Juvenile Appeal, In re

• Decision Date: 31 August 1982
• Docket Number: Docket No. 10718
• Citation: 188 Conn. 259,449 A.2d 165
• Court: Connecticut Supreme Court
• Parties: In re JUVENILE APPEAL () * . 10718

Page 165

449 A.2d 165

188 Conn. 259

In re JUVENILE APPEAL (Docket No. 10718) ^* 10718

Supreme Court of Connecticut.

Argued May 12, 1982.

Decided Aug. 31, 1982.

John C. Kucej, Waterbury, for appellant (mother of minor child).

William Hickey, Stamford, for appellant (defendant minor child).

Edward Duffy, Waterbury, for appellee (intervening plaintiff foster parents).

Judith M. Earl, Asst. Atty. Gen., with whom were Carol A. Feinstein, Asst. Atty. Gen., and Carl R. Ajello, Atty. Gen., for appellee (state of Connecticut).

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

PARSKEY, Associate Justice.

The respondent in this action appeals from a judgment terminating her parental rights pursuant to subsections (2) and (4) of General Statutes § 17-43a(a) ¹ with respect to her eight year old son. Her claims of error are that (1) the criteria set forth in subsections (1) and (4) of § 17-43a(a) are arbitrary and unreasonable and therefore violate her constitutionally guaranteed rights; (2) there was insufficient evidence to support the termination order; and (3) the intervention of the foster parents as parties denied her a fair hearing. Because our view of the intervention issue is dispositive of this appeal we need not address the remaining issues, including the constitutional claims, and we reserve those issues for another day. During the hearing before the referee the foster parents, over the mother's objection, were permitted to intervene as parties. The question before us is whether such intervention was permissible.

Although foster parents have standing in any proceeding concerning the placement or revocation of commitment of a foster child; General Statutes § 46b-129(i); ² this standing does not spill over into a proceeding involving termination of parental rights. Thus the only question before us is whether the trial court has discretionary authority to permit the intervention of foster parents in such proceedings pursuant to Practice Book § 1023(l ). ³ Our categorical answer to that question is "No."

"It is ... essential, in considering a petition to terminate parental rights, to sever completely the issues of whether termination is statutorily warranted and whether a proposed adoption is desirable. Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available, there still must be a two-step process to determine, first, the threshold question of whether cause for termination under § 17-43a has been proved. 'The best interests of the child, as such, is not an ingredient of [grounds for termination] and is not involved in this threshold question.' Matter of Corey L. v. Martin L., 45 N.Y.2d 383, 391 , 380 N.E.2d 266 (1978) ...." In re Juvenile Appeal (Anonymous) v. Commissioner of Children & Youth Services, 177 Conn. 648, 673, 420 A.2d 875 (1979). "Only if a ground for termination exists may the suitability and circumstances of adoptive parents, in an appropriate proceeding, be considered." In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645, 436 A.2d 290 (1980). The intervention of foster parents as parties at the termination stage will permit them to shape the case in such a way as to introduce an impermissible ingredient into the termination proceedings. "Petitions for termination of parental rights are particularly vulnerable to the 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." In re Juvenile Appeal (Anonymous) v. Commissioner of Children & Youth Services, 177 Conn. 648, 672-73, 420 A.2d 875 (1979). ⁴

There is error, the judgment is set aside and the case is remanded with direction to deny the motion of the foster parents to intervene and thereafter to proceed according to law.

In this opinion SPEZIALE, C. J., and PETERS and ARMENTANO, JJ., concurred.

SHEA, Associate Justice (dissenting).

I disagree with the majority's view that the intervention of the foster parents as parties in the parental termination proceeding denied the respondent a fair hearing. I am, therefore, unable to concur that a new trial, at which the foster parents may be present only as witnesses or observers, is necessary.

