250 Conn. 674 | Conn. | 1999
Lead Opinion
Opinion
In this certified appeal, we must decide whether the Appellate Court properly reversed the judgments of the trial court terminating the parental rights of the respondent mother, Ann F., with respect to her two daughters, Eden and Joann. Specifically, we must determine whether the Appellate Court properly concluded that, pursuant to General Statutes (Rev. to 1995) § 17a-112,
The opinion of the Appellate Court; In re Eden F., 48 Conn. App. 290, 710 A.2d 771 (1998); sets forth the following relevant facts. “Ann F. was born in Hartford on February 27, 1959 . . . [and] spent the majority of her childhood in a foster home. In 1975, at the age of fifteen,
“While at Norwich, Ann F. met and married Thomas F.
“Although on January 31,1991, the court granted [the department’s] petition to extend Eden’s commitment, Eden began living with [Ann F.] on February 1, 1991. While Eden lived with [Ann F., the department] worked with Ann F. and provided a number of services to her. On June 13, 1991, the [department] filed a petition to
“In 1992, [the department] received four referrals concerning Ann F.’s conduct with Eden, including a report of Ann F.’s yelling, shaking and hitting Eden. Another referral, which was made just prior to the birth of Ann F.’s second child, Joann, on September 8, 1992, was from the Manchester police department on July 16, 1992, alleging that . . Ann F. ... is a repeated complainant of sexual assault and strange goings on at the home. She claims that Randy M., the [alleged] father of . . . [Joann], sneaks in through the window at about 1:30 a.m. and sexually assaults [her].’ That report also stated that she usually slept through it. It also indicated that ‘[t]he condition of the apartment is very slovenly with trash and clutter strewn about. The smoke detector was also deactivated due to the removal of the battery.’ In a call to [the department], Ann F. reported that her boyfriend, Randy M., would break into her apartment with seven men who sexually harassed her and performed witchcraft techniques on her.
“In March, 1993, [the department] received a referral from the Manchester Memorial Hospital emergency room that Ann F. had walked out of the visitor’s lounge leaving Eden, then age four, to care for Joann, then seven months old. At that time, Ann F. was admitted to [that] hospital on a physician’s emergency certificate,
“On March 12, 1993, [the department] filed a petition seeking the commitment of Eden and Joann. On that date, the court granted an order of temporary custody of both children to [the department]. On October 21, 1993, the court adjudicated Eden and Joann neglected based on Ann F.’s plea of nolo contendere. The court committed the children to the department for the statutory period. Also on that date, Ann F. signed, and the court entered, a new set of expectations.
“Ann F. was hospitalized three times in 1993 for mental instability. Eden and Joann were taken for weekly visits with Ann F. while she was in Cedarcrest in 1993. Weekly visitation continued after she returned home. Ann F. continued outpatient treatment at [the clinic]. Throughout the remainder of 1993 and into the first six months of 1994, Ann F. stabilized within her limitations and participated in weekly supervised visits with her two children.
“On June 1, 1994, the department developed what it called ‘an extensive plan ... to determine what was in the best interest of [Ann F.’s] children.’ This plan was to give [Ann F.] every opportunity to prove her parenting abilities and was to be executed through ‘the Exchange Club,’ which would supervise the children’s visits with Ann F. The length of these visits would be increased from one hour to one and one-half hours for seven weeks. If these visits were successful, a series of unsupervised visits could be scheduled.
“Eden was returned to Ann F. on February 27, 1995. Difficulties with the reunification quickly appeared. At the time of Eden’s return, PEDAL was in the midst of conducting a comprehensive evaluation of Eden as requested by the department. As part of this evaluation, Eden was seen for the following: pediatric neurology, psychiatry, ophthalmology, audiology, psychology, education and occupational therapy. The testing for this evaluation occurred from December, 1994, through April, 1995. The results of the PEDAL evaluation were not disclosed until after April 19, 1995. The evaluation
“Upon Eden’s return to [Ann F.[, Eden did not attend school for almost three weeks. The department was aware, before Eden was returned to [Ann F.], that there was a problem with the Manchester board of education in gaining her admission. Nevertheless, the department returned her.
“Additionally, Eden’s parent-child therapy with Thomas Spudic, a psychologist who worked with Ann F. and the children, ceased in December, 1994, when he left Connecticut. Therapy was not resumed until sometime in March, 1995, after Eden was returned to Ann F. Moreover, even though the department made arrangements for a parent aide,
“A crisis telephone line was put in place when Eden was returned to Ann F. The crisis line, aptly named, had as its apparent purpose to enable rapid communication by Ann F. with department staff. On Sunday, March 12, 1995, Ann F. called the crisis line and stated that she ‘needed someone to talk to and Eden had been a little out of control.’
“On Tuesday, March 21, 1995, the department removed Eden from [Ann F.’s] home and returned her to foster care. This removal followed an incident that occurred the prior weekend and also was reported to the department. Ann F., who had been caring for Eden without respite for twenty-four hours a day for about three weeks, went to a bingo game in the neighborhood with a female friend. Ann F. left Eden in the care of two men, one of whom Ann F. hardly knew, but who was acquainted with Ann F.’s female friend. The child of Ann F.’s female friend was also there. When Ann F. returned later that evening, there were beer cans strewn about her apartment, the sink was full of dishes, and Eden’s bedroom was ‘trashed.’ There was no indication, however, that Eden had been harmed in any way.
“The day after the department removed Eden, it received a report of Eden scratching [Ann F.] as well as an anonymous caller who reported hearing Eden cry, ‘[m]ommy, don’t hit me.’
“On April 6,1995, the parties agreed to, and the court granted, an extension of the [the children’s] commitment to the department for the statutory period beginning April 21, 1995. On June 26, 1995, the department filed petitions in the Superior Court, Juvenile Matters, seeking to terminate the parental rights of Ann F., Randy M., the alleged father of Joann, and Thomas F., the
Following the trial, the court, citing § 17a-112 (b) (2), “found by clear and convincing evidence that the parents have not achieved a useful and constructive role as parents; nor, given the needs of the children, especially Eden, [was] such rehabilitation foreseeable within a reasonable time. . . . [Upon consideration of each of the seven factors enumerated under § 17a-112 (d), the trial court] then proceeded in the dispositional phase to find [by clear and convincing evidence] that the termination of parental rights was in the best interests of the children.
