Kearney v. State

• Citation: 386 A.2d 223,174 Conn. 244
• Court: Connecticut Supreme Court
• Decision Date: 14 February 1978
• Parties: James T. KEARNEY et al. v. STATE of Connecticut et al.

Page 223

386 A.2d 223

174 Conn. 244

James T. KEARNEY et al. v. STATE of Connecticut et al.

Supreme Court of Connecticut.

Argued Oct. 19, 1977.

Decided Feb. 14, 1978.

Frank B. Cochran, New Haven, for appellants (intervening defendants Robert and Nancy Santacroce).

Martin B. Burke, Vernon, with whom were Leo B. Flaherty, Jr. and Mitchel E. Kallet, Rockville, for appellees (plaintiffs).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

SPEZIALE, Associate Justice.

This is an appeal by the intervening defendants, Robert and Nancy Santacroce, from a judgment of the Superior Court, denying their prayer for a writ of habeas corpus and ordering that custody of the minor child remain with the plaintiffs, James and Alice Kearney.

A statement of the background in this case is necessary to place the issues in proper context and to explain the limited scope of our review of the issues raised. The minor child, Tina, whose custody is in dispute here, was born May 15, 1975. On November 2, 1975, Tina was placed with the Santacroces for foster care. She resided continuously with them from November 2, 1975, until January 12, 1977. The Santacroce family consists of Robert and Nancy, their four natural children, ranging in age from five to thirteen years, and a nine-year-old niece. Mr. and Mrs. Santacroce have been taking foster children for the state for about three years, and during that time have cared for approximately fifty foster children. With the exception of Tina, none of these children stayed for more than six weeks continuously. In March, 1976, Mrs. Santacroce asked Paula Mikutel, Tina's social worker, whether she could be considered as an adoptive parent if Tina were released for adoption. Mrs. Mikutel responded that it was not customary for temporary foster parents to adopt. At that time, Tina was not available for adoption, since no proceeding had been instituted to terminate the rights of her natural mother. In November, 1976, the natural mother's rights were terminated by court order. The Santacroces were informed of the termination some time in December, and before Christmas Mrs. Santacroce was told that Tina would be made available for adoption. Mr. and Mrs. Santacroce never filed a formal application to adopt Tina.

Mr. and Mrs. James T. Kearney made an application to the state for adoption in November, 1972. On January 4, 1977, Sandra Tinyk, the case social worker who had investigated them as potential adoptive parents, informed the Kearneys that there was a little girl ready for them to adopt. The Kearneys saw Tina at the Santacroce home on January 10 and 11, 1977. On January 12, they returned to the Santacroces and left with Tina. Upon receiving the child, the Kearneys signed an agreement to adopt with the department of children and youth services. They were assured by Mrs. Tinyk that Tina was fully and legally available for adoption and that "under no circumstances would she be removed" unless an investigation "might lead to . . . (the department's) knowledge of the child's neglect or abuse by . . . (the Kearneys)."

The department of children and youth services has a policy of providing the opportunity for an administrative case review prior to removal of a child from a foster home where he or she has resided for more than ninety days. The policy requires that a revocation proceeding involving a child in a foster home be preceded by written notice to the child and the foster parents, and if either the child or the foster parents express concern that the plan is not in the best interest of the child, they must be advised of their right to a case review and assisted in requesting the review. Because none of the other foster children placed with the Santacroces had ever remained for more than ninety days, this policy had not been applicable to prior removals, and Mrs. Santacroce was unaware of its existence until after Tina was removed from her home. Although Tina had remained with the Santacroces for over fourteen months, no case review was held prior to the decision to remove Tina. The state conceded that it had erred in failing to notify the Santacroces of their right to such a review.

Approximately one week after Tina was removed from their home, Mrs. Santacroce contacted the department of children and youth services, and after a meeting between Mrs. Santacroce and several members of that agency, it was determined that Tina's placement would be reevaluated. On February 1, 1977, Mrs. Tinyk informed the Kearneys that because of a technical error by the state, Tina was going to be removed from their home the next day and returned to the foster parents.

On February 2, 1977, the Kearneys filed the instant complaint, seeking a temporary injunction restraining the state from interfering with the Kearneys' temporary custody of Tina, an award of temporary custody, and the appointment of an attorney to represent the interests of the minor child. The state filed a counterclaim seeking an injunction to restrain the Kearneys from interfering with the state's recovery of custody, and an award of temporary custody. The court granted the Santacroces' motion to intervene as party defendants. They filed two special defenses to the Kearneys' complaint, one of which alleged that the state's removal of Tina without prior notice of their right to a review or of their right to seek adoption violated the due process rights of both the Santacroces and the child. By way of counterclaim they sought a writ of habeas corpus "commanding said James T. Kearney and Alice A. Kearney to bring the child Tina before the court that the court may make such order concerning her custody as will best serve her welfare."

After a full hearing on the merits the court found the issues for the Kearneys, and rendered a judgment denying the writ of habeas corpus and ordering that custody remain with the Kearneys pending adoption. Only the intervening defendants, Robert and Nancy Santacroce, have appealed from that judgment. They claim error in the trial court's failure to find that their due process rights were violated, in its failure to appoint a guardian ad litem or attorney to represent the child, and in its conclusion on the habeas corpus petition that it was in the child's best interest that she remain with the Kearneys. At oral argument, however, counsel for the Santacroces conceded that the scope of the appeal was limited to the denial of the writ of habeas corpus. Thus, the only real issue presented by this appeal is whether the trial court abused its discretion in ordering that custody of Tina remain with the Kearneys pending adoption. Our holding on this issue is dispositive of the appeal.

" The use of habeas corpus to obtain custody was established at an early date in this state. When so used, the issue is not the illegality of the confinement, as is normally the case, but rather what is best for the child." 2 Stephenson, Conn.Civ.Proc. § 259, p. 1063 (1971); Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418 (1963); Pfeiffer v. Pfeiffer, 99 Conn. 154, 157, 121 A. 174 (1923). The burden of proving a change to be in the best interest of the child rests on the party seeking the change. Stephenson, supra, 1070; 39 Am.Jur.2d, Habeas Corpus, § 152 (1968). Although the judgment of the trial court "denies" the Santacroces' prayer for a...