35 Conn. App. 421 | Conn. App. Ct. | 1994
The defendant appeals from the decision of the trial court granting the plaintiffs motion to modify the pendente lite order of custody of the parties’ minor child. The defendant claims that the trial court improperly conducted a hearing on the plaintiffs motion to modify custody (1) without the minor child’s court-appointed counsel present, and (2) without providing the defendant reasonable notice in violation of her due process rights.
The following facts are relevant to this appeal. This action was commenced, by writ and complaint filed on March 26, 1992, to settle a custody dispute concerning the parties’ minor son. On April 2, 1992, the trial court entered pendente lite orders on a stipulation of the parties providing for joint legal custody and shared care. The defendant would provide care on weekdays except Wednesdays from 8:30 a.m. to 5:30 p.m., and on Wednesdays until 2:30 p.m., and the plaintiff would provide care from 5:30 p.m. to 8:30 a.m., and on Wednesdays from 2:30 p.m. The parties were to arrange agreeable weekend schedules.
On August 27,1993, the plaintiff filed an application requesting, inter alia, temporary custody and modification of the visitation schedule. The plaintiffs motion for modification alleged that the mother displayed explosive, irrational behavior, and subjected her minor child to emotional abuse. The plaintiffs counsel, accompanied by the court-appointed counsel representing the minor child, appeared before the court, and the court declined to order the requested relief because the
The court, aware that the attorney for the minor child was not available,
I
The defendant first claims that the trial court improperly conducted the hearing to modify custody and visitation without counsel for the minor child present. The defendant advances the argument that the trial court prevented counsel for the minor child from fulfilling her statutory and ethical obligations to her client by refusing to continue the hearing to a date when coun
As a threshold matter, we note that the dispositive issue is not whether the trial court should have proceeded with the modification hearing without the child’s counsel present, but, rather, whether a parent, in the course of a contested custody-visitation proceeding in which counsel for the minor child has been appointed, can assert her child’s right to have counsel present at the hearing. We hold that she cannot.
The defendant asserts two arguments addressing her standing to appeal
A
STATUTORY CLAIM
The defendant offers no case law authority for her first proposition. She contends that the common law of this state is that a minor child is non sui juris, represented only by a next friend, typically a parent. She further asserts that as a parent, the welfare of the child is her duty which is not abdicated because the court, in its discretion, has appointed counsel to represent the child’s best interests.
“The issue of standing implicates the court’s subject matter jurisdiction. Middletown v. Hartford Electric
We know of no statute that gives the defendant mother the legal right to demand that the child’s court-appointed counsel be present at a custody-visitation hearing. General Statutes § 46b-54 gives the court the discretion to appoint counsel to represent the child; it does not confer any authority or legal interest on a parent.
Our case law is also clear that a person cannot gain standing by asserting the due process rights possessed by another individual. “It is axiomatic that due process rights are personal, and cannot be asserted vicariously. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); see Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 175-77, 363 A.2d 22 (1975).” Shelby Mutual Ins. Co. v. Della Ghelfa,
B
CONSTITUTIONAL CLAIM
We must next determine whether a parent, who certainly has legal duties with respect to her child, can dictate how the best interests of her child should be legally represented in a court proceeding. We conclude that she cannot. “Our law ‘recognizes that parents have significant constitutionally protected rights to the companionship, care, custody and management of their children. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).’ Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); see also Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 20 L. Ed. 2d 195, reh. denied, 391 U.S. 971, 88 S. Ct. 2029, 20 L. Ed. 2d 887 (1968); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923).” (Emphasis added.) Lehrer v. Davis, 214 Conn. 232, 236-37, 571 A.2d 691 (1990). “The family is not, however, beyond regulation
Counsel for the minor child made a judgment with regard to whether modification of custody and the visitation schedule was necessary and made her position known to the trial court. Certainly, counsel for the child is in a more appropriate position to exercise sound legal judgment than is the defendant. We conclude that the mother has no standing on this claimed issue to appeal the judgment of the trial court. We therefore dismiss the defendant’s appeal as to this claim.
II
The defendant’s second claim is that the trial court conducted the hearing on the motion to modify her visitation rights without giving her reasonable notice in violation of her due process rights guaranteed by the state and federal constitutions.
The following facts are necessary to resolve this issue. On Friday, August 27, 1993, the plaintiff and counsel for the minor child presented an application to the trial
The hearing that followed lasted three days and included testimony from, among others, the court-appointed psychologist, the former nanny for the minor child, the defendant, the defendant’s psychiatrist, and the defendant’s psychological tester. At the conclusion of the proceeding, the trial court found that “the mother’s behavior is definitely psychologically dangerous and probably physically dangerous” and harmful to her child. The court issued temporary orders modifying the visitation schedule, limiting the time of the child’s exposure to the negative environment presented by the mother.
“General Statutes § 46b-56 (a) provides that ‘[i]n any controversy before the superior court as to the custody or care of minor children ... the court may at any
The trial court was faced with allegations of harm to a minor child. Cognizant of the defendant’s due process rights, it ordered a hearing for the following Monday, giving the defendant the weekend to prepare. It continued the case until Tuesday, and held a hearing that lasted three days. All three of the witnesses, whom the defendant claimed she would not have time to secure for testifying, did testify at the visitation hearing. In light of the circumstances, the trial court satisfied the requirements of due process while adjudicating the best interests of the child.
The appeal is dismissed in part; the judgment is affirmed.
In this opinion the other judges concurred.
The defendant moved to continue the hearing to allow the child’s counsel to participate. The motion was denied and the court proceeded with the hearing and adjudication of the motion, cognizant that the counsel for the minor child was not present. The court stated that it had before it a letter from the counsel for child stating her position, and that it would conduct a rehearing to present any new concerns upon the counsel’s return from vacation if requested by counsel for the minor child.
Although the defendant’s claims on appeal address only the visitation orders, those orders are so related to the custody orders as to render them immediately appealable. See Madigan v. Madigan, 224 Conn. 749, 751 n.4, 620 A.2d 1276 (1993).
Although the statutory basis for this proceeding is not clear from the record, we consider this action to be brought under General Statutes § 46b-61, which pertains to orders as to the custody, care, education, visitation and support of any minor child of parents who live separately or, as in this case, parents who were never married. Moll v. Gianetti, 8 Conn. App. 50, 51, 510 A.2d 1009 (1986); Grynkewich v. McGinley, 3 Conn. App. 541, 543 n.2, 490 A.2d 534 (1985). Under § 46b-61, the provisions of General Statutes §§ 46b-54, 46b-56, 46b-57 and 46b-66 apply to matters involving such minor children.
Because the defendant fails to analyze her claim under the state constitution, we limit our analysis to the guarantees of the federal constitution. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).