“By motion dated August 23, 1996, Ann F. requested reargument. That motion alleged, inter alia, that the [commissioner] . . . failed to prove by clear and convincing evidence that [the department had] made reasonable efforts to reunify either child with [Ann F.].
“The trial court denied the motion in a written memorandum, pointing out that a review of the file reflects that reasonable efforts at reunification were made on
“In addition, Ann F. also filed a ‘Motion for Articulation of Decision Terminating Parental Rights of Mother. ’ The trial court, in articulating its decision, stated, inter alia, that it responded to each of the five specific questions raised [in Ann F.’s motion] including the finding that the department had made reasonable efforts to reunify both Eden and Joann with [Ann F.]. The court concluded that those findings were supported by clear and convincing evidence.” (Citation omitted; internal quotation marks omitted.) Id., 303-305.
On appeal, the Appellate Court concluded that, pursuant to § 17a-112, the trial court was required to find, by clear and convincing evidence, that the department had made reasonable efforts to reunite Eden and Joann with Ann F. See id., 310-11. The Appellate Court further concluded that the facts did not support such a finding with respect to either child. Id., 317. Consequently, the Appellate Court reversed the trial court’s judgment terminating Ann F.’s parental rights with respect to Eden and Joann and remanded the case to the trial court for dismissal of both petitions. Id., 323. On the commissioner’s appeal to this court, we reverse the judgment of the Appellate Court.
We first must decide whether the Appellate Court properly determined that the commissioner was required to prove, by clear and convincing evidence, that reasonable efforts were made to reunify Ann F. with her children. The commissioner claims that she was not required to establish that the department had made reasonable reunification efforts because, contrary to the conclusion of the Appellate Court, § 17a-112 contained no such mandate at the time the petitions were filed in this case.
A
Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the four grounds for termination of parental rights set forth in § 17a-112 (b) exists by clear and convincing evidence.
If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. When the petitions in this case were filed, § 17a-112 (d) required that the trial court, in determining whether to terminate parental rights, “consider and . . . make written findings regarding” seven separate factors, including: “(1) [t]he timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the
The question of whether the commissioner was required to prove that the department had made reasonable efforts to reunify Ann F. with Eden and Joann under the applicable statutory scheme “is a matter of statutory interpretation, which is a matter of law, requiring plenary review. ... In interpreting statutes, our analysis is guided by well established principles of statutory construction. [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998).
At the time that the petitions were filed in this case, § 17a-112 did not contain any language to suggest that the court could terminate parental rights only upon a finding, by a standard of clear and convincing evidence or otherwise, that the department had made reasonable efforts to reunify parent and child. Rather, pursuant to § 17a-112 (b), the trial court was authorized to terminate parental rights upon a showing, by clear and convincing evidence, first, that one or more of the four scenarios set forth in § 17a-112 (b) had been proven, and second, that the termination of parental rights was in the best interest of the child. Although § 17a-112 (d) (1) and (2) mandated that the trial court make written findings
The Appellate Court did not expressly articulate its rationale for concluding that the trial court was required to find, as a predicate to the termination of Ann F.’s parental rights, that the commissioner established, clearly and convincingly, that reasonable efforts were made to reunify Ann F. with Eden and Joann. Ann F. claims, however, that the Appellate Court’s construction of § 17a-112 is supported by our state’s public policy, as expressed by the legislature, “to strengthen the
Ann F. also contends that the federal Adoption Assistance and Child Welfare Act of 1980 (act); 42 U.S.C. § 670 et seq.;
Finally, Ann F. asserts that because principles of due process require proof of the facts that warrant a termination of parental rights by clear and convincing evidence; see footnote 19 of this opinion; we must construe § 17a-112 (b) as embodying the requirement that the commissioner establish, by clear and convincing evidence, that the department had made reasonable efforts to reunite Ann F. with her two children. We disagree. Proof of reasonable reunification efforts is not a constitutionally mandated prerequisite to granting a petition
If, prior to 1995, the legislature had intended to condition the termination of parental rights on a finding that reasonable efforts were made to reunify parent with child, it easily could have expressed this intent. See State v. Desimone, 241 Conn. 439, 455, 696 A.2d 1235 (1997). Indeed, the legislature manifested just such an intent when, in 1995, it amended § 17a-112 to add the requirement that Ann F. would have us read into the pre-1995 amendment version of the statute. No such legislative directive can be found in the language or history of § 17a-112 as it existed prior to its 1995 amendment. See id. (“[ajbsent compelling countervailing reasons, we will not impute to the legislature an intent that is not apparent from the plain statutory language”). Under that statutory provision, the trial court was
B
Alternatively, Ann F. claims that P.A. 95-238, which amended § 17a-112 (b) by adding the requirement that the department make reasonable efforts to reunify parent and child, applies retroactively.
“Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. ... In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law. . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . This presumption in favor of prospective applicability, however,
Neither the language nor the history of P.A. 95-238 contains any indication that the legislature intended that it be applied retroactively. Ann F. contends, however, that the amendment is procedural, rather than substantive and, consequently, we must presume that the legislature intended its retroactive application. Ann F. also claims that the legislative debate on the 1995 amendment indicates that it was intended to clarify the original intent of the earlier statute and, therefore, should be applied retroactively for that reason. In support of her claims, Ann F. relies on several comments made by legislators during the debate on the bill in the House of Representatives.
We disagree with Ann F.’s claims. First, the requirement that the department make reasonable efforts to reunite parent and child affects the substantive rights of the parties to a termination proceeding. The requirement of reunification efforts provides additional substantive protection for any parent who contests a termination action, and places a concomitant burden on the state to take appropriate measures designed to secure reunification of parent and child. Moreover, to the extent that the requirement reflects an important state policy favoring the reunification of parent and
Furthermore, P.A. 95-238, which contains five separate sections, also made other substantive changes in the law.
II
We turn now to Ann F.’s remaining two claims, namely, that the trial court improperly found that: (1) she had failed to rehabilitate herself in satisfaction of the requirements of § 17a-112 (b) (2); and (2) the termination of her parental rights with respect to Eden was in Eden’s best interest.
