In re W.

Decision Date28 June 2011
Docket NumberNo. 18660.,18660.
PartiesIn re JOSEPH W., JR., et al.*
CourtConnecticut Supreme Court

OPINION TEXT STARTS HERE

Jane R. Rosenberg, assistant attorney general, with whom were Tammy Nguyen–O'Dowd, assistant attorney general, and, on the brief, George Jepsen, attorney general, Richard Blumenthal, former attorney general, Susan T. Pearlman and Benjamin Zivyon, assistant attorneys general, for the appellant (petitioner).David J. Reich, for the appellee (respondent father).David B. Rozwaski, for the appellee (respondent mother).ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH and LAVINE, Js.ROGERS, C.J.

The primary issue in this certified appeal is whether a noncustodial parent is entitled to contest a neglect petition. We answer that question in the affirmative.

The respondent mother, Karin H., and the respondent father, Joseph W., 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. At the hearing on the petitions, the mother pleaded nolo contendere and the father did not enter a plea. After the trial court found that the children were neglected and committed them to the custody of the commissioner, the father filed a motion to open the adjudication of neglect on the ground that he should have been permitted to enter a plea at the neglect proceeding. The trial court denied the motion to open, but also ruled that the father would be permitted to contest the issue of whether the children were neglected in the proceeding to terminate the respondents' parental rights, provided that he first established that he was a custodial parent.

At the termination proceeding, the trial court found that the father was not a custodial parent and, therefore, could not contest the issue of neglect. The trial court ultimately rendered judgments terminating the respondents' parental rights with respect to both children. The respondents then appealed to the Appellate Court, which reversed the judgments of the trial court on the ground that the trial court improperly had found that the father was not a custodial parent. 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 limited to the following issue: “Did the Appellate Court properly reverse the trial court's judgment[s] terminating the parental rights of the father and the mother?” In re Joseph W., 297 Conn. 928, 998 A.2d 1195 (2010). We conclude that the father was entitled to contest the neglect adjudication regardless of whether he was a custodial parent and, therefore, we affirm the judgment of the Appellate Court on this alternate ground.

The Appellate Court's opinion sets forth the following facts and procedural history. “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 [commissioner].... 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 [commissioner] upon the issuance of an order of temporary custody. Also on July 21, 2005, the [commissioner] 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,1 premised on allegations regarding the mother's mental health issues and the father's alleged inability to acknowledge the mother's parenting limitations. Joseph, Jr., has remained in the custody of the [commissioner] 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 [commissioner] took him into custody pursuant to an emergency ninety-six hour administrative hold. See General Statutes § 17a–101g. On July 24, 2006, the [commissioner] filed a neglect petition and sought an order of temporary custody as to Daniel. The custody order was granted on the same day. The allegations of neglect regarding Daniel were essentially the same as those made in the neglect petition regarding Joseph, Jr. As in the case of Joseph, Jr., Daniel has remained in the custody of the [commissioner] throughout the proceedings leading to this appeal.” In re Joseph W., supra, 121 Conn.App. at 607–609, 997 A.2d 512.

On August 2, 2007, a hearing was held on the neglect petitions regarding both children. The father was present, but did not enter a plea. 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 children to the custody of the [commissioner]. 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 [pursuant to General Statutes § 52–212],2 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. 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.3 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 [commissioner] would have the burden of proving, at the termination trial,4 that the children were neglected despite the prior adjudications of neglect.

“On June 16, 2008, the [commissioner] 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 [commissioner'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 [commissioner's] motion 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 [commissioner] objected. On August 21, 2008, the [commissioner] filed another motion asking the court to reconsider its May 30, 2008 order requiring the [commissioner] to prove at the termination of parental rights hearing that the children had been neglected. By way of a memorandum of decision dated August 25, 2008, the court, Bear, J., denied the father's motion for bifurcation, sustained the [commissioner's] objection to the motion for bifurcation and denied the [commissioner's] motion for reconsideration.” Id., at 609–11, 997 A.2d 512. Specifically, Judge Bear ruled that [i]f the father is found to be a custodial parent of a child named in such petition on the date of such petition ... at the consolidated trial [the commissioner will have] the burden of proving by a fair preponderance of the evidence that each such child was neglected or uncared for.... If the father is found not to be a custodial parent of such child ... the father's rights are limited ... and [the commissioner] does not have the burden of proving by a fair preponderance of the evidence that such child was neglected or uncared for ... the mother having previously [pleaded] nolo contendere and the court having adjudicated each child neglected....” (Emphasis in original.)

“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 [commissioner] 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 [commissioner] called Kathleen Dayner, a social worker with the department, to testify....

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