Anonymous v. Norton

• Decision Date: 06 May 1975
• Citation: 362 A.2d 532,168 Conn. 421
• Court: Connecticut Supreme Court
• Parties: ANONYMOUS et al. 1 v. Nicholas NORTON, Commissioner of Welfare.

Page 532

362 A.2d 532

168 Conn. 421

ANONYMOUS et al. ¹ v. Nicholas NORTON, Commissioner of Welfare.

Supreme Court of Connecticut.

May 6, 1975.

Certiorari Denied Nov. 3, 1975. See 96 S.Ct. 294.

Michael J. Churgin, New Haven, with whom, on the brief, were Stephen Wizner and Dennis E. Curtis, New Haven, for the appellants (plaintiffs).

Mary P. Ryan, Asst. Atty. Gen., with whom on the brief, was Carl R. Ajello, Atty. Gen., for the appellee (defendant).

Richard H. Kosinski, New Britain, for the dependent children.

BOGDANSKI, Associate Justice.

This appeal concerns an order of the Juvenile Court terminating the parental rights of the plaintiffs with respect to their two infant children. From that order, the plaintiffs appealed to the Superior Court under the provisions of § 17-70 of the General Statutes. After reviewing the record of the proceedings in the Juvenile Court, the Superior Court found the issues for the defendant welfare commissioner and dismissed the appeal. From that judgment, the plaintiffs have appealed to this court, assigning error in the court's conclusions.

We first address ourselves to the defendant's assertion that the record is insufficient for proper review by this court. Citing Martin v. Connecticut Personnel Commissioner, Conn., 355 A.2d 256 the defendant claims that the plaintiffs should have requested a finding in both their appeal to the Superior Court and in their appeal to this court, and that without a finding of facts on which those courts based their conclusions, this court is in no position to do other than affirm the judgment of the Superior Court. A review of appellate procedure set forth in the Practice Book disposes of that argument. Section 404 of the Practice Book has, since 1971, provided that '(t)he hearing on appeal shall be upon the record of the proceedings in the juvenile court. The superior court shall review the certified record of those proceedings and determine whether or not the juvenile court has found facts without evidence or has reached conclusions which cannot be reasonably derived from the facts found or the law applicable thereto or both, or has acted illegally or arbitrarily.' See General Statutes § 17-70(b). The record of the proceedings before the Juvenile Court was, therefore, properly before the Superior Court, and it was solely upon the basis of that record that the appeal was decided. We, in turn, review the action of the Superior Court and may properly consult its memorandum of decision to ascertain the conclusions on which it based its judgment; A.P. & W. Holding Corporation v. Planning & Zoning Board, Conn., 355 A.2d 91; and in testing those conclusions we review the facts in the record submitted to us pursuant to Practice Book § 645 as it may be supplemented by any relevant portions of the Juvenile Court record which are printed in the appendices to the briefs. Practice Book §§ 714-716.

In this appeal, the parents have relied on the extensive appendix to the brief filed on behalf of their two children. That appendix, combined with the record, is sufficient for our review of the assigned errors. The defendant has also filed an appendix of even greater length, composed of over fifty pages of verbatim testimony of the proceedings in the Juvenile Court. That testimony quoted in the defendant's appendix, however, has no sequence or continuity, with excerpts beginning and ending in the middle of sentences. It is sufficient to point out that the resulting confusion greatly complicates our review of this appeal, and that Practice Book § 720 requires that evidence be stated in appendices in narrative form whenever possible without unnecessary or repetitious printing of testimony.

The plaintiffs have assigned error in the Superior Court's conclusion that the order of the Juvenile Court to terminate parental rights was reasonably derived from the legally admissible evidence before it. Specifically, the plaintiffs complain that the Juvenile Court order was based (1) on voluminous medical records concerning the mental health of the parents which records were improperly admitted into evidence, and (2) on a medical report furnished by a court-appointed psychiatrist, which report was not admitted into evidence.

The defendant in his brief and the Superior Court in its memorandum of decision rely primarily on the premise that a Juvenile Court proceeding is essentially civil in nature and that certain informalities in procedure are constitutionally permissible. In re Appeal of Bailey, 158 Conn. 439, 445, 262 A.2d 177; Cinque v. Boyd, 99 Conn. 70, 84, 121 A. 678. While that proposition cannot be challenged as a general statement of the law, it cannot justify procedural irregularities in so serious a matter as the termination of parental rights. The termination of parental rights is defined as 'the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . ..' General Statutes § 17-32a(e) (Rev. to 1972). ² Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551. See In re Appeal of Kindis, 162 Conn. 239, 240, 294 A.2d 316; Cinque v. Boyd, supra, 121 A. 678. 'It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring).' Stanley v. Illinois,supra. Therefore, laxity in procedural safeguards cannot be swept away by mere reference to the so-called 'informalities' of Juvenile Court procedure.

The defendant filed petitions for termination of the plaintiffs' parental rights in their two children on May 24, 1973, alleging that the 'parents have been or are unable by reason of a continuing physical or mental condition to offer the care necessary for the child(ren) and there are reasonable grounds to believe that such condition will exist for an indeterminate period of time.' See General Statutes § 17-43a(c) (Rev. to 1972). ³ The parents received notice of the petitions and were represented by counsel at all subsequent proceedings.

In October of 1973, hearings were held on the defendant's petitions. During those hearings the defendant offered into evidence certain hospital records concerning the parents' prior hospitalization for mental illnesses. The parents objected to the admission of those records on the ground that the psychiatrist who prepared those reports was not present for examination in violation of Rule 17-7 of the Juvenile Court, now § 1119(6) of the Practice Book, which states that '(p)roperly validated reports of physicians and clinical tests, both psychological and physical, may be admitted by the court if, in its judgment, the adjudication does not pivot around the contents of the report in question. Where such a report appears likely to be determinative of the decision, its authors should be present for proper examination.' The Juvenile Court overruled the parents' objection and admitted the records as 'hospital records under the regular hospital records rule.' See General Statutes § 52-180.

As already noted, the petition alleged that the parents were unable to provide necessary care for their children because of a continuing mental condition. Thus, the mental health of the parents was a pivotal issue and the hospital reports in question might arguably have been determinative of the decision. Moreover, the parties and the court did not consider the applicability of the statutory privilege of confidentiality of communications and records of a patient's mental condition. General Statutes §§ 52-146d, 52-146e. Since the parents made timely objection to their admission, they cannot be deemed either to have consented to the disclosure of those records or to have waived their privilege. See State v. Vennard, 159 Conn. 385, 406, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625. We therefore conclude that the records in question were not admissible as business entries under § 52-180 of the General Statutes, and that the Juvenile Court erred in receiving them in evidence.

The further claim is made that the Juvenile Court based its decision on a medical report which was not admitted into evidence. The appendices to the briefs disclose that, prior to the hearing on October 15, 1973, the Juvenile Court ordered that the parents be examined by a psychiatrist. After examining the parents the court-appointed psychiatrist prepared a medical report concerning both parents. That report, however, was never introduced into evidence. In its memorandum of decision, the Juvenile Court made reference to that report and quoted directly from it. Since the report was never made a part of the record, it was error for the Juvenile Court to use it in any way to support its conclusions.

It is thus clear that the order of termination could not properly have been based on either the past hospital records of the parents' mental illnesses or on the report of the court-appointed psychiatrist. If those documents were the source of the underlying facts on which the Juvenile Court based its conclusions, the errors would be harmful. We...