Migdalia M., In re

• Decision Date: 11 February 1986
• Docket Number: 2827,Nos. 2826,s. 2826
• Citation: 504 A.2d 533,6 Conn.App. 194
• Parties: In re MIGDALIA M. *
• Court: Connecticut Court of Appeals

Page 533

504 A.2d 533

6 Conn.App. 194

In re MIGDALIA M. ^*

Nos. 2826, 2827.

Appellate Court of Connecticut.

Argued Oct. 2, 1985.

Decided Feb. 11, 1986.

John D. Thomas, Middlefield, for appellant (father of minor child).

Cornelius J. Ivers, Meriden, with whom, on brief, was Patrice Noah, Bridgeport, for appellant (mother of minor child).

John H. Doermann, Asst. Atty. Gen., with whom, on brief, were Joseph I. Lieberman, Atty. Gen., and Robert W. Garvey, Asst. Atty. Gen., for appellee (department of children and youth services).

Laurie Balmuth, Hartford, with whom, on brief, was Richard Gee, Yalesville, for minor child.

Before DUPONT, C.J., and HULL and BORDEN, JJ.

DUPONT, Chief Judge.

This case involves a petition to terminate the parental rights of parents of a child with severe medical problems, brought by the commissioner of the department of children and youth services (hereinafter DCYS). The trial court granted the petition and the parents have separately appealed. ¹

The issue on appeal is whether DCYS proved by clear and convincing evidence that one or more of the statutory grounds for the termination of parental rights, as provided in General Statutes (Rev. to 1981) § 17-43a(a), as amended by Public Acts 1982, No. 82-202, existed. ² The grounds for the petition were the same as to each parent. DCYS alleged that the parents (1) abandoned the child in the sense that they have failed to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare, or (2) failed to achieve such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child's life, or (3) have 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 trial court found that all three grounds for termination had been proven as to the mother, and that two of the grounds had been proven as to the father. The father's appeal only concerns the ground that he failed to achieve personal rehabilitation within the terms of the statute. ³ The mother's appeal concerns all three grounds alleged by DCYS and found by the court.

The claims of error of the parents are basically the same, although the facts as to each differ. Both parents claim that the trial court erred in failing to make written findings as required by General Statutes (Rev. to 1983) § 17-43a(b), as amended by Public Acts 1983, No. 83-387, ⁴ and in considering the suitability and circumstances of prospective adoptive parents. Other issues raised by the parents merge into the main issue of whether any one of the statutory grounds of General Statutes (Rev. to 1981) § 17-43a(a), as amended by Public Acts 1982, No. 82-202, were proven by clear and convincing evidence.

The minor child, through her counsel, claims that the concept of rehabilitation as delineated in General Statutes (Rev. to 1981) § 17-43a(a)(2), as amended by Public Acts 1982, No. 82-202, is an inappropriate consideration in this case, and that it was error to terminate parental rights on the basis of that concept. ⁵ Her other claims of error are similar to those made by one or both of the parents.

The child of the parties was placed in foster care in July of 1981, when her parents agreed to a ninety day voluntary placement with DCYS. In March of 1982, the parents agreed to a finding that she was neglected and she was committed to the custody of DCYS. In June, 1982, the parents were instructed as to the expectations of the court. The petition to terminate parental rights was filed on December 22, 1982, and the hearing on that petition was held on October 17, 1983.

The dates are relevant because of the differing views of the parties as to the applicable statutory standards which governed the trial of this case. The father and counsel for the child contend that the criterion of the best interest of the child is not involved in the termination of the parents' rights, whereas DCYS and the mother contend and admit, respectively, that the best interest of the child is involved.

