In re Joseph W., Nos. 18951

• Decision Date: 28 June 2012
• Docket Number: 18952.,Nos. 18951
• Court: Connecticut Supreme Court
• Parties: In re JOSEPH W., Jr., et al.

305 Conn. 633

46 A.3d 59

In re JOSEPH W., Jr., et al.^*

Nos. 18951, 18952.

Supreme Court of Connecticut.

Argued May 14, 2012.

Decided June 28, 2012.^**

David B. Rozwaski, for the appellant in Docket No. SC 18951 (respondent mother).

David J. Reich, for the appellant in Docket No. SC 18952 (respondent father).

Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee in both cases (petitioner).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, HARPER and VERTEFEUILLE, Js.

ROGERS, C.J.

The primary issue in this appeal is whether the trial court applied the proper standard of proof when, pursuant to General Statutes § 46b–129, it rendered adjudications of neglect under the doctrine of predictive neglect. The respondents, Karin H. (mother) and Joseph W., Sr. (father), are the parents of Joseph W., Jr., and Daniel W. (children). The petitioner, the commissioner of children and families (commissioner), filed neglect petitions with respect to both children. The trial court, Wilson, J., found that the children were neglected and committed them to the custody of the department of children and families (department). Ultimately, the trial court, Olear, J., rendered judgments terminating the respondents' parental rights with respect to both children. The respondents appealed from the judgments to the Appellate Court, the majority of which reversed the judgments of the trial court and remanded the cases for further proceedings. In re Joseph W., 121 Conn.App. 605, 621–22, 997 A.2d 512 (2010). We then granted the commissioner's petition for certification to appeal to this court. See In re Joseph W., 297 Conn. 928, 998 A.2d 1195 (2010). After we affirmed the judgment of the Appellate Court, the cases were remanded to the trial court for a new neglect proceeding. In re Joseph W., 301 Conn. 245, 268, 21 A.3d 723 (2011). On remand, the trial court, Bentivegna, J.,again found that both children were neglected under the doctrine of predictive neglect and committed them to the custody of the commissioner. The respondents then filed these separate appeals ¹ from the adjudications of neglect. We conclude that the trial court applied an improper standard of proof and, therefore, we reverse the judgments and remand the case to the trial court for new neglect proceedings.

The trial court, Bentivegna, J., found the following facts. The department has been involved with the mother since 2002, when her oldest child, Kristina H. (Kristina), was born and subsequently removed from the mother's custody by the department.² When Kristina was born, the mother exhibited strange behavior at the hospital. Ultimately, it was determined that her mental problems impaired her ability to safely parent her infant. From 2002 to 2005, the department worked with the mother in an attempt to address the child protection concerns but, in 2007, the trial court Bear, J., rendered judgment terminating the mother's parental rights with respect to Kristina.

Meanwhile, in 2005, the mother became pregnant by Joseph W., Sr. The respondents did not inform the department of the pregnancy. In order to avoid the removal of the child from their care, the respondents left the state of Connecticut, and Joseph W., Jr. (Joseph), was born in a hospital in Lackawanna County, Pennsylvania on July 19, 2005. Hospital personnel notified the local child protection agency that the mother was exhibiting bizarre behavior and that both respondents had failed to provide accurate information regarding their housing situation and financial status. In addition, the father appeared to lack insight as to the mother's mental problems and their implications for Joseph's safety and well-being. The Pennsylvania authorities notified the department of the situation and placed a hold on Joseph to prevent him from being discharged to the care of the respondents. They also obtained a court order stating that the department would assume custody of the child after obtaining a court order allowing it to do so.