I have no quarrel with the majority's view that the permissibility of intervention by foster parents in a custodial placement or revocation proceeding; General Statutes § 46b-129(i); does not mandate the same result in a parental termination hearing. I am not convinced, however, that the absence of a provision in the parental termination statute granting standing to foster parents divests the trial court of its discretion to allow the foster parents to intervene as "equitable parties at interest" pursuant to Practice Book § 1023(l ). ¹

This court has recently had an opportunity to articulate the nature of intervention in our practice. See Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982). We looked to the comparable federal rule; Fed.R.Civ.Proc., rule 24; ² for guidance. Id., 187 Conn. 192, 445 A.2d 579. The majority's emphasis on the pitfalls of blurring the adjudicative and dispositive phases of a termination proceeding militates against the existence of intervention of right, as defined in Horton v. Meskill, supra, since, like the suburban municipalities in that case, the foster parents may not have an interest sufficiently "direct and immediate" in the outcome. Id., 195, 445 A.2d 579. A careful reading of the relevant statutes suggests, however, that once a person, such as a foster parent, has been notified by the court that a petition for termination of parental rights will be heard, he has a right to appear at the hearing. General Statutes §§ 45-61d(b)(3) ³ and 45-61f(a). ⁴ Certainly court ordered notice to foster parents is within the ambit of General Statutes § 45-61d(b)(3), which provides that the court shall order such notice to be given to "the guardian or any other person whom the court shall deem appropriate." Since the court is vested with discretion to notify the foster parents and, once notified, they "shall have the right to appear and be heard with respect to the petition"; General Statutes § 45-61f(a); it follows that the statutory scheme permits them to intervene. See Horton v. Meskill, supra, 197, 445 A.2d 579; Fed.R.Civ.Proc., rule 24(b). In Horton we listed several factors relevant to a decision on a motion for permissive intervention, including: "the proposed intervenor's interests in the controversy, the adequacy of representation of such interests by existing parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in terms of resolving the controversy before the court." Ibid. "A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court's discretion." Ibid. Although my view is that evaluation of the factors enumerated vindicates the trial court's ruling in this case, I need not explore this avenue further because I am also convinced that even if the trial court erred in granting the motion, its error was harmless.

It is axiomatic that to require reversal, error must be harmful. See General Statutes § 52-265; Wood v. Connecticut Savings Bank, 87 Conn. 341, 350, 87 A. 983 (1913); Watson v. Watson, 14 Conn. 188, 191 (1841); Fitch v. Chapman, 10 Conn. 8, 13 (1833). There is no fact or circumstance in this case which indicates that the respondent was prejudiced by the admission of the foster parents as parties. See Merwin v. Richardson, 52 Conn. 223, 235 (1884). Unquestionably the foster parents, even had they not been allowed to intervene, would have been permitted to testify, as the foster mother did, during the adjudicative phase of the termination proceedings. The majority opinion does not question that her testimony was highly relevant to the grounds alleged for termination of parental rights. See subsections (1), (2) and (4) of General Statutes § 17-43a(a). The respondent claims that the testimony of the foster mother was tainted by "self-interest." No objection was made on the basis that she was incompetent to testify, nor would such an objection have been sustained. See General Statutes § 52-145. The majority's fear that "[t]he intervention of foster parents as parties at the termination stage will permit them to shape the case" impermissibly would be a valid concern only if new issues were raised or evidence introduced unrelated to the grounds for termination set forth in the petition. This consideration is not, however, a ground for reversal in a vacuum. The record and the majority opinion are devoid of any indication that these foster parents shaped this litigation, called witnesses, or did anything other than testify and observe the proceedings. The majority has not even suggested how this respondent might have been prejudiced by the intervention of the foster parents. When the record does not disclose that a litigant was harmed in any way by the addition of another as a party, "the error cannot avail him as a ground for a new trial." Carroll v. Weaver, 65 Conn. 76, 84, 31 A. 489 (1894); see Porter v. Orient Ins. Co., 72 Conn. 519, 526, 45 A. 7 (1900); Hurd v. Hotchkiss, 72 Conn. 472, 479, 45 A. 11 (1900); Burns v. Fredericks, 37 Conn. 86, 93 (1870).

For the foregoing reasons, I dissent.

* In accordance with the spirit and intent of General Statutes § 46b-142(b) and Practice Book § 3161, the names of the parties involved in this appeal are not disclosed and the records and briefs will not be distributed to the various libraries of the state. The records and papers of this case shall be open...