The opinion of the Appellate Court sets forth the following additional facts that are relevant to our resolution of these two claims. “At the trial, the department produced testimony [in its case-in-chief] from the following: psychiatrist Richard Sadler; psychologist David Mantell; [Crosby]; Janet Romayko, Eden’s therapist in the community; Andrea Moran, one of Eden’s therapists at Natchaug Hospital; Pavinee Saguansatsya, another of Eden’s therapists at Natchaug Hospital; and the foster mother of the children. . . . Ann F. produced testimony from herself; Ilda DePina, a department social service assistant; Candace Stone, Ann F.’s mental health care manager; Steven Alloy, Ann F.’s psychiatrist; Benita Montalvo; Tina DeCosta; and Carol Anne Preste.
“Mantell, a clinical psychologist, prepared court-ordered psychological evaluations in 1993 and 1995.
“Sadler . . . performed an evaluation of Ann F. in September, 1993. At that time, he was unable to assess who was the psychological parent of the children as he did not interview either child, nor did he see them interact with the major parenting figures in their lives. The trial court, in reviewing this report, noted Sadler’s opinion that Ann F. had a stable and chronic psychiatric condition that had seriously impaired her functional abilities over many years, as well as her requirement of repeated hospitalizations and supportive outpatient
“On October 4, 1995, Ann F. indicated to Sadler that the department was ‘going for a Termination of Parental Rights .... I asked to have [Joann] as she’s easier to handle .... Eden came back to me totally depressed. I could handle it.’ He also said that ‘much better than ordinary parenting will be needed [for] Eden in order to deal successfully with her handicaps and to capitalize upon her personality, intellectual and physical strengths.’
“On May 26,1994, [Thomas] Spudic
“Crosby
“At trial, Sadler stated that the department did not consult with him about the reunification before returning Eden to Ann F. . . . Alloy . . . testified that the reunification would have had ‘a greater chance of success to start working [if Ann F. were reunified] with the more normal child, the younger daughter [Joann].’
“In its . . . memorandum of decision, the trial court found in the adjudicatory phase that, in late 1994 and early 1995, [the department] worked with other service
The trial court noted that, by all accounts, Ann F. loves her children and is highly motivated to be reunited with them. Nevertheless, the court found, by clear and convincing evidence, that, largely due to Ann F.’s longstanding and “serious personality disorder that [adversely] affects her ability to interrelate with her children,” she had failed to achieve the requisite degree of personal rehabilitation necessary to satisfy the requirements of § 17a-112 (b) (2). After considering each of the seven factors enumerated under § 17a-112 (d),
A
We first address Ann F.’s claim that the trial court reasonably could not have found that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable period of time, she could assume a responsible position with respect to the care of her children. See General Statutes § 17a-112 (b) (2). We disagree with Ann F.’s contention.
“On appeal, we review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. In re Luis C., [supra, 210 Conn. 166].” In re Romance M., 229 Conn. 345, 353, 641 A.2d 378 (1994). “[G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [O]n review by this court every reasonable presumption is made in favor of the trial court’s
“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ ” In re Marvin M., 48 Conn. App. 563, 578, 711 A.2d 757, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998). “ ‘Rehabilitate’ means ‘to restore [a handicapped or delinquent person] to a useful and constructive place in society through social rehabilitation.’ [Webster’s] Third New International Dictionary. The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).
Our review of the record reveals that the evidence credited by the trial court supports its conclusion that Ann F. had failed to attain a degree of rehabilitation sufficient to warrant the belief that, at some time in the foreseeable future, she would be capable of assuming a responsible position with respect to her children’s care. The trial court reasonably relied on the testimony of the three experts, Spudic, Mantell and Sadler, each of
Ann F. points to certain evidence adduced during the trial tending to establish that, over the years, she has made progress in coping with both her illness and her children.
B
Ann F. also claims that the evidence did not support the trial court’s finding that termination of her parental rights with respect to Eden was in Eden’s best interest. Specifically, Ann F. contends that the termination of a child’s relationship with his or her parents cannot be in that child’s best interest unless the purpose is to free the child for adoption. Because Eden’s foster parents would not commit themselves to adopting Eden, and
Although subsequent adoption is the preferred outcome for a child whose biological parents have had their parental rights terminated; In re Juvenile Appeal (83-BC), 189 Conn. 66, 79, 454 A.2d 1262 (1983); accord In re Baby Girl B., 224 Conn. 263, 274, 618 A.2d 1 (1992); it is not a necessary prerequisite for the termination of parental rights. While long-term stability is critical to a child’s future health and development; In re Romanee M., supra, 229 Conn. 356; adoption provides only one option for obtaining such stability. In this case, Eden’s foster parents, despite hesitancy about committing themselves to adopting Eden, have indicated a willingness to provide Eden with a permanent foster home, assuming that such a placement is determined to be in Eden’s best interest. In light of this testimony, the trial court reasonably could have concluded that the possibility of a permanent placement with Eden’s current
Moreover, the trial court properly considered each of the factors enumerated in § 17a-112 (d), and thoroughly documented its conclusions regarding those factors. See footnote 31 of this opinion. Those conclusions, which need not be repeated here, are fully supported by the record. Consequently, we are persuaded that, in light of all the relevant facts and considerations, including Eden’s special needs and Ann F.’s demonstrated inability to meet them, Eden’s need for permanency and stability, her bond with her foster family and her age, the trial court’s conclusion that the commissioner had demonstrated, by clear and convincing evidence, that the termination of Ann F.’s parental rights was in Eden’s best interest was not clearly erroneous.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgments of the trial court.
In this opinion CALLAHAN, C. J., and BORDEN, J., concurred.
General Statutes (Rev. to 1995) § 17a-112, which governed nonconsensual termination of parental rights at the time the termination petitions in this case were filed, provides in relevant part: “Termination of parental rights of child committed to commissioner, (a) In respect to any child committed to the commissioner of children and families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fomteen may petition the court for the termination of parental rights with reference to such child ....
