Baby Girl B., In re

• Citation: 224 Conn. 263,618 A.2d 1
• Decision Date: 08 December 1992
• Docket Number: Nos. 14591,14592,s. 14591
• Court: Supreme Court of Connecticut
• Parties: In re BABY GIRL B. *

Page 1

618 A.2d 1

224 Conn. 263

In re BABY GIRL B. ^*

Nos. 14591, 14592.

Supreme Court of Connecticut.

Argued Oct. 1, 1992.

Decided Dec. 8, 1992.

William M. Bloss, New Haven, with whom was Barbara J. Ruhe, Hartford, for appellants in the first case (proposed intervenors).

Richard Blumenthal, Atty. Gen., with whom were Linda Pearce Prestley and Susan T. Pearlman, Asst. Attys. Gen., for appellant in the second case (petitioner).

Angelica Anaya-Allen, with whom were Shelley White, New Haven, and, on the brief, Linda Oechsle, Hamden, for the appellee in both cases (respondent mother).

Sara R. Martin, New Haven, with whom was Marion Fay, Hamden, for the minor child.

Robert Whitman, Hartford, and Kelly A. Peters filed a brief as amici curiae.

JoNel Newman, Paul Chill, Hartford, Tanina Rostain, Stamford, Nancy Erickson, Laurie Woods, New York City, and Alice Bussiere, San Francisco, CA, filed a brief for the Connecticut Civil Liberties Union et al. as amici curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

PETERS, Chief Justice.

These appeals require us to find the proper accommodation between the statutory policy favoring finality in the termination of parental rights and the statutory policy favoring the opening of judgments in the interests of justice. The petitioner, the department of children and youth services (DCYS), filed coterminous petitions for a determination of neglect with respect to a two day old child pursuant to General Statutes § 46b-129 ¹ and for termination of parental rights on the ground of abandonment pursuant to General Statutes § 17a-112(b)(1), ² both premised on the fact that, within hours of giving birth, the child's mother had left the hospital without disclosing her identity or her whereabouts. The trial court, after appointing counsel for the child and giving notice by publication of the pending petitions, held a hearing and rendered a judgment granting the petitions. More than four months later, after the child had been placed in a preadoptive home, the mother moved to open the termination judgment. Despite the objection of DCYS, the trial court granted the mother's motion. The preadoptive parents moved to intervene in the proceedings regarding the motion to open, but their motion was denied. Thereafter, DCYS filed an amended termination petition including additional grounds for termination of the mother's rights to her child. The trial court denied the amended petition to terminate the mother's parental rights.

There are two appeals before us. The first appeal is that of the preadoptive parents, who challenge the trial court's denial of their motion to intervene in the proceeding to determine whether the judgment of termination should be opened. The second appeal is that of DCYS, which challenges the trial court's authority to open the judgment of termination, the trial court's exercise of its discretion to open the judgment of termination, and the trial court's denial of the amended petition for termination. Both appeals were filed in the Appellate Court, and we transferred them to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

I

The relevant facts are as follows. At the time that she gave birth to Baby Girl B., the respondent mother was an eighteen year old high school student living with her parents in Milford. She consistently denied that she had been aware of her pregnancy. On June 26, 1991, she was taken to the hospital by ambulance after fainting on a public street in West Haven where she had been visiting with a girlfriend. Distressed by the revelation that she was in active labor, and frightened about how her parents might react, she concealed her identity from hospital personnel. Following delivery, having briefly looked in on her child, the mother left the hospital on the evening of the child's birth. The child was in perfect health. Upon leaving the hospital, the mother returned home without telling anyone what had occurred. Anonymously, she called the hospital twice to inquire about the child's health. The second time she was told to contact DCYS. Her efforts anonymously to elicit further information from DCYS were unsuccessful.

Upon discovering that the mother had left, the hospital staff notified DCYS concerning the child's situation. Two days after the child's birth, DCYS obtained an order of temporary custody and filed coterminous petitions relating to the child, one alleging neglect, pursuant to § 46b-129, and the other alleging that the mother had abandoned the child and that her parental rights should be terminated, pursuant to § 17a-112(b)(1). DCYS arranged a placement for the child in a foster home.

