In re Joseph W.

• Decision Date: 11 March 2013
• Docket Number: Nos. L15–CP05–008039–A,L15–CP06–008191–A.,s. L15–CP05–008039–A
• Citation: 79 A.3d 155
• Court: Connecticut Superior Court
• Parties: In re JOSEPH W., JR., et al.

79 A.3d 155

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

Nos. L15–CP05–008039–A

L15–CP06–008191–A.

Superior Court of Connecticut, Child Protection Session, at Middletown.

March 11, 2013.

Tammy Nguyen–O'Dowd, assistant attorney general, for the petitioner.

Sam Christodlous, for the respondent father.

Brian Chizinski, for the respondent mother.

Geraldine Menn, for the minor children.

KELLER, J.

This is a trial on matters ordered consolidated by the court, Epstein, J., on September 14, 2012, concerning Joseph W., Jr. (Joseph), born July 18, 2005, and Daniel W., born July 20, 2006, to respondent mother, Karin H. and respondent father, Joseph W., Sr.

On July 21, 2005, the petitioner, the Commissioner of the Department of Children and Families (department), filed a petition alleging that the minor child, Joseph W., is neglected. On July 24, 2006, a second petition was filed alleging that the minor child, Daniel W., is neglected.

On December 10, 2007, pursuant to General Statutes § 17a–112 et seq., the petitioner filed petitions to terminate the parental rights of Karin H. and Joseph W. as to their children, Joseph and Daniel W.

Under General Statutes § 17a–112 (l ), a petition for termination of parental rights may be tried at the same time as a neglect petition. That section provides as follows: "Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b–129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child. Notice of the hearing on such petitions shall be given in accordance with sections 45a–716 and 45a–717. The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b–129, grant the petition for termination of parental rights as provided in section 45a–717." (Emphasis added.)

Practice Book § 35a–3, captioned "Coterminous Petitions," provides as follows: "When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child or youth is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination of parental rights is in the best interests of the child or youth by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination of parental rights is not in the best interests of the child or youth, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition."

On July 3, 2012, mother filed a motion to resume visitation with the children. On August 3, 2012, father filed a motion to resume visitation and a motion to vacate the orders of temporary custody regarding Joseph and Daniel. In addition to consolidating the neglect and termination petitions for trial, Judge Epstein also ordered the hearings on these three motions consolidated with the trial on the neglect and termination petitions.

Both the mother and the father were duly notified of the filing of the petitions. The court is aware of no other proceeding pending in any other court regarding the custody of these two children. Neither parent claims Native American affiliation and the requirements of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., are not applicable.

The court has jurisdiction.

Trial was held over six days, December 3, 4, 5, 6, 10, and 11, 2012. These trial dates were selected well ahead of time, after counsel for the mother requested a continuance of trial dates previously set for October 2012. Mother did not attend the trial after the first day, December 3, 2012, and did not indicate to the court or her attorney any reason for her absence. Neither she nor her attorney requested a continuance. The memorandum of hearing for an in-court proceeding on September 14, 2012, indicates mother was present in court when the trial dates were established. The court determined to proceed in mother's absence. Her attorney remained present and participated throughout the trial.¹

The court has fully considered the criteria set forth in the relevant statutes, as well as the credible and relevant evidence, applicable case law, demeanor and credibility of the witnesses and arguments of the parties in reaching the decisions reflected and the orders issued in this memorandum. After due consideration, the court adjudicates the children neglected, terminates the parents' parental rights in Joseph and Daniel W., denies the parents' motions for visitation and denies the father's motion to vacate the orders of temporary custody.

IPROCEDURAL HISTORY

On July 21, 2005, the petitioner sought and obtained an ex parte order of temporary custody (OTC) from the court regarding Joseph when he was three days old. A neglect petition was simultaneously filed, alleging predictive neglect, which requires proof that it was more likely than not that, if Joseph had remained in the care of either mother or father, or both parents, he would have been "denied proper care and attention physically, educationally, emotionally or morally." See In re Joseph W., 305 Conn. 633, 648–49, 46 A.3d 59 (2012).

