Romance M., In re

• Citation: 641 A.2d 378,229 Conn. 345
• Decision Date: 19 April 1994
• Docket Number: Nos. 14804,14878,s. 14804
• Court: Supreme Court of Connecticut
• Parties: In re ROMANCE M. *

Page 378

641 A.2d 378

229 Conn. 345

In re ROMANCE M. ^*

Nos. 14804, 14878.

Supreme Court of Connecticut.

Argued March 29, 1994.

Decided April 19, 1994. ^**

[229 Conn. 347] Benjamin Zivyon, Asst. Atty. Gen., with whom were Dennis Antonacci, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Susan T. Pearlman, Asst. Atty. Gen., for appellant in the first case, appellee in the second case (petitioner Com'r of Children and Youth Services).

Kathleen M. Harkins, Mystic, with whom, on the brief, was Ronald E. Sobieraj, New London, for appellee in the first case, and Valerie Alexander, Waterford, with whom was William R. Kinloch, Waterbury, for appellant in the second case (respondent mother).

Barbara J. Claire, New London, filed an appearance for the minor child.

Before [229 Conn. 345] PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

[229 Conn. 347] PETERS, Chief Justice.

The principal issue underlying these two appeals is the propriety of terminating the parental rights of a mother who has been unsuccessful in coping with problems arising out of her personality disorder and her substance abuse. The appeals arise out of successive petitions brought by the petitioner, the commissioner of the department of children and youth services (commissioner), to terminate the parental rights of the respondent, Gail M. (mother), with respect to her young son, Romance M. ¹

Romance was born on November 11, 1988, and was placed in foster care the following month. On January 5, 1989, the commissioner filed coterminous petitions, pursuant to General Statutes (Rev. to 1993) § 17a-112(e), ² for commitment of Romance to the [229 Conn. 348] department of children and youth services and for termination of the mother's parental rights. The ground alleged in the termination petition was that "the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being." General Statutes § 17a-112(b)(3).

The termination petition noted that the reason alleged for termination had existed for less than one year; see General Statutes § 17a-112(b); ³ but asked the court to waive

the one year requirement in the best interest of the child. More than one year later, during the hearing on the coterminous petitions, the commissioner obtained the permission of the trial court to file an amended petition that alleged additional facts in support of the termination petition. The trial court, Axelrod, J., granted the commitment petition but refused to waive the one year provision and therefore denied the termination petition. On appeal, the Appellate [229 Conn. 349] Court affirmed the judgment of the trial court. In re Romance M., 30 Conn.App. 839, 860, 622 A.2d 1047 (1993). We granted the commissioner's petition for certification to appeal from the judgment of the Appellate Court with respect to the applicability of the one year requirement in light of the date of the amended petition. This is Supreme Court Docket No. 14804

During the pendency of the appeal to the Appellate Court, the commissioner filed a second petition ⁴ to terminate the mother's parental rights. This petition was grounded on the mother's failure to rehabilitate herself subsequent to the finding of neglect. General Statutes (Rev. to 1993) § 17a-112(b)(2). ⁵ The trial court, Silbert, J., rendered a judgment granting the petition. ⁶ The mother appealed from the judgment of the trial court to the Appellate Court, and we transferred the [229 Conn. 350] appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). This is Supreme Court Docket No. 14878.

Because the mother's appeal directly challenges a fact finder's determination that her parental rights should be terminated, the cause of justice will be served by resolving first the merits of her appeal. We conclude that the judgment in Docket No. 14878 must be affirmed. That affirmance leads us to dismiss the petition for certification in Docket No. 14804 as having been improvidently granted.

THE DIRECT APPEAL

In her appeal from the judgment rendered by Judge Silbert terminating her parental rights with respect to Romance, the mother has raised three issues. She maintains that the judgment terminating her parental rights should be set aside because the trial court improperly: (1) waived the one year requirement of § 17a-112(b); (2) found that she had failed to rehabilitate herself as rehabilitation is defined by § 17a-112(b)(2); and (3) found that termination was in the best interest of the child. General Statutes § 17a-112(d). We are unpersuaded.

The mother claims first that the petition to terminate on the ground of § 17a-112(b)(2) was premature because the petition was filed less than one year after the adjudication of Romance as a neglected and uncared for child. Although § 17a-112(c) ⁷ authorizes the trial court to waive this one year period, the mother claims that such a waiver was improper in her case.

The procedural history of this petition to terminate is as follows. In an order dated July 15, 1991, the trial court, Axelrod, J., found that Romance was a neglected and uncared for child, and accordingly committed him to the custody and guardianship of the commissioner. The mother's appeal to the Appellate Court did not challenge the validity of this order. In re Romance M., supra, 30 Conn.App. 839, 622 A.2d 1047. On September 10, 1991, the trial court, Teller, J., granted the commissioner's motion to set expectations for the mother's conduct to rehabilitate herself. Concluding that the mother had not met these expectations, the commissioner filed a petition to terminate the mother's rights on February 18, 1992. The petition was subsequently amended on May 29, 1992.

Section 17a-112(b)(2) requires the commissioner to prove that a parent "of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding ha[s] failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, [she] could assume a responsible position in the life of the child." The mother maintains that the commissioner cannot establish this ground for termination without also complying with the requirement, stated in the preamble to § 17a-112(b), that any ground for termination shall have existed "over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year...." From this premise, the mother argues that the trial court could not have granted the petition without waiving the one year requirement. The mother urges us to conclude that the trial court lacked an evidentiary foundation for its implied determination that such a waiver was appropriate.

This issue was not presented to the trial court. In the termination petition, the commissioner alleged that the reasons for termination had existed for "not less than one year." Although represented by counsel, the mother did not contest this allegation. The mother's defense against the termination petition challenged the underlying facts adduced by the commissioner but raised no question, either during the proceedings or in posttrial briefs, about the applicability of the one year rule to this case. Accordingly, the trial court, in its memorandum of decision, did not address the propriety of a waiver under § 17a-112(c). ⁸ The mother filed no motion for articulation in the trial court to rectify this omission. See Practice Book § 4051; Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993); Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992).

Under Practice Book § 4185, this court "shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial." We recognize that a mother has a fundamental constitutional right to retain her relationship with her child and that this right can only be severed in strict compliance with applicable statutory standards. In re Baby Girl B., 224 Conn. 263, 279-81, 618 A.2d 1 (1992); In re Jessica M., 217 Conn. 459, 464-66, 586 A.2d 597 (1991). Nonetheless, we have regularly observed that the rule of § 4185 "applies to constitutional claims.... [O]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.... Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial.... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties." (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992). The mother has pointed us to no such exceptional circumstances in the present case. Accordingly, we decline to review the merits of this claim.

The mother's second claim on appeal is that the trial court improperly found that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable period of time, she could assume a responsible position with respect to the care of Romance. General Statutes § 17a-112(b)(2). Without citing any particular evidence in the record, the mother maintains that, by the time of trial, she had made considerable progress in rehabilitating herself. ⁹ In essence, this claim is a challenge to the sufficiency of the evidence at trial to support the trial court's adjudicatory determination that the commissioner had proved, by clear and convincing evidence, this ground for termination of the mother's parental rights. We disagree...