Juvenile Appeal, In re

• Decision Date: 22 June 1982
• Citation: 446 A.2d 808,187 Conn. 431
• Court: Connecticut Supreme Court
• Parties: In re JUVENILE APPEAL. *

Page 808

446 A.2d 808

187 Conn. 431

In re JUVENILE APPEAL. ^*

Supreme Court of Connecticut.

Argued April 1, 1982.

Decided June 22, 1982.

C. Thomas Furniss, Sp. Public Defender, with whom was Joseph P. Quinn, Jr., Hartford, for appellant (putative father).

Richard T. Couture, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (com'r of the dept. of children and youth services).

Donna P. Murphy, New Britain, for minor child.

Before SPEZIALE, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ. PETERS, Associate Justice.

This case questions the procedure and the evidence underlying a decision to terminate parental rights. The respondent, a putative father incarcerated outside Connecticut at the time of the termination hearing, claims on appeal that the trial court erred by denying him a continuance until his release from prison and by finding abandonment on the basis of insufficient evidence.

In its memorandum of decision the trial court found the following facts. The child at issue in this appeal, Jesse Henry G., was born on February 19, 1976, to Marlene C. D., who at that time had been separated for some fourteen months from David D., her husband. David D. has made no claim to Jesse's paternity and, although served by publication, has not appeared in person or by counsel in these termination proceedings. The respondent, Stanley G., was living with Marlene C. D. in Hartford at the time of Jesse's birth and was, by consent, named on Jesse's birth certificate as the child's father. Although he continued to hold himself out as Jesse's father and was named as such by Marlene C. D. on her application for an aid to dependent children grant, Stanley G. has never signed a formal acknowledgement of paternity or contributed to the child's support.

The respondent lived with Marlene C. D. continuously, except for a four month interval, from the time of Jesse's birth until April 1977, when he left Hartford to avoid an anticipated arrest for assault. He was subsequently arrested in California on an unrelated charge of armed robbery, convicted, and imprisoned in the summer of 1977; his discharge was tentatively scheduled for July 1980.

Following the respondent's departure from Hartford, he spoke once by telephone with Marlene C. D., who informed him of her intention to sever their relationship. She acted on that intention by obtaining a new address and an unlisted telephone number and had no further contact with the respondent before her death on December 1, 1978. Jesse's maternal grandmother, Mrs. C., then assumed the responsibility of caring for him. When the respondent telephoned her to express his sorrow at Marlene C. D.'s death and to offer possible veteran's benefits for the child's support, the grandmother rejected his assistance. The respondent's only additional contact with Jesse since April 1977 consists of one birthday card sent in February 1979.

The termination proceedings leading to this appeal were prompted by Mrs. C.'s decision that her age and health would no longer permit her to care for Jesse adequately. In April 1979 she contacted the Connecticut department of children and youth services to request a permanent placement for him. The state then on June 29, 1979, filed two petitions, one seeking to have Jesse declared a neglected child under General Statutes § 46b-120 and the other seeking to terminate the parental rights of the respondent and of David D. under General Statutes § 17-43a(b). ¹ After the respondent's October 9 motion seeking a continuance until his expected release from prison was rejected, the parties stipulated to a fact-finding hearing before Referee Gill, which occurred on December 20, 1979, and March 12, 1980. ² The facts found by the referee were adopted in their entirety by the trial court which, after a hearing on April 17, 1980, rejected the neglect petition but terminated the parental rights of both the respondent and David D. on the ground of abandonment. Only the respondent has taken an appeal.

The respondent raises two issues on this appeal, one procedural and the other evidentiary. First, he claims that the trial court's refusal to grant a continuance until he could be present at the termination hearing was a denial of due process. Second, he claims that the state as petitioner failed to prove by clear and convincing evidence that he had abandoned Jesse.