On August 5, 2005, after a contested hearing, the OTC regarding Joseph was sustained by the court, Taylor, J. The court found that Joseph was in immediate physical danger from his surroundings and that immediate removal from his surroundings was necessary to insure his safety. See General Statutes § 46b–129 (b). Pursuant to General Statutes § 46b–129 (c)(6), the court ordered preliminary specific steps prepared for each of the respondent parents, which were signed by each parent on August 17, 2005. (Exhibits 9 and 10.)

On July 24, 2006, the petitioner sought and obtained an ex parte OTC from the court regarding Daniel W. when he was four days old. A neglect petition was simultaneously filed, alleging predictive neglect on the basis that Daniel would be denied proper care and attention physically, educationally, emotionally or morally and would be permitted to live under conditions, associations and circumstances injurious to his well-being.

On August 11, 2006, the OTC for Daniel was scheduled for a contested hearing. Prior to the commencement of the hearing, the parents agreed to sustain the OTC, which was based on the finding that Daniel was in immediate physical danger from his surroundings and that immediate removal from his surroundings was necessary to insure his safety. On that same date, the court, Bear, J., ordered preliminary specific steps for each of the parents, which they both signed. (Exhibits 11 and 12.)

On August 2, 2007, pursuant to an agreement, mother entered a written plea of nolo contendere in both neglect petitions on the basis of predictive neglect. The respondent father stood silent. The court, Wilson J., canvassed mother as to her nolo plea and adjudicated both children neglected on the conditions injurious ground.² Judge Wilson also committed both children to the care and custody of the petitioner.

On November 28, 2007, father filed a motion to open the neglect adjudication and disposition in both cases, claiming that he was entitled to enter a plea and contest the neglect petitions, even if he was not a custodial parent at the time of the filing of the neglect petitions. In his request to open the judgments and seek a neglect trial, father "expressly stated that ‘[t]his is not a case where the father is simply contesting whether or not he himself committed any overt act which gave rise to any form of neglect. [The] [f]ather has made it abundantly clear that he contests whether the children can in any way be deemed neglected....’ " (Emphasis in original.) In re Joseph W., 301 Conn. 245, 262, 21 A.3d 723 (2011). "At the August 2, 2007 neglect hearing, the father had stated that ‘[w]e never abused nor neglected our children. Our children were taken away at birth on a prediction.’ The father did not make a claim that, although the mother had neglected the children, he had not." Id., at n. 17.

On December 10, 2007, the petitioner filed termination of parental rights petitions as to both children, alleging failure to rehabilitate pursuant to General Statutes § 17a–112 (j)(3)(B)(ii) as grounds for termination of the parental rights of both respondents. In addition the petitioner alleged the ground of failure to rehabilitate pursuant to General Statutes § 17a–112 (J)(3)(E) as to mother.³

On October 1, 2008, the court, Olear, J., terminated the respondents' parental rights to both children based on § 17a–112 (j)(3)(B)(i) for both mother and father and § 17a–112 (j)(3)(E) for mother.⁴ The respondents appealed.

On June 28, 2011, the Supreme Court affirmed the Appellate Court's decision to reverse the trial court's judgment terminating the respondents' parental rights. See In re Joseph W., supra, 301 Conn. at 245, 21 A.3d 723. The case was reversed and remanded for a new trial on both the neglect and termination petitions. The court concluded that the prior neglect adjudications had to be opened because the trial court, having found that the father did not stand silent at the neglect hearing or waive his right to enter a plea, should have unconditionally granted the father's motion to open the adjudications of neglect and allowed father to contest those adjudications and consequent dispositions, regardless of whether he was a custodial parent. Because the trial court, Olear, J., had expressly relied on the prior 2007 neglect adjudications in rendering its termination judgments, and because those neglect adjudications had to be opened, the Supreme Court determined...