“(b) The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and 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
“(d) 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 (b), now codified at § 17a-112 (c), was amended by Public Acts 1995, No. 95-238, § 3. See footnote 17 of this opinion. That amendment provides that, with certain exceptions not applicable in this case, the trial court may grant a petition for the termination of parental rights only if it finds, by clear and convincing evidence, that the department of children and families has made reasonable efforts to reunify the child with the parent. Although further revisions since have been made to this statutory subsection, those revisions are not relevant to any of the issues presented by this case.
Unless otherwise provided, all references to § 17a-112 throughout this opinion are to the 1995 revision.
We granted certification on the following issue: “Did the Appellate Court properly conclude that: (1) the petitioner, the commissioner of children and families, was required to prove that she had made reasonable efforts to reunite both children with the respondent mother, and (2) the trial court’s findings in this respect were clearly erroneous?" In re Eden F., 245 Conn. 917, 717 A.2d 234 (1998). In view of our conclusion with respect to the first part of the certified issue, we do not reach the second part.
The Appellate Court did not reach Ann F.’s two other claims in light of its conclusion that she was entitled to dismissal of the termination petitions on the ground that the evidence did not support the trial court’s finding regarding reasonable reunification efforts.
Although we normally would remand the case to the Appellate Court for determination of the two issues not certified by this court, we have decided to address those issues in the interest of expediting the resolution of this case. See In re Juvenile Appeal (83-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983) (“[t]oo often the courts of this state are faced with a situation where . . . litigation has continued for years while the children, whose interests are supposed to be paramount, suffer in the insecurity of ‘temporary’ placements”). In light of our decision to consider those issues, we granted the parties and amicus curiae the opportunity to submit supplemental briefs to address those two issues.
“Ann F. has a ninth grade education.” In re Eden F., supra, 48 Conn. App. 292 n.3.
“Ann F. has also had admissions to Manhattan State Hospital and Bellevue Hospital in New York City, as well as several admissions to Cedarcrest Regional Hospital in Newington." In re Eden F., supra, 48 Conn. App. 292 n.4.
“Apparently little is known of Ann F.’s relationship with Thomas F. except that she considered him to be involved with cocaine and that he was extremely abusive to her." In re Eden F., supra, 48 Conn. App. 293 n.5.
Effective July 1, 1993, the department of children and youth services was succeeded by the department of children and families. See General Statutes (Rev. to 1995) § 17a-l (c). For ease of reference, we refer to the agency as the department throughout this opinion.
“The expectations were papers that described steps Ann F. needed to follow to facilitate the return of Eden to her care.” In re Eden F., supra, 48 Conn. App. 293 n.6.
“On March 12, 1993, a social worker went to retrieve Ann F. from the hospital to transport her and the two children to a shelter when he learned that Ann F. had decompensated and would not be discharged.” In re Eden F., supra, 48 Conn. App. 294 n.7.
“PEDAL is an acronym for program for evaluation of development and learning.” In re Eden F., supra, 48 Conn. App. 295 n.8.
“The parent aide visited Ann F.’s home twice during the three weeks Eden was there in February and March, 1995.” In re Eden F., supra, 48 Conn. App. 297 n.9.
“Although no dates were given, the referral for the parent aide and some pastoral care were made before Eden’s return.” In re Eden F., supra, 48 Conn. App. 297 n.10.
“The department ‘Social Study for Termination of Parental Rights,’ written by Kenneth Crosby, a department social worker, stated the following: ‘[March 17, 1995] this worker called [Ann F.] about her having called the crisis line at 12 a.m. at night the previous Sunday. [Ann F.] stated she had
“The trial court found that such a report had been made, but not that any hitting had in fact occurred.” In re Eden F., supra, 48 Conn. App. 298 n. 12.
The petitions in this case were filed prior to the effective date of the 1995 and 1996 amendments to § 17a-112. See Public Acts 1996, No. 96-246, § 18; Public Acts 1996, No. 96-130, § 39; Public Acts 95-238, § 3. Although 1he trial in this case was conducted after the effective date of those amendments, it is undisputed that the date the petitions were filed — June of 1995— is the operative dale for determining which statutory revision governs this case.
Public Act 95-238, § 3, provides in relevant part: “Section 17a-112 of the general statutes is repealed and the following is substituted in lieu thereof . . .
“(b) 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 nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this seel ion, 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
The Appellate Court did not consider this issue.
“Our statutes define the termination of parental rights as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . . It is a most serious and sensitive realm of judicial action.” (Citation omitted; internal quotation marks omitted.) In re Michael M., 29 Conn. App. 112, 117, 614 A.2d 832 (1992). Thus, “[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State
General Statutes § 17a-101 (a) provides: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.”
Title 42 of the United States Code, § 672 (a), provides in relevant part: “Each State with a plan approved under this part shall make foster care maintenance payments . . . with respect to a child who would meet the requirements of section 606(a) of this title or of section 607 of this title ... if—
Title 42 of the United States Code, § 671 (a), provides in relevant part: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the [secretary [of health and human services] which—
“(15) . . . provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home . . . 42 U.S.C. § 671 (a) (1994).
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), upon which Ann F. relies, does not dictate a contrary result. Under the New York statute at issue in Santosky, the trial court was required to find, as a precondition to granting a termination petition, that the state had “made diligent efforts to encourage and strengthen the parental relationship.” (Internal quotation marks omitted.) Id., 748. The United States Supreme Court concluded that, in light of a parent’s compelling interest in maintaining his or her parental status, the state was required, under the due process clause of the fourteenth amendment, to establish, by clear and convincing evidence, that it had satisfied the statutory conditions for the termination of parental rights, including the “diligent efforts” requirement. Id., 768-69. At no time did the court suggest that a showing of reasonable or diligent efforts at reunification was itself constitutionally mandated. Santosky holds, rather, that the statutory prerequisites to the termination of parental rights must be established, at a minimum, by clear and convincing evidence. Id., 769.
Public Act 95-238 contains no express requirement that reasonable effoxts at reunification shall be proven by clear and convincing evidence. The clear and convincing standard, however, is constitutionally mandated. See Santosky v. Kramer, 455 U.S. 745, 768-69, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); footnote 22 of this opinion. One of the 1996 amendments to § 17a-112; Public Acts 1996, No. 96-246, § 18; expressly provides that the court may grant a termination petition only upon a showing, by clear and convincing evidence, that the department has made reasonable reunification efforts.
