In re Jonathan M., (SC 16330)

• Court: Supreme Court of Connecticut
• Writing for the Court: KATZ, J.
• Citation: 255 Conn. 208,764 A.2d 739
• Parties: IN RE JONATHAN M.
• Decision Date: 16 January 2001
• Docket Number: (SC 16330)

255 Conn. 208
764 A.2d 739

IN RE JONATHAN M.¹

(SC 16330)

Supreme Court of Connecticut.

Argued September 27, 2000.

Officially released January 16, 2001.

McDonald, C. J., and Norcott, Katz, Palmer and Sullivan, JS.

255 Conn. 209

Raymond J. Rigat, for the appellant (petitioner father)

Eliot D. Prescott, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (respondent department of children and families).

Jeanne Milstein and Christy Scott filed a brief for the state office of the child advocate as amicus curiae.

Opinion

KATZ, J.

The principal issue in this appeal is whether a petition for habeas corpus is the appropriate procedural vehicle through which a party may challenge a judgment terminating his or her parental rights based upon a claim of ineffective assistance of counsel.² We conclude that a habeas petition may not be so used to attack collaterally the termination judgment.

Neither party in this case disputes the underlying facts, which were set forth in the memorandum of decision terminating the petitioner's parental rights. The

255 Conn. 210

petitioner, John M., and Stacie M. (mother)³ are the biological parents of Jonathan M., who was born on May 19, 1997. On October 13, 1997, following a verbal domestic dispute resulting from the petitioner's refusal to hand Jonathan over to the mother after her extended absence from their home, the petitioner filed a police incident report in which he related that he had not felt comfortable leaving Jonathan in the mother's care because of her recent drug use. No action was taken on the incident report at that time, but the department of children and families (department) was notified. On October 21, 1997, following a meeting with an investigations worker from the department, the petitioner signed a service agreement with the department. The agreement directed the petitioner to pursue custody of Jonathan through the Probate Court, to abstain from using drugs himself, to provide adequate supervision to Jonathan, to apply for financial assistance for Jonathan, to obtain parenting support from the YWCA and to cooperate with the department. The petitioner failed to take steps consistent with any of these directives

Thereafter, on October 29, 1997, approximately two weeks after the initial incident report, the petitioner refused to leave Jonathan in the mother's care while he went to work because he thought that she had been using drugs. Jonathan's mother, who had endured a long history of drug abuse, had been on a cocaine "binge" and had been absent from the home for the preceding two weeks. With Jonathan between them, the petitioner and the mother fought verbally and physically. The police arrived and arrested the mother, and Jonathan was placed in foster care.

255 Conn. 211

On October 31, 1997, the department filed coterminous petitions against the mother and the petitioner for neglect and termination of their parental rights under General Statutes (Rev. to 1997) § 17a-112 and Practice Book § 33-12.⁴ On that same day, the department secured an order of temporary custody regarding Jonathan

In its petition for neglect, the department alleged that Jonathan had been denied the care and attention that he required physically, educationally and morally, and that he was living under conditions and circumstances injurious to his well-being. See General Statutes (Rev. to 1997) § 46b-120 (8) (B) and (C).⁵ The department's termination petition alleged that Jonathan had been "denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being...." General Statutes (Rev. to 1997) § 17a-112 (c) (3) (C).⁶

255 Conn. 212

On October 8 and 9, 1998, the court held a trial on the neglect and termination petitions. Both the mother and the petitioner obtained court-appointed attorneys and "vigorously contested" the department's allegations. The court made factual findings regarding each of Jonathan's parents. The court found that the petitioner, then sixty years old, had met Jonathan's mother, then twenty-four years old, at an Alcoholics Anonymous meeting in 1994. According to the trial court, the two "quickly became intimate," and began living together. The court found that the petitioner had had a long history of heroin abuse and, although he had experienced intermittent periods of sobriety, he had been maintained on methadone and had used heroin as recently as three weeks before the trial. The court also noted the petitioner's criminal record

The court credited the opinion of the court-appointed psychologist, David Mantell, who reported that, given the long-term pattern of the petitioner's addiction, he "remained seriously concerned about [the petitioner's]

255 Conn. 213

ability to maintain his sobriety." Mantell concluded that the petitioner's age and his substance abuse "significantly limit[ed] his parental capacity and raise[d] strong concerns about his ability to minimally meet his child's needs on a regular basis." At trial, the petitioner admitted that he was not ready to parent Jonathan and that he needed to address his own problems with addiction.

