party against whom estoppel is claimed must do or say something calculated or intended to induce another to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982). The statements made to the respondents that their progress in therapy was good, encouraging them to continue attending the therapy sessions, might arguably satisfy the first element, but there is no basis in the
It must be remembered that the petitioner in this case is the commissioner of an agency of the state of Connecticut. “[Ejstoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987). The respondents could not have reasonably assumed that the employee of the department who told them that their progress in rehabilitation was good had the authority to make the ultimate determination of whether they would likely achieve a degree of rehabilitation sufficient to warrant return of their child. The statements claimed as misrepresentations may well have encouraged the respondents to continue their course of therapy, from which they have benefited significantly, as the trial court found. We conclude that the trial court properly rejected the respondents’ claim of estoppel.
Ill
Before the trial of the present case, the trial court appointed a clinical psychologist to evaluate the suit
On cross-examination, the psychologist testified that he was contacted by an assistant attorney general, who asked him to meet with her to review the case, and he did so. She asked him to do a developmental assessment and a home study. A social worker called him and requested that he do the follow-up developmentals and collateral contacts. The psychologist testified that each time he was contacted he was told whether he was working for the court or for some other party. He admitted that, with respect to at least one of the evaluations he had made, he knew he was not acting as a court-ordered evaluator. He also testified that he was told not to talk to other counsel without direction from the assistant attorney general and that he may have refused to talk with counsel for the respondents without such consent.
Counsel for the respondent father
“A basic purpose of appointing an expert is to provide the trier of fact with a neutral viewpoint when the parties’ experts are in conflict.” 29 C. Wright & V. Gold, Federal Practice and Procedure (1997) § 6305, p. 482. “An expert witness appointed by the trial court to obtain disinterested and unbiased testimony, either under statute or pursuant to its inherent power, is an officer of the court and does not appear as the witness of either party.” 31A Am. Jur. 2d, Expert and Opinion Evidence § 16 (1989); United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971). “Fairness requires that the examining psychiatrist pursuant to a § 4244 motion [to determine competency of a defendant to stand trial] be an officer of the Court and responsible neither to the defense nor the prosecution.” United States v. Pogany, 465 F.2d 72, 78 (3d Cir. 1972). Even the court should refrain from ex parte contact with an expert it has appointed to serve as a neutral witness.
If obtaining impartial expert testimony was the purpose for appointing the psychologist who testified for the department in this case as the court’s expert witness, that objective plainly was not achieved. Unauthorized ex parte communications with a court-appointed
The denial of the motion cannot be regarded as a harmless error, as the dissenting opinion contends. The memorandum of decision indicates that the trial court relied substantially on the testimony of its appointed expert in deciding that the respondents’ parental rights should be terminated. The experts who testified on behalf of the respondents, a licensed marriage and family therapist and a clinical psychologist, opined that more time should be allowed for reunification, which could be accomplished by increasing visitation gradually.
The judgment is reversed and the case is remanded for a new trial.
In this opinion SULLIVAN, J., concurred.
General Statutes (Rev. to 1995) § 17a-112 (b), as amended by Public Acts 1995, No. 95-238, provides: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds that the department of children and families has made reasonable efforts to reunify the child with the parent and, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. The requirement that the department of children and families has made reasonable efforts to reunify the child with the parent shall not apply to terminations of parental rights based on consent or terminations of parental rights where such reasonable efforts at reunification were not possible. If the court denies a petition for
General Statutes (Rev. to 1993) § 46b-129 (d), as amended by Public Acts 1993, No. 93-91, provides in relevant part: “Upon finding and adjudging that
General Statutes (Rev. to 1995) § 17a-112 (d), as amended by Public Acts 1995, No. 95-238, provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent,; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court, may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”
General Statutes (Rev. to 1995) § 17a-112 (e) provides: “Any petition brought by the commissioner of children and families to the superior court, pursuant to subsection (a) of section 4Gb-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and families. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The superior court, after hearing, in accordance with the provisions of subsection (b) of this section, may, in lieu of granting the petition filed pursuant to section 461)-129, grant the petition for termination of parental rights as provided in section 45a-717.”
The attorney for the respondent mother did not join in the motion to strike the psychologist’s testimony nor does her brief raise the denial of that motion as a ground for a new trial. Nevertheless, our order for a new trial because of the denial of that motion applies to the respondent mother as well as the respondent father. They were both adversely affected by the ruling that we conclude was incorrect. Neither the father nor the mother sought to retain parental rights apart from the other. It would be incongruous to order a new trial for the father only.
Rule 706 (a) of the Federal Rules of Evidence provides that an expert witness appointed by the court “shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. . . .” The record in this appeal does not reveal what instructions the psychologist appointed by the court received concerning his duties. Practice Book § 25-33, which requires an expert witness appointed by the court to be informed of his duties by the court either in writing or at a conference in which the parties have a right to participate, did not become effective until after the trial of the present case.