On July 21, 2005, the commissioner filed an ex parte motion for temporary custody of Joseph, which the trial court, Goldstein, J., granted. At the same time, the commissioner filed a neglect petition alleging that the respondents were denying Joseph proper care. The neglect petition alleged that the “[m]other has a significant and long-standing mental health condition that impairs her ability to safely parent her child. Despite the provision of psychiatric services, [the] mother has failed to benefit from said services. [The] [f]ather has no insight or acceptance of [the mother's] psychiatric impairment and the implications they have for this child. By virtue of the child's age, he requires a competent and responsible caregiver.” The trial court, Taylor, J., held a contested hearing on the temporary custody order on August 5, 2005. After the hearing, the court sustained the temporary custody order and ordered specific steps for the respondents to regain custody. Joseph was placed in a foster home. Over the course of the following year, the department made referrals for services and evaluations for the respondents to address the child protection concerns.

The respondents' second child, Daniel W. (Daniel), was born on July 20, 2006. On July 24, 2006, the commissioner filed an ex parte motion for an order of temporary custody, which the trial court, Trombley, J., granted. At the same time, the commissioner filed a neglect petition alleging that the respondents were denying Daniel proper care and that he was being permitted to live under conditions that were injurious to his well-being. The petition also alleged that the “[m]other has unresolved mental health issues that prohibit her from adequately caring for the child. Despite the provision of psychiatric services, [the] mother has failed to avail herself of or benefit from said services. [The] [f]ather fails to recognize the mother's mental health issues and how they negatively impact her ability to care for the child. [The] [f]ather has not demonstrated an ability to care for the child independent of the mother. By virtue of the child's age, he requires a competent and responsible caregiver.” The trial court, Bear, J., scheduled a contested hearing on the order of temporary custody, at which it sustained the order by agreement of the parties. The court also ordered specific steps for the respondents to regain custody. Daniel was placed in the same foster home as Joseph.

The first trial on the neglect petitions took place on August 2, 2007. The mother pleaded nolo contendere. The father, although present, did not enter a plea. Accordingly, the parties presented no evidence at the hearing. The trial court, Wilson, J., rendered adjudications of neglect for both children and committed the children to the custody of the commissioner.

Thereafter, the commissioner filed petitions to terminate the respondents' parental rights with respect to both children. After a trial, the trial court, Olear, J., granted the petitions. The respondents then appealed from the judgments terminating their parental rights as to each child. Ultimately, in affirming the Appellate Court, this court concluded that the judgments of the trial court should be reversed because the father improperly had been prevented from entering a plea at the neglect proceeding and, therefore, the adjudications of neglect, on which the judgments terminating the respondents' parental rights had been predicated, had to be opened. In re Joseph W., supra, 301 Conn. at 267, 21 A.3d 723.

On remand, the trial court, Bentivegna, J., conducted a second trial on the neglect petitions for both children. Shortly before trial, the respondents sent a letter to the trial court in which they stated that they believed that the department had violated their rights under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., and requested that the department provide an ADA coordinator to oversee the case. They also stated that they questioned “the [j]udicial [b]ranch's enforcement of the ADA law, as well.” On the first day of trial, the trial court responded to this request by stating that “the ADA does not provide a defense or create a special obligation in a child protection proceeding,” and “child protection proceedings are not services, programs or activities within the meaning of ... the ADA.” Accordingly, the court denied the respondents' request and proceeded with trial.

At trial, the commissioner presented as exhibits the transcripts of the trial before Judge Olear on the petitions for termination of parental rights. The commissioner also presented a number of exhibits that previously had been exhibits at the termination proceeding. The new testimonypresented by the commissioner at the trial on the neglect petitions related solely to the dispositional phase of the proceeding, not to whether the children were neglected at the time that the neglect petitions were filed.

After trial, the trial court found by a fair preponderance of the evidence that both children were neglected under the doctrine of predictive neglect. See In re Brianna C., 98 Conn.App. 797, 802, 912 A.2d 505 (2006) (“[a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect”). With respect to Joseph, the trial court found that, as of the date that the neglect petition had been filed, the mother had a long-standing history of mental health problems and narcolepsy; ³ she had failed repeatedly to comply with treatment plans for her mental and physical health problems; and, although the department had asked her repeatedly if she was pregnant, she consistently had denied it. The court also found that both respondents had left the state prior to Joseph's birth “without having any real plan for housing and employment.” In addition, the “[f]ather lacked insight into [the] mot...