Juvenile Appeal (84-3), In re

Decision Date27 March 1984
Docket NumberNo. 2321,2321
Citation473 A.2d 795,1 Conn.App. 463
CourtConnecticut Court of Appeals
PartiesIn re JUVENILE APPEAL (84-3) * .

John C. Wirzbicki, Noank, for appellant (mother of the juvenile).

Judith M. Earl, Asst. Atty. Gen., with whom, on the brief, was Joseph I. Lieberman, Atty. Gen., for appellee (commissioner of the department of children and youth services.)

Before TESTO, HULL and BORDEN, JJ.

BORDEN, Judge.

This is an appeal 1 by the respondent mother from a judgment terminating her parental rights in the older of her two children, her daughter. The commissioner of children and youth services brought a termination petition pursuant to General Statutes § 17-43a, subsections (a)(2), (a)(3) and (a)(4). 2

The court found that the commissioner had sustained his burden of proof on each of the three grounds alleged in the petition. 3 As to the first ground, it found that the respondent has failed to achieve the statutorily required degree of personal rehabilitation in that she has failed to make a suitable plan for the child's care, has been unable properly to care for the child when the child visited overnight and has refused to become involved in learning parental skills. As to the second ground, it found that because of the respondent's continued mental deficiency, she is and, for a period of time which will be detrimental to the child's best interest, will continue to be unable to provide the child with the statutorily required guidance and control; she has a very low verbal I.Q. on the Wechsler Adult Intelligence Scale; she has shown an inability to provide minimal care for the child without close supervision and support; no placement has been found which will take both her and the child together and she has no next of kin who seems to be interested in her future. As to the third ground, it found that there is no ongoing parent-child relationship, as statutorily defined, and that to allow further time for the establishment of such a relationship would be detrimental to the child's best interest; the child has been in the foster home of Mr. and Mrs. S since February 8, 1980; the respondent has visited the child infrequently and sporadically; and the child views Mr. and Mrs. S as her parents and does not recognize the respondent as her mother. The court thereupon ordered the respondent's parental rights terminated.

The respondent appealed, claiming that there was insufficient evidence to justify termination of parental rights. 4 We agree. 5

I

"The termination of parental rights is defined as 'the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent....' General Statutes § 45-61b(g). It is 'a most serious and sensitive judicial action.' Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975). 'Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children "undeniably warrants deference and, absent a powerful countervailing interest, protection." ' " (Citations omitted.) In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640, 436 A.2d 290 (1980), quoting In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979).

Compliance with the statutory criteria for termination cannot be dismissed by an all-encompassing "best interests" standard. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 672, 420 A.2d 875 (1979). "Insistence upon strict compliance with the statutory criteria before termination of parental rights and subsequent adoption proceedings can occur is not inconsistent with concern for the best interests of the child. Rather, it enchances the child's best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child's 'best interests.' " Id. "[T]he risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child's natural parents with those of prospective adoptive parents and therefore to reach a result based on such comparisons rather than on the statutory criteria" requires the court, "in considering a petition to terminate parental rights, to sever completely the issue of whether termination is statutorily warranted and whether a proposed adoption is desirable"; id., 672-73, 420 A.2d 875; although evidence as to the child's relationship with the foster parents and their availability and suitability as adoptive parents is relevant to the issue of the child's best interest under General Statutes § 17-43a(a)(4). In re Juvenile Appeal (Anonymous), 181 Conn. 638, 646, 436 A.2d 290 (1980).

General Statutes § 17-43a specifies those instances which may justify the termination of parental rights in the absence of consent. The commissioner must allege and prove, by clear and convincing evidence, one or more of the statutory grounds. In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983). The "clear and convincing" burden of proof is constitutionally mandated. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). It refers to a standard of proof that is between the standard required in an ordinary civil action and that required to find criminal guilt. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). There must be "more than average certainty on the part of the factfinder." Santosky v. Kramer, supra, 455 U.S. 758, 102 S.Ct. 1396-97; In re Juvenile Appeal (83-CD), supra, 189 Conn. 297, 455 A.2d 1313.

II

The hearing in the trial court lasted over a period of four days in October and November, 1981. The court found the following significant subordinate facts. At the time of the child's birth on February 4, 1980, the respondent was herself committed to the department of children and youth services (DCYS). The child was conceived while the respondent was at Stone Gate School, a residential treatment center for the retarded. The respondent was placed there because she could not cope with the rigors of a regular school system. Four days after her birth the child was placed in foster care in the S home. The respondent has visited the child very infrequently. Mrs. S, with whom the child has lived almost her entire life, loves the child greatly and wishes to adopt her. The child refers to Mr. and Mrs. S as "mommy" and "daddy" and does not refer to the respondent, who is foreign to her. The respondent became pregnant again while residing with her aunt shortly after her release from the maternity hospital. She was then placed in a foster home in Hartford. The respondent gave birth to her second child, a son, on September 4, 1981, and was eventually placed in the teenage parent program (TAP) of the Hartford school system. The trial court further found that because of her borderline intelligence, prior personal history, inability to obtain family support and the necessity of continued outside support, the respondent, who does not have the capacity to cope with the general tasks of everyday living, would be unable reasonably to provide minimum care for the child without continual and extensive support.

Because the trial court found all three grounds for termination, because we find that specific critical findings of the trial court are not supported by the evidence, because much of the evidence bears on more than one statutory ground, and because we conclude that none of the grounds for termination was supported by sufficient evidence, we find it necessary to summarize the evidence before the trial court.

A

The commissioner's case in chief consisted of testimony from four witnesses. The first was Mrs. St, a foster mother with whom the child was placed for about three weeks in April, 1981. She testified essentially as follows. When Mr. and Mrs. S visited the child at her home, the child, age fifteen months at that time, was happy to see them and sad when they left. The respondent did not contact her but, in a visit arranged by the DCYS caseworker, she visited the child, who cried when the respondent was there. The child did not cry when other people came to see her.

Mrs. S, the principal foster mother, testified essentially as follows. The child has been in her home in Plainfield for twenty months, from four days after her birth, except for approximately three weeks when she was with Mrs. St. The placement with Mrs. St was at Mrs. S's request. When the child was one and one-half months old Mrs. S, who has an adopted boy, was told by the caseworker that DCYS was going to move for termination. When the child was fourteen months old, she and Mr. S were told they could not adopt her because they were not black. She therefore asked that the child be placed with someone by whom she could be adopted, in order to get used to living with a black family. After the child was removed, she was told that if and when the termination was accomplished she would be able to adopt her. She loves the child a great deal. If termination is accomplished she plans to try to adopt the child, but if she cannot she is willing to keep the child in her foster care indefinitely. The child calls her "mommy" and does not refer to the respondent. The child, who had a congenital hip problem which is now healed, is normal.

She also testified to the course and nature of the respondent's visits with the child. For the first three or four months the respondent visited the child once a month, then once every two months, and she last saw the child in April, 1981, at the DCYS office in Norwich, an unfamiliar place for the child. At first the child did not want to go to the respondent but then she did and they played together. When Mrs. S was in the room with the child and the respondent, the...

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