We note that Ann F. does not appear to limit her claim regarding the retroactivity of P.A. 95-238 to only certain sections or provisions of that act.
In light of our conclusion that the commissioner was not required to prove that reasonable efforts had been made to reunify Ann F. with Eden and Joann, we need not consider the question of whether the evidence supported the trial court’s finding that such efforts had been proven by clear and convincing evidence. See footnote 2 of this opinion.
The record reflects that Ann F. challenges the trial court’s “best interest of the child” determination with respect to Eden only.
“Montalvo and DeCosta are referred to as ‘friends and neighbors’ of Ann F., while Preste is referred to as ‘another friend’ of Ann F.” In re Eden F., supra, 48 Conn. App. 299 n.14.
“Prior to any adjudication of the petitions, Mantell and Sadler . . . conducted court-ordered evaluations. Both Mantell and Sadler testified at the trial.” In re Eden F., supra, 48 Conn. App. 299 n.15.
Spudic, a psychologist who worked with Ann F. and the children, did not testify at trial. The trial court did, however, rely on two of Spudic’s letters in rendering its decision. In re Eden F., supra, 48 Conn. App. 301 n. 17.
“Crosby, who testified at length during the trial, was a department treatment worker who was responsible for keeping case records involved in these cases. Such a worker basically manages cases, assesses needs, provides services for the rehabilitation of families, provides reports concerning them and the like. He prepared the department’s ‘Social Study for the Termination of Parental Rights’ in the two petitions in this case that came into evidence and the social study was referred to on a number of occasions during the trial.” In re Eden F., supra, 48 Conn. App. 302 n.18.
As required by § 17a-112 (d), the trial court made the following written findings regarding each of the seven factors:
“(1) The [department . . . has offered appropriate and timely services for transportation for visitation, for psychiatric counseling, for alcohol and drug treatment, and support services such as a parent aide, outpatient psychiatric services through Manchester Memorial Hospital, the Horizons program, the Exchange Club, Genesis, the Village for Families, [t]he Family Support Center, and pastoral counseling.
“(2) The court finds that the [d]epartment . . . has made reasonable efforts given the situation and circumstances to provide counseling for Ann [F.], which she has continuously utilized. Efforts to reunite the child, Eden, with Ann [F.], were made in February, 1995. The child was subsequently
“(3) Regarding court orders, fulfillment of obligations, expectations and the like: The court finds that court approved expectations have urged Ann [F.] to secure and maintain clean, safe and adequate housing, which she has substantially done; to attend visitation sessions as often as permitted, which she has done; and to participate in individual counseling and day treatment, which she has done.
“(4) The children’s feelings and emotional ties with the biological parent and foster parents were fully considered by the court. The children are clearly bonded to their foster family. The court-appointed psychologist. . . Mantell, reports that the foster parents are the psychological parents to the children. There is no parental-child bonding. [According to Mantell] ‘[t]here is some evidence of a more distant bonding between [Ann F.] and Eden with great conflict and dissatisfaction in the relationship, particularly on Eden’s side.’ . . .
“(5) With respect to the age of the children, Eden turned eight on July 2,1996. [As of the date of this decision, August 5,1996] Joann is nearly four years of age. These children require stability in their lives, a time to heal without the fear of having to five with Ann [F.], and an affirmation by this court that they have a permanent home. Leaving these children in legal ‘limbo’ would hardly be in their best interest. A three and [one-half] year delay in bringing finality to this placement decision is inordinately long.
“(6) With respect to the efforts [Ann F.] has made to adjust her circumstances, conduct or conditions to malee it in the best interests of the children to return to her home in the foreseeable future, the court finds that Arm [F.] has not demonstrated the parenting abilities in the past, and, given her optimal state of her therapeutic gains, she does not demonstrate even now, adequate understanding of Eden’s needs or an ability to engage Joann in any way other than as a playmate. . . . Sadler indicated that‘[i]ncremental gains may well be made over the years, although it is exceedingly unlikely . . . that [Ann] F. will undergo any dramatic or substantial improvement either in her individual functioning or in her parenting abilities.’ . . . Further delay in providing permanency to these children’s family structure would be inappropriate.
“(7) With respect to any barriers which may have reasonably or unreasonably been placed in the path of Ann [F.] to prevent a meaningful relationship with the children, the court finds that the [department . . . has met its obligations to Ann [F.] by repeatedly offering a variety of services and treatment modalities to her. One of the few consistencies in Ann [F.’s] life appears to be her consistent willingness to undergo treatment for her mental
Ann F. contends that, at trial, she elicited certain concessions from Sadler that weakened the persuasive force of his testimony. Specifically, she notes that the social study report prepared by Crosby did not contain certain historical information helpful to Ann F., and that Sadler, who acknowledged that he had relied on the report, stated that he would have found the omitted information “very important.” Notwithstanding that testimony, however, Sadler never changed his opinion that, in all likelihood, Ann F. never would be able to assume a responsible position in the lives of her children. The trial court, therefore, was entitled to give Sadler’s opinion whatever weight it deemed appropriate.
For example, Ann F. relies on the fact that she was able to care for Eden without serious incident during the three week period immediately preceding the date on which the department finally removed Eden from Ann F.’s care. The trial court, however, was free to conclude that Ann F. had demonstrated poor judgment when she went out to play bingo and left Eden with two men, one of whom she hardly knew, who left Ann F.’s home strewn with beer cans and allowed Eden’s room to be “trashed” while she was in their care.
As Mantell, the court-appointed psychologist, noted in one of his reports: “This is a sad and tragic case. ... I would like to believe that there might have been something that could have been done to reverse this process. Regrettably, [Ann F.] seems to be tragically disabled by the combination of the psychosocial compromises of her childhood and her chronic mental disorder. The quality of her a(Jjustment at any point is fragile, the risk of decompensation ever present, and her prospects are quite dim.” This observation is quoted by the trial court in its memorandum of decision.
