In re Joseph W., (AC 30476) (Conn. App. 6/8/2010), (AC 30476).

CourtAppellate Court of Connecticut
Writing for the CourtBishop
Decision Date08 June 2010
Docket Number(AC 30476).,(AC 30477).

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(AC 30476).
(AC 30477).
Appellate Court of Connecticut.
Argued January 12, 2010.
Officially released June 8, 2010.

Appeal from Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, Olear, J.

David B. Rozwaski, for the appellant (respondent mother in AC 30476).

David J. Reich, for the appellant (respondent father AC 30477).

Jane R. Rosenberg, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner in both cases).

Geraldine M. Menn, for the minor children in both cases.

Bishop, Harper and Pellegrino, Js.

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The respondent mother, Karin H., and the respondent father, Joseph W., appeal from the judgments of the trial court terminating their parental rights as to their two children, Joseph, Jr., and Daniel.1

Because we conclude that the terminations of the rights of both parents were premised on a prior adjudication of neglect that was improperly rendered, we reverse the judgments of the trial court.

The following factual and procedural history is relevant to the respondents' appeals. Joseph, Jr., was born on July 18, 2005, in Scranton, Pennsylvania. The respondents feared that the department of children and families (department) would take Joseph, Jr., from them because the mother's first child had been committed to the custody of the petitioner, the commissioner of children and families. Consequently, on the advice of legal counsel, the respondents traveled to Pennsylvania in an attempt to evade the department. The parents were not successful in their attempt to elude the department. On July 21, 2005, three days after his birth, while still in the hospital, Joseph, Jr., was taken into emergency protective custody by the commonwealth of Pennsylvania, to be transferred to the custody of the petitioner upon the issuance of an order of temporary custody. Also on July 21, 2005, the petitioner took Joseph, Jr., into custody pursuant to an order of temporary custody and filed a neglect petition, on the basis of the doctrine of predictive neglect, premised on allegations regarding the mother's mental health issues2 and the father's alleged inability to acknowledge the mother's parenting limitations."3 Joseph, Jr., has remained in the custody of the petitioner throughout the ensuing proceedings leading, ultimately, to this appeal.

Daniel was born on July 20, 2006, in Waterbury. On the same day, while Daniel was still in the hospital, the petitioner took him into custody pursuant to an emergency ninety-six hour administrative hold. See General Statutes § 17a-101g. On July 24, 2006, the petitioner filed a neglect petition and sought an order of temporary custody as to Daniel. The custody order was granted on the same day.4 The allegations of neglect regarding Daniel were essentially the same as of those made in the neglect petition regarding Joseph, Jr. As in the case of Joseph, Jr., Daniel has remained in the custody of the petitioner throughout the proceedings leading to this appeal.

On August 2, 2007, at the hearing on the neglect petitions regarding both children and at which the father was present, the mother entered a plea of nolo contendere as to the allegations of neglect. After canvassing the mother, the court, Wilson, J., adjudicated the children neglected pursuant to General Statutes (Rev. to 2007) § 46b-120 (9) (C) and committed the

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children to the custody of the petitioner. Neither respondent appealed from the neglect judgments.

On November 29, 2007, however, the father filed a motion to open the adjudications of neglect and commitment of the children, alleging that he had attempted to object to the mother's plea on August 2, 2007, but that the court would not allow him to speak.5 On May 16, 2008, the court, Bear, J., held an evidentiary hearing on the father's motion to open the adjudications of neglect during which the father testified as to what happened at the earlier neglect proceeding, and the transcript of that hearing was introduced into evidence. On May 30, 2008, the court issued an order denying the father's motion to open the judgments of neglect but indicating that if the father filed a pleading seeking a trial on the issue of whether the children were neglected, then the petitioner would have the burden of proving, at the termination trial,6 that the children were neglected despite the prior adjudications of neglect.7