Theresa Polverari, a DCYS intake worker, directed that the child be left at the hospital for an additional two days in the hope that the mother would return. Polverari also attempted to locate the mother by placing a call to the West Haven police asking them to trace any information they might have had about the mother. Polverari did not, however, investigate information contained in an affidavit of a hospital social work intern, Lisa Holme. Holme had identified by name, address and telephone number the person who had called 911 to obtain emergency service for the mother, and had included the 911 administrative telephone number that would have enabled a caller to hear the 911 tape of the conversation between the caller and the police. Polverari did not call either of these telephone numbers.

A hearing on the coterminous petitions for neglect and termination was scheduled for July 25, 1991. The mother received no actual notice of the filing of either of these petitions, although she was deemed to have received constructive notice thereof by publication in the New Haven Register on July 6, 1991, pursuant to General Statutes § 45a-716(c). ³ When the mother did not appear for the scheduled hearing, the trial court postponed it until July 31, 1991.

On July 31, 1991, the trial court held a hearing on the coterminous petitions. In the mother's absence, the court did not consider whether to appoint counsel on her behalf, although court-appointed counsel for the child participated in the proceedings. Polverari described the efforts that she had made to locate the mother. Patricia LeMay, a DCYS treatment worker, informed the court that the child had been placed in foster care and was eligible for adoption. At the conclusion of the hearing on July 31, 1991, the trial court granted the coterminous petitions for neglect and termination of parental rights, in which counsel for the child had acquiesced. The trial court found that it was in the child's best interest to waive the one year waiting period for termination of parental rights. See General Statutes § 17a-112(c). ⁴ The trial court then appointed DCYS as the child's statutory parent and directed it to report to the court regarding the child's status within ninety days, and thereafter at six month intervals, "until adoption is accomplished." No objection was taken by any party to the court's retention of jurisdiction for this purpose. Notice of the court's decision was published in the New Haven Register on August 7, 1991.

On October 10, 1991, upon expiration of the appeal period following the judgment terminating the mother's parental rights, DCYS removed the child from her foster home and placed her with a couple who were on a list of approved prospective parents awaiting children for adoption. The preadoptive parents named and christened the child and took over every aspect of her care at their own expense. Relying on representations from DCYS that the child was not a "legal risk," they expected that the child would be removed from their custody only for cause arising out of neglect or abuse on their part.

One month later, less than four months after the termination judgment, the mother made contact with DCYS. Having told her parents on November 11, 1991, about the child's birth, the mother telephoned DCYS the next day and spoke to DCYS treatment worker LeMay. On November 14, 1991, LeMay visited the mother's home and met there with the mother and the child's maternal grandmother. LeMay's purpose in making the visit was, at least in part, to obtain genetic information to facilitate the child's adoption. ⁵

In the interview at the mother's home, LeMay told the mother that her parental rights had been definitively terminated because the period to appeal from the judgment of termination had expired. LeMay explained that the child had been placed in an excellent adoptive home and that only the child, when she reached the age of eighteen, would have the right to make further contact in order to seek information about her genetic parents. LeMay had discussed with her DCYS supervisors what advice she should give to the mother. In conveying the view that the mother had no further legal recourse, LeMay's remarks were not intended to dissuade the mother from pursuing other legal rights that she might have had, because LeMay was unaware of their existence. Her advice was, nonetheless, misleading because the mother was not alerted to the urgency of taking action to seek to open the judgment terminating her parental rights. Upon hearing LeMay's advice, the maternal grandmother expressed immediate doubt about its validity and indicated that the mother would seek legal counsel. The maternal grandmother then ended the interview.

LeMay reported her interview with the mother to her supervisors but undertook no other immediate action or investigation. She did not inform counsel for the child that the mother had contacted DCYS. She did not disclose her conversation with the mother to the preadoptive parents for seven weeks, until January 2, 1992, because she did not want to "ruin their holidays."

The mother sought private legal counsel the day following her interview with LeMay. Because she could not afford...