At trial, Ann F. claimed that there exists a “strong bias against parents [with] mental illness,” and that Ann F. herself had been “battl[ing]” such bias in connection with this case. Ann F., however, makes no such claim on appeal. Of course, any such bias would be intolerable, and vigilance must be exercised to ensure that the parental rights of mentally ill persons are afforded the full protections provided under our stringent statutory scheme. See generally, e.g., R. Sackett, “Terminating Parental Rights of the Handicapped,” 25 Fam. L.Q. 253 (1991); P. Bernstein, “Termination of Parental Rights on the Basis of Mental Disability: A Problem in Policy and Interpretation,” 22 Pac. L.J. 1155 (1991); see also M. Perlin, “The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?,” 8 J.L. & Health 15 (1994).
Testimony was adduced at trial regarding the possible permanent placements of Eden and Joann if and when Ann F.’s parental rights with respect to the two children are terminated. With respect to Joann, the testimony established that her foster parents almost certainly will seek to adopt her. Due largely to Eden’s “long history of behavioral problems including aggression, impulsivity and defiance,” however, her adoptive status is less clear. At trial, Eden’s foster mother testified that “we would like to offer Eden a permanent home. I am not going to commit to adoption at this point because we feel there are a lot of issues involved and we would like to talk to the therapeutic community before we make a definite decision. . . . [W]e just want to make sure that we have the best atmosphere for her to be able to grow into a healthy adult.” The foster mother also indicated that, even if she did not seek to adopt Eden, she nevertheless wanted Eden to remain in her home. The foster mother acknowledged, however, that there were times when she thought that she might not be able to keep Eden in her home due to Eden’s behavioral problems. In addition, both Mantell and Crosby indicated that children with problems such as Eden’s are less likely to be adopted than children who do not pose such problems.
Dissenting Opinion
dissenting. I would uphold the Appellate Court’s decision that: (1) the trial court was required to find, by clear and convincing evidence, that the department of children and families (department) had made reasonable efforts to reunify the respondent mother, Ann F., and her children, Eden and Joann, before terminating Ann F.’s parental rights; and (2) the trial court’s determination that such efforts were made was clearly erroneous. I also disagree with part II of the majority opinion, regarding whether Ann F. had rehabilitated herself, and whether the termination of her parental rights with respect to Eden was in Eden’s best interest. Accordingly, I dissent.
The Appellate Court held that, prior to terminating Ann F.’s parental rights, the trial court was required to find, by clear and convincing evidence, that the department had made reasonable efforts to reunify Ann F. with both of her children, Eden and Joann. See In re Eden F., 48 Conn. App. 290, 310-11, 710 A.2d 771 (1998). The trial court had made findings regarding the department’s efforts to reunify the family, but the Appellate Court concluded that the findings were not supported by clear and convincing evidence in the record. Id., 322. The Appellate Court found that the department had failed to implement properly a plan to reunify Ann F. with Eden; id., 317-19; and that the department had made no efforts at all to reunify Ann F. with Joann. Id., 319-20.
The majority reverses the Appellate Court judgment, holding that the petitioner, the commissioner of children and families (commissioner), was not required to prove, by clear and convincing evidence, that the department had made reasonable efforts to reunify Ann F. and her children. The majority holds, instead, that a trial court may terminate parental rights if it determines, by clear and convincing evidence, that the termination is in the child’s best interest, after considering the seven factors delineated in General Statutes (Rev. to 1995) § 17a-112 (d).
I read Santosky to require the department to establish, by at least clear and convincing evidence, the conditions for the termination of parental rights. Under the revision of § 17a-112 (d) (2) in effect at the time of trial, the court was required to consider and make written findings regarding whether the department had made
Be there any question, the legislature, in enacting Public Acts 1995, No. 95-238, § 3,
Finally, I cannot imagine that the citizens of this state, or those of the United States, would countenance the termination of parental rights without a requirement of reasonable efforts on the part of a state agency to attempt to reunify a mother with her daughters. Such a requirement, I believe, is expressed both in the federal and state constitutions and required in a decent society concerned with a mother’s most fundamental right to her children. In this case, Ann F., although mentally impaired, loves and wants her children, and she deserves the protection of due process before her rights to her daughters are severed permanently.
As the Appellate Court noted, the department’s plan for reunification “lacked planning on a number of critical issues . . . .” Id., 317. Ann F. never was afforded a fair chance to succeed with Eden. When the department reunified Ann F. with Eden on February 27, 1995, Eden’s own significant psychological and behavioral needs still were formally being assessed. Id., 296. The department chose not to wait for the results of this assessment, and proceeded with the reunification despite the ongoing evaluation of Eden.
The department did not demonstrate any efforts, whatsoever, to reunify Ann F. with her youngest child, Joann, despite the fact that Joann did not share her sister Eden’s functional problems and would have been easier to handle. Id, 319-20.
Because the department did not properly implement the plan to reunify Ann F. with Eden and did not make any efforts to reunify Ann F. with Joann, I would affirm the judgment of the Appellate Court reversing the judgments of the trial court and order the trial court to restore Ann F.’s parental rights.
II
The majority reaches two additional issues that were not decided by the Appellate Court: First, whether the trial court improperly found that Ann F. had failed to rehabilitate herself and, second, whether the trial court improperly concluded that the termination of Ann F.’s parental rights was in Eden’s best interest.
The trial court found that it had been proven, by clear and convincing evidence, that Ann F. had failed to rehabilitate herself. However, “[t]he statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by
Under this standard, I believe that it was an abuse of discretion for the trial court to find that Ann F. had not rehabilitated herself. The majority stresses that “the trial court reasonably relied on the testimony” of David Mantell, a clinical psychologist, and other expert witnesses in reaching its conclusion. I disagree that such reliance was reasonable.
Moreover, Ann F. had cared for Eden, a problem child, for three weeks without respite and without reasonable assistance. If the department had provided the proper support services to Ann F. during her reunification with Eden, as required by 42 U.S.C. § 671 (a) (15), by placing Eden in school, providing Eden with her regular counseling services and offering respite to Ann F., perhaps, Ann F. would not have been forced to leave Eden as she did that one evening when she went to play bingo.
