In re Zoey H.

• Decision Date: 11 July 2018
• Docket Number: AC 41157
• Citation: 183 Conn.App. 327,192 A.3d 522
• Court: Connecticut Court of Appeals
• Parties: IN RE ZOEY H.

183 Conn.App. 327

192 A.3d 522

IN RE ZOEY H.^*

AC 41157

Appellate Court of Connecticut.

Argued May 21, 2018

Officially released July 11, 2018^**

Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent father).

Evan O'Roark, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Elgo, Bright and Mihalakos, Js.

BRIGHT, J.

The respondent father, Jonathan S., appeals from the judgment of the trial court denying his motion to revoke the commitment of his minor daughter, Zoey H., to the petitioner, the Commissioner of Children and Families.¹ The respondent claims that (1) his right to procedural due process under the United States constitution was violated by the court's failure to hold a hearing to determine his fitness as a parent before depriving him of the custody and care of his child, and (2) as applied, General Statutes § 46b–129 (m) violates his right to substantive due process under the United States constitution and improperly assigns the burden of proof to him. We affirm the judgment of the trial court.

The following factual findings, which are not challenged, and procedural history are relevant to our consideration of the issues raised on appeal. Zoey was born on May 9, 2015. Because her mother, M, was homeless and exhibited behavior that raised concerns about her ability to care for Zoey,² the petitioner sought and was granted an ex parte order of temporary custody, thereby removing Zoey from M's custody. Zoey was placed in a nonrelative foster home, where she remained up to and through the hearing that resulted in the judgment at issue in this appeal. On September 23, 2015, following a hearing, and with M's admission, the court adjudicated Zoey to be uncared for and committed Zoey to the custody of the petitioner. The man that M identified as Zoey's father, who appeared at the hearing, stood silent with respect to the adjudication. Thereafter, genetic testing established that he was not Zoey's biological father, and on October 13, 2015, he was dismissed from the case. After Zoey's commitment, M engaged in some sporadic mental health services, but soon stopped taking advantage of such services and began to deny the need for further treatment. In March, 2016, the respondent came forward and moved to be cited into the case, asserting that he was Zoey's actual father; the court added him as a party. Genetic testing confirmed that the respondent was Zoey's biological father, and, on May 19, 2016, the court adjudicated him as such.

On May 6, 2016, before the results of genetic testing were submitted to the court, the respondent filed a motion to revoke Zoey's commitment to the petitioner. The motion was supported by M, who did not seek revocation and custody herself. The petitioner filed an objection to the respondent's motion to revoke commitment.

The court scheduled a review of the matter for June 20, 2016, at which time the respondent was presented with specific steps that had been drafted by the Department of Children and Families (department) to aid with his reunification with Zoey. The respondent refused to sign the specific steps after objecting to some of them, including undergoing a substance abuse evaluation and a mental health evaluation. Nevertheless, the respondent did agree to visits with Zoey, supervised by All Pointe, LLC, and he agreed to attend psychotherapy at the Yale Child Study Center. The court, over the respondent's objection, accepted all of the specific steps recommended by the department and, on June 20, 2016, made them orders of the court.

On July 14, 2016, the court held a hearing on the respondent's motion to revoke commitment.³ After considering the evidence presented and the arguments advanced, the court denied the respondent's motion. The court commended the respondent for coming forward and for being proactive. It held, however, that the respondent had failed to put forth a prima facie case that would permit the court to revoke Zoey's commitment. The court explained that it would not be in Zoey's best interest for her commitment to be revoked, but that with psychotherapy to assist the respondent with recognizing Zoey's particular needs, and some assistance with creating a better bond with Zoey, the respondent, after continued supervised visitation and psychotherapy sessions, might be successful in reunification. The respondent did not appeal from that July 14, 2016 judgment.

Instead, the respondent continued to engage in supervised visitation with Zoey and actually began some of the services set forth in the specific steps ordered by the court. In particular, in September, 2016, the respondent attended his first appointment at the parent-child psychotherapy program at the Yale Child Study Center. The respondent was discharged from the program one month later when he failed to attend his next scheduled appointment and did not return calls or text messages from the center. Similarly, the respondent attended the first of ten parenting classes through All Pointe, LLC, but never completed another class.

On June 8, 2017, nearly one year after the denial of his first motion to revoke commitment, the respondent filed a second motion to revoke commitment. The court held a hearing on the motion on August 30, October 10 and October 26, 2017, at which the respondent argued that he had done everything necessary to secure reunification with Zoey. The petitioner argued that the respondent had failed to comply with the specific steps that the court had ordered, that he did not have a good understanding of Zoey's needs, that he did not have a sufficient bond with her because he failed to attend the parent-child therapy as ordered, and that he had engaged in concerning behavior during some of his visits with Zoey.

In a very thorough October 31, 2017 memorandum of decision, the court found that the respondent failed to comply with any of the court-ordered specific steps, with the exception of supervised visitation. The court also credited the respondent's testimony that he would not abide by any court orders until he obtained custody of Zoey, and that he would "not participate in recommended services that were ordered by [the] court in order to meet Zoey's needs prior to reunification." The court discussed the respondent's unwillingness to heed the recommendations of medical professionals, and it concluded that the respondent "show[ed] a lack of regard for Zoey's needs ... putting his need to be sole decision maker regarding Zoey's diet ... before Zoey's health." The court further found that the respondent was unwilling to communicate with Zoey's foster parents because, in the words of the respondent, "they come from two different worlds and have nothing in common. They have a nanny and he does not. He further stated that there is nothing they can tell him about his own child."

The court also discussed the respondent's inability to recognize safety issues concerning Zoey. It commented on the respondent's testimony that, despite M's unaddressed mental health issues, he would permit her to visit with Zoey whenever she wanted to visit. The court also commented on the respondent's aggression and outbursts at the Boys and Girls Village, which caused Zoey to exhibit fear during several visits that were conducted there. The court credited the testimony of a department social worker, Renata Tecza, that the reason the department was insisting that the respondent undergo a mental health evaluation was because his "anger 'rises to a different level,' and this is a concern for Zoey's safety going forward."

On the basis of this and other evidence, the court denied the respondent's motion to revoke commitment, finding that "the preponderance of the evidence shows that the [respondent's] failure to comply with his specific steps impacted his ability to meet Zoey's needs both medically and emotionally. This failure also has had an impact upon his ability to keep her safe." This appeal followed. Additional facts will be set forth as necessary.

I

The respondent claims that his right to procedural due process under the United States constitution was violated by the court's failure to hold an adjudicative hearing to determine his fitness as a parent before infringing on his right to the custody and care of his biological child. Insofar as this claim may not have been preserved properly, he requests review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989). The petitioner argues that the respondent's claim is not only unpreserved, but that it is unreviewable because the respondent is attempting to attack the original judgment that adjudicated Zoey uncared for and committed her to the petitioner's custody. She contends that the respondent did not request an adjudicative hearing and that he should have filed a motion to open the original judgment on the basis of mutual mistake regarding paternity as soon as he was added as a party to this case and determined to be Zoey's biological father. She argues: "He cannot now, after having twice lost at trial on motions to revoke commitment, argue that the original judgment was defective because he didn't have the opportunity to participate in the dispositional hearing that led to Zoey ... being committed." We conclude that the respondent's claim is reviewable under Golding , but that the claim fails to satisfy Golding 's third prong because the court did not violate the respondent's right to procedural due process when it denied his motion to revoke commitment.

Under Golding , "a [respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the...