The grounds for termination of parental rights, as enumerated in General Statutes (Rev. to 1981) § 17-43a(a), as amended by Public Acts 1982, No. 82-202, and as alleged in the petition, were amended between the date of the petition and the date of the trial. See Public Acts 1983, No. 83-478. The amendment was effective October 1, 1983. If the amendment were to be the statutory test for the termination of parental rights, the best interest of the child would be a significant factor in a termination of parental rights case. See 26 H.R.Proc., Pt. 17, 1983 Sess., pp. 6111, 6114, remarks of Representative Alfred J. Onorato. The amendment added another statutory ingredient by providing that the Superior Court, after hearing and notice, may grant a petition if it finds that termination is in the best interest of the child. If the best interest of the child is a factor to be proven by clear and convincing evidence, in addition to the statutory grounds listed, then evidence as to the suitability and availability of adoptive parents would be relevant in a termination proceeding, and also relevant to a determination of whether there is a statutory ongoing parent-child relationship, as interpreted by Connecticut Supreme Court cases. ⁶ See 26 H.R.Proc., Pt. 24, 1983 Sess., pp. 8673-74, remarks of Representative Antonina B. Parker.

Another substantive change made by the amendment involves the statutory standard for the failure to achieve personal rehabilitation. Prior to the amendment, DCYS had to prove that a parent failed to achieve "any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child's life." (Emphasis added.) General Statutes (Rev. to 1981) § 17-43a(a)(2). After the amendment, DCYS had to prove that a parent "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, they could assume a responsible position in the life of the child." (Emphasis added.) Public Acts 1983, No. 83-478. Putting aside the statutory differences between "any such" and "such" or "reasonably encourage" as opposed to "encourage," the amendment makes two major changes. "At some future date" is quite another test than "within a reasonable time." See 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). The amendment also adds that the age and needs of the child must be considered, factors not previously listed in the statute.

The initial question to be determined on appeal, before the trial court's conclusions may be tested by examining the reliable evidence to support those conclusions, is whether the hearing should have been governed by the law existing as of the date of the petition, or by the law as it existed as of the date of the trial.

General Statutes § 1-1(u) provides the general rule as to the applicability of amended or repealed statutes. "The passage or repeal of an act shall not affect any action then pending." Id. Case law follows the words of the statute and makes it clear that statutes affecting the substantive rights of parties do not affect pending actions unless a contrary legislative intent is expressed. Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979); New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974); Little v. Ives, 158 Conn. 452, 455, 262 A.2d 174 (1969).

Although the issue of whether parental rights should have been terminated is to be decided by a trial court on the basis of conditions existing at the time of trial; In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); there is no legislative or decisional mandate allowing a trial court to decide that issue on the basis of statutes existing at the time of trial, but not in effect when the termination petition was filed. The mandates are to the contrary. Parents have a constitutionally protected right to raise and care for their children and that protection cannot be diluted by the use of statutory standards enacted subsequent to a petition to terminate that right, absent a counter legislative directive. See In re Laura F., 33 Cal.3d 826, 662 P.2d 922, 191 Cal.Rptr. 464 (1983); Matter of Myers, 417 N.E.2d 926 (Ind.App.1981). The trial court in this case, in its memorandum of decision, reiterated the grounds for termination as they existed as of the date of the petition, concluded that the termination of parental rights was in the best interest of the child, and ordered DCYS to implement the planned adoption of the child by her foster parents, "if and whenever said step is practicable."

Since the legislature did not except pending actions when it amended the statute, the appellate review of this case is limited to a review of whether the trial court's conclusion to terminate parental rights of both parents can stand based on General Statutes (Rev. to 1981) § 17-43a(a), as amended by Public Acts 1982, No. 82-202, and as it existed as of the date of the petition.

Many of the relevant facts involved in this case are not in dispute. The minor child has serious medical problems, consisting of renal failure, seizure disorder, left ventricular disorder and hypertension. She was born in 1975 and resided with her parents until she was approximately four years old when it was learned that she suffers from a chronic kidney disease requiring a lifelong vigorous regimen of medication, diet control and physical care. ⁷ After a...