I agree with the Appellate Court that the department, in seeking to terminate the right to parent, is capable of amassing substantial resources. “[I]n matters of termination of parental rights, the department occupies a
I also believe that the trial court’s conclusion that terminating Ann F.’s parental rights with respect to Eden was in Eden’s best interest was clearly erroneous. Although long-term stability is critical to a child’s future health and development, there was no prospect at the time of trial that Eden would be adopted by her foster parents. Eden’s sister, Joann, however, maybe adopted by her current foster family. Watching her sister be adopted, while she is not, and having her mother’s parental rights terminated, may be a cruel experience for Eden. It is not disputed that Eden, who was seven years old at the time of trial, had formed a bond with Ann F. over the years. Under the circumstances, it is not in Eden’s best interest to terminate her legal relationship with Ann F., and then have Eden watch her sister be adopted while she is not.
This is a tragic and difficult case that will have a long-standing, future effect upon parents with mental disabilities. The courts may have “[little] experience in the area of terminating parental rights of handicapped parents.” R. Sackett, “Terminating Parental Rights of the Handicapped,” 25 Fam. L.Q. 253, 253 (1991). “Handicapped persons do not generally comply with society’s
“Ultimately, the question is whether the parent is inherently unable to fulfill [her] responsibilities or the state has failed to provide adequate services or training to enable [her] to do so.” D. Forman, Every Parent’s Guide to the Law (1998) p. 311. While I respect the majority’s efforts and conclusions as we all try to bring justice to Ann F. and her children, the fact remains that Ann F. tried to be a mother within the confines of her disabilities. She demonstrated that she cared deeply for her children and wanted to parent them as best she could. Forbidding her from ever doing so, without giving her a fair chance to try, violates both Ann F.’s rights and the rights of her children. In a world in which children are abused, neglected and abandoned every day, it is sad that Ann F., a caring mother with a “heart of gold,” who may have the potential to play an important role in her daughters’ lives, has been stripped of her right to be a parent without having a fair chance to prove herself capable. Ann F.’s last act as a mother is fighting to remain in her daughters’ lives. Perhaps, this, in itself, will give a small measure of comfort to them, particularly to Eden.
Accordingly, I respectfully dissent.
The majority cites In re Christine F., 6 Conn. App. 360, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986), in which the Appellate Court upheld the trial court’s termination of parental rights “[n]otwithstanding the positive relationship between the mother and child . . . Id., 369. In that case, the Appellate Court stated that, because “the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, [it would] not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding . . . (Emphasis added; internal quotation marks omitted.) Id., 370. This court is not bound by this Appellate Court case and I would decline to follow it, to the extent that it suggests that each one of the seven factors enumerated in General Statutes (Rev. to 1995) § 17a-112 (d) need not be established by clear and convincing evidence.
One of the criteria for the termination of parental rights enumerated in the statute provides that “the [trial] court shall consider and shall make written findings regarding ... (2) whether the department . . . has made reasonable efforts to reunite the family pursuant to the federal [Adoption Assistance and] Child Welfare Act of 1980, as amended . . . .” General Statutes (Rev. to 1995) § 17a-112 (d) (2).
Public Acts 1995, No. 95-238, § 3, provides in relevant part: “Section 17a-112 of the general statutes is repealed and the following is substituted in lieu thereof . . .
“(b) The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant [a] petition [to terminate parental rights] if it finds THAT THE DEPARTMENT OF CHILDREN AND FAMILIES HAS MADE REASONABLE EFFORTS TO REUNIFY THE CHILD WITH THE PARENT . . . .”
Specifically, the federal act provides in relevant part: “In order for a State to be eligible for payments under this part, it shall have apian approved by the [sjecretary [of health and human services] which—
* * *
". . . provides that, in each case, reasonable efforts will be made . . . prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and ... to make it possible for the child to return to his home . . . .” 42 U.S.C. § 671 (a) (15) (1994).
See Connecticut Bar Association, Juvenile Law Handbook (S. Bysiewicz ed., 1984) pp. 3 — 4 (“[although Connecticut statutes do not explicitly require that reasonable efforts are made to maintain familial integrity, the Department of Health and Human Services has determined that Connecticut is in substantial compliance with Title IV-E of the Social Security Act [42 U.S.C. §§ 670 through 676]”).
In fiscal year 1994-95, the department received more than $51 million from the federal government for foster care and adoption assistance under the federal act. See State of Connecticut, Single Audit Report for the Fiscal Year Ending June 30,1995: Schedule of Federal Financial Assistance, p. E-10.
According to the Policy Manual, “[Reasonable efforts require: services to families/children which would prevent out-of-home placement or allow reunification with the family, and documentation by [the department] of the above services that will enable the Court to malee a judicial determination that reasonable efforts were made.
“The following are examples of some of the intensive family preservation/ reunification services that might be used to prevent out-of-home placement and to facilitate reunification of children in out-of-home care with their families:
“intensive family preservation services
“twenty-four (24) hour emergency caretaker and homemaker services
“day care
“crisis counseling
“individual and family counseling
“emergency shelters
“self-help groups
“services to unmarried parents
“provisions of, or arrangements for, mental health services
“drag and alcohol abuse counseling [and]
“services for foster parents.” Policy Manual, supra, § 46-3-6, p. 1.
Eden eventually was “diagnosed with Reaction Attachment Disorder compounded by symptoms of depression, behavioral disturbance, including oppositionality and defiance.” In re Eden F., supra, 48 Conn. App. 296.
Mantell frequently testifies as a court-appointed expert in termination cases involving the mentally ill, as he did in this case. See, e.g., In re Juvenile Appeal (Anonymous), 181 Conn. 638, 642-43, 436 A.2d 290 (1980) (Mantell recommending termination of psychologically impaired parent’s rights); In re Pascacio R., 52 Conn. App. 106, 111-12 & n.4, 726 A.2d 114(1999) (same); In re Anna B., 50 Conn. App. 298, 305, 307, 717 A.2d 289 (1998) (same); In re Christina V., 38 Conn. App. 214, 217-18, 660 A.2d 863 (1995) (same); cf. In re Michael M., 29 Conn. App. 112, 116-17, 614 A.2d 832 (1992). His objectivity recently was questioned by the Appellate Court, which concluded that the trial court should have struck his testimony because he simultaneously worked both as the court-appointed evaluator and as an evaluator for the state. In re David W., 52 Conn. App. 576, 590, 727 A.2d 264, cert. granted, 249 Conn. 907, 733 A.2d 225 (1999).
