Juvenile Appeal (84-AB), In re

• Decision Date: 21 February 1984
• Citation: 471 A.2d 1380,192 Conn. 254
• Court: Connecticut Supreme Court
• Parties: In re JUVENILE APPEAL (84-AB) * .

Page 1380

471 A.2d 1380

192 Conn. 254

In re JUVENILE APPEAL (84-AB) ^*.

Supreme Court of Connecticut.

Argued Oct. 12, 1983.

Decided Feb. 21, 1984.

[192 Conn. 255] Leon O. Gross, Wallingford, for appellants (parents of the juvenile).

David K. Jaffe, 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).

Brian T. Mahon, Meriden, for appellee (juvenile).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

SPEZIALE, Chief Justice.

This is an appeal by the parents of a minor child, T, from two judgments of the trial court, one adjudicating T to be neglected and the other terminating their parental rights over T. The child's medical history showed that when T was six weeks old he was brought to Meriden-Wallingford Hospital for treatment of a bleeding mouth; at ten weeks old he was treated for multiple facial bruises. The parents contended throughout that these injuries were the results of accidents. On May 16, 1981, when the child was almost four months old, he was hospitalized for treatment of a swollen leg. Hospital x-rays indicated at least ten recent fractures in different parts of the body, in various stages of healing. Expert testimony indicated that the fractures resulted On May 20, 1981, the commissioner of the department of children and youth services (hereinafter DCYS) filed two separate petitions, alleging in one that T was neglected and in the other that termination of the parental rights was necessary. An order of temporary custody was issued immediately. ¹

                from a series of traumatic [192 Conn. 256] incidents.   The parents had no explanation for these injuries.   Also, two human bite marks were discovered on T's shoulder
                

A hearing on both petitions was held before the trial court on January 29, 1982, February 4, 1982, February 5, 1982, and February 8, 1982. Evidence relating to the adjudicatory and dispositive phases of both the neglect petition and the termination of parental rights petition was heard. On February 9, 1982, the trial court notified the parties that "the mandated social study" would be filed with the court by February 11, 1982. ² The trial court further advised that if any party desired a hearing in order to cross-examine the maker of the social study or to put on further evidence as to the disposition of either petition it would grant such a hearing. On February 10, 1982, the parents filed a motion to dismiss the petition to terminate parental rights based, inter alia, on the trial court's failure to "receive the mandatory study" and "make the mandatory study available to counsel" prior to the dispositional hearing on the neglect and termination of parental rights petitions. The trial court denied the motion to dismiss but stated that it would treat the motion as a request for a further dispositional hearing which it granted.

On February 16, 1982, the trial court adjudicated T to be a neglected child "by far more than the required fair preponderance of the evidence." The further dispositional hearing took place on February 19, 1982, and March 4, 1982. On April 2, 1982, the trial court rendered its final judgment on each petition, this time adjudicating T to be a neglected child "by clear and convincing evidence" ³ and also finding "by clear and convincing proof that ... grounds exist to terminate the parental rights of the parents." ⁴ See General Statutes § 45-61f(d).

The parents appealed claiming that the trial court erred: (1) in its failure to require DCYS to provide supportive services in an attempt to reunite the family; (2) in its failure to have the mandated social study filed and made available to the parents prior to the hearing; (3) in its use of the fair preponderance of evidence as the standard of proof in the adjudicatory phase of the proceedings; and (4) in changing the standard of proof between the adjudicatory phase and the dispositive phase of the proceedings. We find no error.

I SUPPORTIVE SERVICES

The parents claim that DCYS failed to provide assistance to the parents in an attempt to reunite the family. While this issue has not been properly preserved, ⁵ "[t]his court may ... consider claims not properly assigned and will sometimes examine them so as to see that no substantial injustice has been done." State v. Anonymous, 179 Conn. 155, 159, 425 A.2d 939 (1979). See Practice Book § 3063. The primary concern of DCYS is the safety of T. Family integrity can be the goal of DCYS only when such reunion will not endanger the safety of the child. "Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings." (Emphasis added.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983). Because there was sufficient evidence that T could not be safely returned to his parents, the trial court did not err in failing to require DCYS to provide supportive services in an attempt to reunite the family.

II MANDATED SOCIAL STUDY

The parents also claim error in the trial court's failure to have the mandated social study filed and made available to the parents prior to hearing evidence on the dispositional phase. Practice Book § 1044 requires DCYS to prepare a case study in each petition for a neglected child. ⁶ While there is no requirement that the adjudicatory and dispositional hearings be held separately; State v. Anonymous, supra, 179 Conn. 172, 425 A.2d 939; the study must be submitted to the court before any dispositional decision is made. Practice Book § 1044(1). A social study was filed January 29, 1982, the day the hearing began. Following adjudication of neglect, the trial court requested an updated study to be filed by February 11, 1982. The trial court did not render its decision on disposition until April 2, 1982, having given the parties an opportunity to respond to the updated study. Thus, the court did comply with Practice Book § 1044(1) because the study Furthermore, it was at the parents' request that evidence relating to both adjudication and disposition was heard at the same hearing; the trial court often cautioned counsel for the parents that certain testimony went to disposition rather than to adjudication. ⁷ The trial court was correct in concluding therefore that the parents waived any objection they might have had to the combined hearing.

was submitted before any dispositional decision was made.

The purpose of the social study is to put parents on notice of allegations that need to be explained or denied. The respondents must have an opportunity "to refute or rebut the contentions with which they disagree." Practice Book § 1044(4). The parents had such an opportunity because the trial court held further hearings after the updated social study was filed. Thus there was no error in the court's failure to have the updated social study filed before the hearing commenced.

III APPLICABLE STANDARDS OF PROOF

The parents contend that the trial court adjudicated T to be a neglected child using a fair preponderance of the evidence standard. On March 24, 1982, after T had been adjudicated a neglected child but before the trial court ruled on the disposition of the neglect petition or on the termination of parental rights petition, the United States Supreme Court held that termination of parental rights must be based upon clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391, 71 L.Ed.2d 599 (1982). The trial court's memorandum of decision, dated April 2, 1982, used the clear and convincing standard of proof both in reiterating its finding that T was neglected ⁸ and in ordering parental rights terminated. The parents argue that because the hearings on the petitions were not "bifurcated," and because the trial court on the neglect petition had initially relied upon the fair preponderance standard of proof in finding neglect, it necessarily used the same fair preponderance standard of proof on the termination of parental rights petition. We disagree.

The petition for neglect and the petition to terminate parental rights are separate and distinct petitions. Where a neglect petition is filed, the court first adjudicates whether there is neglect. See Practice Book § 1042. Only when a finding of neglect is made does the court move on to the dispositional phase of the neglect petition. See Practice Book § 1044. Disposition in a neglect petition may take one of a number of forms, including return to parents, return to parents with a protective order, foster care placement, or the initiation of proceedings to terminate parental rights.

The termination of parental rights petition involves its own specific elements. ⁹ Where such a petition has been brought pursuant to General Statutes § 45-61f(d)(2), as in this case, the trial court first determines whether the subject child "has been denied, by reason of acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being." General Statutes § 45-61f(d)(2). Once that has been found the court considers whether "these parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not, in the best interests of the child, be permitted to exercise, parental rights and duties." Id. While termination of parental rights by petition may be the disposition following a finding of neglect on a neglect petition, there are two separate actions and each petition has its own specific requirements.

A THE NEGLECT PETITION

"The Connecticut legislature has declared: 'The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the...