Bruce R., In re

Decision Date16 June 1994
Docket NumberNo. 12662,12662
Citation640 A.2d 643,34 Conn.App. 176
CourtConnecticut Court of Appeals
PartiesIn re BRUCE R. et al. *

Sean Orion Lebas, for appellant (respondent).

Edward R. Giacci, for appellee (petitioner).

Mary B. Androski, for minor children.

Before DUPONT, C.J., and HEIMAN and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The respondent mother appeals from the order of the trial court terminating the parental rights of the petitioner father. On appeal, the respondent claims that the trial court improperly (1) utilized the termination procedure provided for in General Statutes § 45a-715 et seq. to terminate the parental rights of the petitioner, (2) found that termination of the petitioner's parental rights was in the best interests of the children, (3) refused to order the petitioner to file a financial affidavit pursuant to Practice Book § 463, and (4) sustained the petitioner's objection to the respondent's counterclaim.

The following facts are not in dispute. During the petitioner's marriage to the respondent, they had two children issue of the marriage, a son born June 18, 1980, and a daughter, born December 2, 1987. On March 25, 1988, their marriage was dissolved by the Superior Court. In the decree of dissolution, the respondent was granted custody of the two minor children and the petitioner was granted liberal rights of visitation. The decree further ordered the petitioner to pay $75 per week for the support of each minor child, maintain medical and life insurance for their benefit, and to pay one-half of all their unreimbursed medical expenses. After the dissolution, problems arose between the petitioner and respondent that affected the petitioner's rights of visitation.

On May 14, 1991, the petitioner filed petitions in the Court of Probate for the district of Derby seeking to terminate his parental rights with respect to both children. Both petitions alleged the following reasons for seeking such termination of parental rights: "Since the date of dissolution, the children have been used as pawns. I have been denied visitation when requested. Allegations have been raised that I am not a fit father which led the Superior Court to enter supervised visitation. Since that order, additional problems with visitation have arisen which are now affecting the well-being of the children. In mid-winter 1990/1991, Respondent, mother of the minor child, suggested that in the best interest of the children, that I consent to termination of my parental rights. After careful consideration and thought and after reviewing the inability of Respondent and me to discuss any difficulties that we have, including important matters in the child's life, it is clear that I agree with her contention that my parental rights be terminated. The child's well-being is affected adversely by the difficulties between Respondent and me which I do not believe can be cured through counseling. It is further clear that the ultimate best interest of the children will be served by the termination of my parental rights to allow Respondent to live her life without any concern for me or of me and thereby ease the pressure on the child emotionally." Along with the petitions seeking to terminate parental rights, the petitioner executed and filed the consent form required by General Statutes § 45a-715(d). 1 The Court of Probate appointed an attorney for the children and ordered the department of children and youth services (DCYS) 2 to make an investigation and subsequent written report regarding the proposed termination. DCYS contracted with a private agency, Community Children and Family Services, to conduct the investigation and that private agency thereafter submitted a written report to the Court of Probate. The report was based on the information gathered from interviews with the petitioner, the respondent, and both children. The report recommended that the petitions for termination of parental rights be denied on the ground that "it does not seem to bear that inability to get along with his ex-wife relieves [the petitioner] from responsibility for providing for his children."

On motion of the respondent, the petitions for termination of parental rights were ordered transferred from the Court of Probate to the Superior Court, Juvenile Matters, pursuant to General Statutes § 45a-715(g). On July 7, 1992, the attorney for the children requested that the court issue an order to obtain updated evaluations of the petitioner, the respondent, and the minor children. By agreement of all counsel, Ralph S. Welsh was appointed to conduct these evaluations. The evaluations were conducted on December 8 and 29, 1992, and written reports were submitted to the trial court. The trial court conducted a hearing regarding the termination of the petitioner's parental rights on May 21 and 24, 1993. The petitioner, the respondent, Welsh, and the son's therapist, Annette Bonomo, testified at the hearing. The trial court granted the petitions to terminate the petitioner's parental rights on May 24, 1993. This appeal followed.

I

The respondent first claims that the trial court improperly utilized the termination procedure provided in General Statutes § 45a-715 et seq. to terminate the parental rights of the petitioner. The thrust of the respondent's argument is that the statute was "not conceived" to allow a parent to seek and receive a termination of his or her own parental rights "absent pending adoption [or] state custodial placement." We do not agree. 3

First, it is clear from the language of General Statutes § 45a-715 that a parent may be the one to initiate a petition seeking termination of his or her own parental rights. Section 45a-715(a) provides that "[a]ny of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child ... (1) [e]ither or both parents...." Second, "the termination of parental rights is part of the adoption process [and] it is clear that adoption cannot proceed unless the parents' rights are terminated in the first instance. The converse is not true. The parents' rights can be terminated without an ensuing adoption.... Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available ... it is clear that there are circumstances wherein termination of a parent's rights is not followed by adoption." (Citations omitted.) In re Theresa S., 196 Conn. 18, 30-31, 491 A.2d 355 (1985).

We conclude that under the present statutory scheme a parent may petition for the termination of his or her own parental rights and that a petition for the termination of parental rights is not dependent on a pending adoption or state custodial placement.

II

The respondent next claims that the trial court improperly found that termination of the petitioner's parental rights was in the best interests of the children. We agree. General Statutes § 45a-717(f) provides in pertinent part that "[a]t the adjourned hearing ... the court may approve the petition terminating the parental rights ... if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child...."

General Statutes § 45a-717(e)(1) provides: "The court may, and in any contested case shall, request the commissioner of children and youth services or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to determine whether the proposed termination of parental rights will be for the welfare of the child, including the physical mental, social and financial condition of the natural parents, and any other factors which the commissioner or such agency finds relevant to determine whether the proposed termination will be for the welfare of the child." (Emphasis added.) Clearly this was a contested case, in that the mother of the children sought to prevent the father from terminating his parental rights. 4 While it is true that the petitioner consented to the termination of his parental rights, the respondent filed an answer denying the allegations of the petitions and requested that the petitions be denied. A full hearing was held in the trial court at which the respondent vigorously opposed the granting of the petitions. Because this was a contested case, the Court of Probate properly requested DCYS to make an investigation and issue a written report.

While § 45a-717(h) is specific as to what the court must consider in determining whether to terminate the parental rights of a nonconsenting parent, 5 it does not explicitly set forth such considerations in the case of a consenting parent. We are guided, however, by the portion of the statute that establishes the areas that must be investigated and reported to the court in a contested case. Section 45a-717(e)(1) provides, inter alia, that the report "shall contain such facts as may be relevant to determine whether the proposed termination of parental rights will be for the welfare of the child, including the physical, mental, social and financial condition of the natural parents...." (Emphasis added.)

The language of § 45a-717(e)(1) is not clear and may be subject to different interpretations. One interpretation is that the determination of whether the financial condition of the parents is relevant is left to the discretion of DCYS or its representative when making the investigation and subsequent report. Another interpretation is that the statute mandates...

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