Commentators have recognized that psychological evaluations such as Mantell’s often are erroneous. “The psychiatric profession does not possess the necessary tools for the specific task of predicting future behavior with certainty. As one article stated, ‘[t]he studies . . . indicate that psychiatrists often disagree in their judgments and that even where they do agree those judgments — especially predictive judgments — are often wrong.’ [B. Ennis & T. Litwack, “Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,” 62 Cal. L. Rev. 693, 719 (1974).] . . . Reliance on these evaluations as a basis for terminating parental rights introduces an unacceptable element of chance. The severe intrusion on the rights of the parent is not outweighed by a compelling state interest if the state action will be wrong as often as it is right.” (Emphasis in original.) P. Bernstein, “Termination of Parental Rights on the Basis of Mental Disability: A Problem in Policy and Interpretation,” 22 Pac. L.J. 1155, 1176-77 (1991). For these reasons, I believe that it was an abuse of discretion for the trial court to rely on Mantell’s testimony in terminating Ann F.’s parental rights.
Rather, the expert witnesses that favored termination focused on the fact that Ann F. could not care for the children on a full-time basis at that time. Kenneth Crosby, a department social worker, testified to the effect that Ann F. was not capable of taking care of the children on a full-time permanent basis. Richard Sadler, a psychiatrist, testified to the effect that Ann F. could not parent the children independently. No witness stated that Ann F. could never be a successful parent, if provided with the statutorily required assistance and services.
Dissenting Opinion
dissenting. I agree with now Chief Justice McDonald’s well reasoned dissent regarding the termination of the parental rights of the respondent mother, Ann F., with respect to her two daughters, Eden F. and Joann F. Indeed, this is one of those cases where the split decision of the court, carried by a bare majority of a five justice panel, is so outrageous and heartbreaking that Ann F.’s motion to reargue en banc
The critical issue in this three to two decision was whether the state was required to prove, by clear and convincing evidence, that the commissioner of children and youth services, now the commissioner of children and families (commissioner), made reasonable efforts to reunite Ann F. with Eden F. and Joann F., as the Appellate Court unanimously ruled in its well reasoned opinion in In re Eden F., 48 Conn. App. 290, 710 A.2d 771 (1998). I join Chief Justice McDonald in his dissent because, in my view and contrary to the majority, General Statutes (Rev. to 1995) § 17a-112 requires that the commissioner must prove by clear and convincing evidence that termination is in the child’s best interest and that the commissioner made reasonable efforts to reunite the family.
Nevertheless, under the facts of this case, as pointed out by Chief Justice McDonald in his dissent, it is clear that the commissioner failed even to demonstrate by a preponderance of the evidence that he made reasonable efforts to reunite the family. Not only does this violate the constitutional rights of Ann F. and her children, it flies in the face of a 1995 amendment
In affirming by only one vote the trial court’s decision to terminate Ann F.’s parental rights with respect to her two children and by refusing to allow for reargument before an en banc court, this court not only demonstrates a lack of sensitivity, but also ignores the fundamental constitutional right of the family to be free from government interference. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need of procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, supra, 455 U.S. 753-54.
It seems incredible to me that the majority of this court would reverse a unanimous Appellate Court panel and let stand a three to two decision of this court involving such a sensitive matter that implicates fundamental constitutional rights of the family without ordering reargument before an en banc court. It is because of this seeming indifference that I remind the majority of this court of the sanctity of the parent-child relationship and that the state is required, by the constitution and by statute, to prove that every effort was made to support the reunification of a parent and her children before terminating their relationship.
Accordingly, I dissent.
This dissent was filed subsequent to the denial of the motion to reargue.
The state office of protection and advocacy for persons with disabilities advocates for the rights of persons with disabilities. The agency is concerned that, first, the court’s decision negatively impacts upon the rights of disabled parents to raise their children by allowing for the termination of parental rights based upon the parents’ disability status. This is contrary to the legislature’s intent that the state provide services to reunify and strengthen families regardless of parents’ disability. Second, the majority’s decision affects the rights of children with disabilities to remain with their families. The state’s removal of the disabled child in this case, given the familial relationship and the difficulties in arranging adoptions for disabled children, is not in the child’s best interest. Finally, the majority’s decision fails to recognize that parents and children with disabilities constitute a protected class under both federal and state civil rights laws. The agency argues, however, that the Appellate Court’s decision is not narrowly tailored to serve the state’s compelling interest in protecting children. Furthermore, the state’s efforts to reunify the family did not offer equal protection to the disabled parent and child in this case.
Connecticut Legal Services, Inc., which represents indigent parents with disabilities, raises concerns about the rights of disabled parents in the termination of parental rights cases.
Those various Connecticut nonprofit organizations advocate on behalf of persons with mental health disabilities. Their concern is that the majority’s decision interferes with the rights of disabled parents to maintain or reestablish their familial relationships. This, they argue, violates various federal and state civil rights laws that protect the rights of the family and the disabled. They critique the majority’s focus on whether the amendment to General Statutes (Rev. to 1995) § 17a-112; see Public Acts 1995, No. 95-238, § 3; was substantive or procedural. Furthermore, they assert, given the fundamental rights of the respondent mother and her children to maintain their familial relationship, the court should have applied the Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), test to ascertain if there was sufficient procedural due process protection. Under the Mathews test, (1) the right to parent is fundamental, (2) there is a risk of erroneously depriving the parent and children of the familial relationship, and (3) the state’s interest in preserving families is more important than the state’s burden of providing additional due process protections. There is insufficient evidence, these agencies argue, that the state made reasonable efforts to reunify Ann F. and her children before terminating her parental rights. In addition, the state’s treatment of the disabled mother may implicate federal and state civil rights laws. Finally, these agencies point out that the state did not protect the rights of the children to maintain their familial relationships. In particular, the state did not act in the best interest of the disabled child, Eden, given the existing parent-child relationship and the potential difficulties of finding adoptive parents.
Public Acts 1995, No. 95-238, § 3, provides in relevant part: “Section 17a-112 of the general statutes is repealed and the following is substituted in lieu thereof . . .
“(b) The superior court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant such petition [to terminate parental rights] if it finds that theDepartment of Children and Families has made reasonable efforts to reunify the child with the parent . . . .” (Emphasis added.)