On October 23, 1998, after making extensive findings with respect to Jonathan's biological parents, the court determined, by a preponderance of the evidence, that they both had neglected their son. The court concluded that, because of the drug use by both the mother and the petitioner, Jonathan had been denied proper care and attention and had been permitted to live under conditions and circumstances injurious to his well-being.

The court also determined by clear and convincing evidence that the ongoing drug use had served to deny Jonathan, by reason of acts of parental commission and omission, the care, guidance and control necessary for his well-being. The court terminated the parental rights of both the mother and the petitioner, concluding that "neither [the petitioner] nor [the mother] is able to care for their son in the foreseeable future.... Jonathan needs the stability and consistency that are provided in [the foster] home."

Following the termination judgment, the petitioner's court-appointed trial counsel filed a motion to withdraw from representing the petitioner on the ground that there were no issues worthy of appeal. The court granted the motion to withdraw and, pursuant to Practice Book § 35-4 (b), appointed a second attorney to review the record and determine if the issues therein warranted an appeal.⁷ On November 30, 1998, the second

255 Conn. 214

attorney advised the court via letter that, because the record did not present any viable claims for appeal, he would not serve as appointed counsel for such an appeal.

Thereafter, the petitioner filed an appeal pro se. On January 22, 1999, the Appellate Court notified the petitioner that he was required to file a preliminary statement of issues, a designation of the contents of the record, a docketing statement, and a certificate regarding a transcript order, if any. The court ordered the appeal to be dismissed unless the petitioner filed the necessary documents by February 2, 1999. On February 9, 1999, the Appellate Court, noting that none of the documents listed in the January 22 notice had been filed, dismissed the petitioner's appeal.

On April 6, 1999, the petitioner, who, in the interim, had secured pro bono counsel to handle his appeal, filed a motion to open the dismissal in the Appellate Court. The Appellate Court denied that motion on May 5, 1999. On July 14, 1999, this court denied a petition for certification to appeal from the Appellate Court's denial. In re Jonathan M., 250 Conn. 903, 734 A.2d 981 (1999).⁸

On August 6, 1999, the petitioner filed the present action, seeking a writ of habeas corpus. The petitioner

255 Conn. 215

alleged that both his initial court-appointed trial counsel and the second attorney, appointed to review the record to determine if any issues were worthy of appeal, had been ineffective. In addition, the petitioner claimed that the trial court, in its decision to terminate his parental rights, had denied him due process and equal protection under the federal and Connecticut constitutions. The petitioner sought as relief an order setting aside the judgment of termination and awarding him custody of Jonathan. Alternatively, the petitioner sought either an order for a new trial, or restoration of the right to appeal the termination judgment.

On August 10, 1999, the department moved to dismiss the petition for habeas relief. The trial court granted the motion to dismiss on January 4, 2000. Thereafter, the petitioner appealed from the judgment of dismissal to the Appellate Court, and on June 21, 2000, pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2,⁹ we granted the department's motion to transfer the appeal to this court.

255 Conn. 216

On appeal, the petitioner claims that the trial court improperly concluded that he lacked standing to petition for a writ of habeas corpus. The petitioner asserts further that he had a right, grounded in the federal and state constitutions, to the effective assistance of counsel at the termination proceeding. The petitioner maintains that the trial court improperly determined that, as a matter of procedure and public policy, the writ of habeas corpus is not a vehicle through which he may vindicate that right. According to the petitioner, due process requires that he be permitted to file the writ to attack collaterally the termination judgment.

The department argues that the trial court correctly determined that the petitioner lacked standing to file the habeas petition. It contends that the petitioner's right to effective assistance of counsel at the termination proceeding is derived solely from statute¹⁰ and is not of constitutional magnitude. The...