Alexander V., In re

• Decision Date: 18 August 1992
• Docket Number: No. 14395,14395
• Citation: 613 A.2d 780,223 Conn. 557
• Court: Connecticut Supreme Court
• Parties: In re ALEXANDER V. *

Page 780

613 A.2d 780

223 Conn. 557

In re ALEXANDER V. ^*

No. 14395.

Supreme Court of Connecticut.

Argued May 6,

Aug. 18, 1992.

Borden, J., concurred and filed opinion. Diane Polan, with whom, on the brief, were John R. Williams and Sue L. Wise, New Haven, for appellant (respondent).

Susan T. Pearlman, Asst. Atty. Gen., with whom were Jane S. Scholl, Associate Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Aaron Bayer, Deputy Atty. Gen., for appellee (petitioner).

Howard Lawrence, New Haven, for minor child.

Stephen Wizner, New Haven, filed a brief for Connecticut Civil Liberties Union Foundation et al. as amici curiae.

Before CALLAHAN, GLASS, BORDEN, BERDON and SANTANIELLO, JJ. CALLAHAN, Associate Justice.

This is an appeal by the respondent, Deborah V., from a judgment of the trial court terminating her parental rights with respect to her son, Alexander V. The respondent appealed to the Appellate Court, which affirmed the trial court's judgment. In re Alexander V., 25 Conn.App. 741, 596 A.2d 934 (1991). This court granted the respondent's petition for certification from the decision of the Appellate Court limited to the following questions: "(1) Under what circumstances does the due process clause of the United States constitution require a determination of parental competency ¹ as a prerequisite to a proceeding for the termination of parental rights? Were there sufficient indicia of incompetence in this case to have required the trial court to inquire into competency, sua sponte? (2) Was the failure of trial counsel to raise the issue of competency at trial a denial of effective legal representation that prejudiced the outcome of the termination proceedings?" In re Alexander V., 220 Conn. 927, 598 A.2d 366 (1991). We affirm the judgment of the Appellate Court.

We reiterate the relevant facts of the case, as recited by the Appellate Court in its opinion. "Alexander V. was born to the respondent on July 14, 1985. Shortly thereafter, the department of children and youth services (DCYS) received a referral from Yale-New Haven Hospital concerning the respondent's ability to care for her child. Since that time Alexander has been in and out of foster care and has been under the supervision of DCYS. Since 1988, he has resided in the same foster home. DCYS filed a petition to terminate the respondent's parental rights, and, after a three day trial, the court rendered judgment terminating the respondent's parental rights." In re Alexander V., supra, 25 Conn.App. at 742, 596 A.2d 934.

I

The first question certified is divided into two parts. It asks, first, under what circumstances the due process clause of the federal constitution requires a trial court to order a competency hearing for a parent whose parental rights the state seeks to terminate. Second, it asks whether the trial court, sua sponte, should have ordered a hearing concerning the respondent's competency in this case.

A

The right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Lehrer v. Davis, 214 Conn. 232, 236, 571 A.2d 691 (1990). Accordingly, it has been held that the due process clause of the fourteenth amendment to the United States constitution ² applies when a state seeks to terminate the relationship between parent and child. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981).

In determining what procedural safeguards are required by the federal due process clause when the state seeks to terminate the parent-child relationship, the United States Supreme Court has utilized the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see, e.g., Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982). To determine whether due process requires a competency hearing in this context, Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. at 903 directs us to consider and weigh three factors: "[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."

We first consider the importance of the private interest that is jeopardized by the termination proceeding. "The rights to conceive and to raise one's children have been deemed essential, basic civil rights of man, and rights far more precious ... than property rights." (Internal quotation marks omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983). The right of parents to the " ' "companionship, care, custody and management of his or her children" ' " is fundamental. Id.; Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). We have also recognized that the parent's interest includes " 'the most essential and basic aspect of familial privacy--the right of the family to remain together without the coercive interference of the awesome power of the state.' Duchesne v. Sugarman, [566 F.2d 817, 825 (2d Cir.1977) ]." In re Juvenile Appeal (83-CD), supra.

Unquestionably, these important rights are severely threatened by the state's initiation of termination proceedings. Such proceedings may result not only in the modification or limitation of parental rights, but may irrevocably sever the relationship between parent and child. In re Juvenile Appeal (Anonymous) v. Commissioner of Children & Youth Services, 177 Conn. 648, 671, 420 A.2d 875 (1979). This deprivation is unique and complete. Lassiter v. Department of Social Services, supra. Consequently, under the first prong of the Mathews v. Eldridge test, the private interest of a parent in a termination proceeding is considerable. ³

The second factor set forth in Mathews v. Eldridge, supra, requires that we examine the extent to which current procedures create a risk of an erroneous deprivation of parental rights and also that we weigh the likelihood that a competency hearing would reduce that risk. ⁴ Currently, there is no statute or court rule requiring a trial court in a termination proceeding to hold a hearing to determine a parent's competency. ⁵ In the termination setting, only General Statutes § 45a-708(a) ⁶ addresses the competency issue. That provision requires that a guardian ad litem be appointed for a parent who "appears" to be a minor or incompetent. The plain language of § 45a-708(a) does not provide for an evidentiary hearing, nor does it require any particular measures beyond the appointment of a guardian to protect the rights of an incompetent person facing the termination of parental rights.

If a parent were in fact competent during a termination proceeding, there would obviously be no risk of an erroneous deprivation of parental rights whether or not a guardian was appointed pursuant to § 45a- 708(a), and the addition of a competency hearing would not affect the accuracy of the outcome. If a parent were incompetent, however, the absence of a competency hearing could create a considerable risk of an erroneous termination of parental rights.

By definition, a mentally incompetent person is one who is unable to understand the nature of the termination proceeding and unable to assist in the presentation of his or her case. See General Statutes § 54-56d(a); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Simply appointing a guardian ad litem for a parent in such a condition might well fail to protect the parent sufficiently against an unreliable adjudication terminating parental rights. A parent unable to understand the proceedings and unable to assist his or her attorney would likely be similarly unable to assist a guardian ad litem, and could be at a severe disadvantage in a termination proceeding because of his or her incapacity. Without the assistance of a competent parent, a guardian ad litem might be without sufficient information to rebut evidence offered by the state, which, although superficially damaging, could be refuted by a competent parent or a witness whose availability would be made known by a competent parent. Similarly, the ability of the guardian ad litem and mentally incompetent parent to offer affirmative proof of the existence or prospect of an ongoing parent-child relationship might be significantly compromised. In addition, the mentally incompetent parent might be unable to assist his or her attorney or guardian in establishing tactical and substantive goals at the termination proceeding. In sum, there is a cognizable risk that a parent unable to assist his or her attorney or to understand the proceedings might suffer an erroneous termination of parental rights regardless of whether a guardian ad litem had been appointed pursuant to § 45a-708(a).

We must next assess the probable value of a competency hearing in reducing that risk. A competency hearing is intended to protect the accuracy of the adjudication by ensuring that the party involved "is able to provide his counsel with the data necessary or relevant to the structuring of" the party's case. State v. Pastet, 169 Conn. 13, 26, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975). A competency hearing would afford the parties an opportunity to present the trial court with additional evidence, perhaps from expert witnesses, concerning the parent's mental state, the parent's ability to assist an attorney or guardian, and the likelihood that the parent could be restored to competency, if the court was persuaded that the...