On June 16, 2008, the petitioner filed a motion asking the court to reconsider its May 30, 2008 order requiring that she prove by a fair preponderance of the evidence that the children were neglected at the trial on the petitions to terminate the respondents' parental rights. On June 24, 2008, pursuant to the court's May 30, 2008 order, the father filed a motion seeking a neglect trial, a motion to clarify and an objection to the petitioner's motion for reconsideration. The court, Bear, J., held a hearing on these motions on July 9, 2008. On that date, the court granted the father's motion for a neglect trial but denied the father's other requested relief. At the July 9, 2008 hearing, the court, Bear, J., also found that the father had not stood silent at the August 2, 2007, neglect proceeding and that he did not waive his right to be heard on the neglect matter. The court commented that "[i]f [the father] turns out to have been custodial, then only half of what needed to be done was done with the mother's nolo." The court also denied the petitioner's motion8 but clarified its May 30, 2008 ruling, explaining that the issue to be determined was whether the father "was a noncustodial or custodial parent on the date of the filing of each of the [neglect] petitions, since the father's hearing rights in light of the mother's nolo contendere plea would be different depending on his custodial or noncustodial status."

Thereafter, on August 20, 2008, the father filed a motion to bifurcate the neglect and termination of parental rights proceedings, to which the petitioner objected. On August 21, 2008, the petitioner filed another motion asking the court to reconsider its May 30, 2008 order requiring the petitioner to prove at the termination of parental rights hearing that the children had been neglected.9 By way of a memorandum of decision dated August 25, 2008, the court, Bear, J., denied

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the father's motion for bifurcation, sustained the petitioner's objection to the motion for bifurcation and denied the petitioner's motion for reconsideration.10

On September 4, 2008, the court, Olear, J., commenced the termination hearing, beginning with the issue of whether the father was a custodial parent as of the date that the neglect petitions were filed. The father testified that he was present at the hospital when both Joseph, Jr., and Daniel were born, that he signed acknowledgements of paternity for both children while they were in the hospital and that he was there with them for the duration of their stay in the hospital until they were taken into the custody of the petitioner within a few days of their respective births. The father also testified that it was his understanding that he and the mother would raise Joseph, Jr., and Daniel together. After the father testified, the petitioner called Kathleen Dayner, a social worker with the department, to testify. Dayner testified that both parents were considered custodial before the children were taken into the petitioner's custody "because [the parents] were both together."11 Following the hearing, the court concluded: "[T]he father today has not produced sufficient evidence to meet his burden of having established that he was a custodial parent as contemplated by the Practice Book and by law, and, furthermore, by Judge Bear's order. So, at this point, I'm not finding the father to have been custodial for purposes of the neglect adjudication being required to be remade."

Thereafter, the court granted a motion filed by the petitioner to correct its petition for termination of the respondents' parental rights and to proceed on the basis of the prior adjudications of neglect. Following an evidentiary hearing, the court, by memorandum of decision dated October 1, 2008, terminated the respondents' parental rights as to both Joseph Jr., and Daniel.12 These appeals followed.

On appeal, the father claims that the termination of his parental rights was improper because it was premised on a prior finding of neglect in a proceeding in which he was deprived of his right to participate. He claims further that he was entitled to a contested hearing on the neglect petition because he was a custodial parent at the time that the neglect petition was filed. The father also claims that the court improperly found that the department made reasonable efforts to reunify him with his children and that he was unable or unwilling to benefit from services. See General Statutes § 17a-112 (j) (3) (B) (i). The mother claims that the court improperly found that she had failed to achieve a sufficient degree of personal rehabilitation; see General Statutes § 17a-112 (j) (3) (B) (i) and (E); and that it would be in the best interests of the children to terminate her parental rights. Pursuant to the procedural posture of this case, the petitioner did not have to prove at the

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termination hearing that the children were neglected but only that the children had been found to be neglected in a prior proceeding.13 Because the neglect adjudications relate to the children, and not to either of the parents; see In re T.K., 105 Conn. App. 502, 505-506, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008);14 if the father is successful in his claim regarding the deprivation of his rights in the neglect proceeding, the finding of neglect, despite the mother's nolo plea, cannot stand. In other words, a court could not, after an evidentiary hearing in which the father has...

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