I

In reviewing the respondent's first claim of error, we recognize that "the rights of parents qua parents to the custody of their children is an important principle that has constitutional dimensions," a principle echoed and illuminated in recent years by decisions of the United States Supreme Court and of this court. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661, 420 A.2d 875 (1979). See Santosky v. Kramer, --- U.S. ----, ----, 102 S.Ct. 1388, ----, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); In re Juvenile Appeal, --- Conn. ---, ---, 438 A.2d 801 (42 Conn.L.J., No. 30, pp. 13, 14) (1981); Hao Thi Popp v. Lucas, --- Conn. ---, --- - ---, 438 A.2d 755 (42 Conn.L.J., No. 26, pp. 1, 3-4) (1980); In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640-41, 436 A.2d 290 (1980); State v. Anonymous, 179 Conn. 155, 162-63, 425 A.2d 939 (1979); Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).

The respondent's due process rights are therefore properly determined by the balancing test of Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), employed by the United States Supreme Court in considering a parent's right in termination proceedings to representation by counsel; Lassiter v. Department of Social Services of Durham County, North Carolina, supra, 452 U.S. 27, 101 S.Ct. 2160; and to the use of a clear and convincing standard of proof. Santosky v. Kramer, supra, --- U.S. ----, 102 S.Ct. ----. Mathews v. Eldridge, supra, 424 U.S. 335, 96 S.Ct. 903, mandates "consideration of three distinct factors. First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." It is these three distinct factors that we must consider in determining the respondent's right to be present at the hearing concerning the termination of his parental rights.

The first factor specified by Mathews, the respondent's interest in retaining his parental rights to his son, is clearly both compelling and constitutionally protected. This interest is not undermined by the respondent's failure to be adjudicated Jesse's father by a court of competent jurisdiction, to acknowledge his paternity in writing or to contribute regularly to Jesse's support; General Statutes § 45-61d; ³ since, as the trial court found, he had sufficiently held himself out as Jesse's father to establish his legal interest. Stanley v. Illinois, supra, 405 U.S. 651-52, 92 S.Ct. 1212-13; Pi v. Delta, 175 Conn. 527, 530-32, 400 A.2d 709 (1978).

The second factor under Mathews, the risk of error occasioned by the respondent's absence from the termination hearing, is crucial to the respondent's claim. To evaluate this argument properly, we must first describe the trial court's unusual arrangements to secure the respondent's long-distance participation following its denial of his motion for continuance. At the initial day of hearings before Referee Gill, on December 20, 1979, the state's principal witness, Jesse's maternal grandmother, testified and was cross-examined by the respondent's counsel. A complete transcript of that hearing was then sent to the respondent, who discussed the witness' testimony with his counsel by telephone. At a second session, on March 12, 1980, a speaker was attached to a telephone at the court in Connecticut and the respondent testified from his California prison; his voice was audible to all those attending the hearing, and he was cross-examined by the state and by Jesse's counsel.

The respondent argues that this procedure was inadequate in two respects: it weakened the efficacy of his cross-examination of Mrs. C., and it prevented the trial court from observing his demeanor while testifying. Although this court has denounced "laxity in procedural safeguards" at termination hearings; Anonymous v. Norton, supra, 168 Conn. 425, 362 A.2d 532; we do not find the procedures instituted here so lax as to increase significantly the risk of an erroneous deprivation. See Quaglino v. Quaglino, 88 Cal.App.3d 542, 547, 152 Cal.Rptr. 47 (1979); Casper v. Huber, 85 Nev. 474, 456 P.2d 436, 437 (1969); In Interest of F. H., 283 N.W.2d 202, 209 (N.D.1979).

The respondent's first argument fails to establish exactly what assistance he might have provided his counsel had he been physically present at the first hearing. The respondent does not deny that he had adequate time for perusal of Mrs. C.'s testimony and for consultation with his attorney. Although the court had offered him the option of deferring cross-examination entirely until the respondent had an opportunity to see the transcript, he elected instead to have his counsel cross-examine immediately with a reserved right to ask additional questions at the second hearing. Since the respondent did not, in fact, avail himself of this opportunity, we may assume that he was satisfied with the results of the initial cross-examination. Further, there is no claim that the respondent's counsel was an inadequate...