State v. Anonymous

• Decision Date: 18 September 1979
• Citation: 425 A.2d 939,179 Conn. 155
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. ANONYMOUS * .

Page 939

425 A.2d 939

179 Conn. 155

STATE of Connecticut v. ANONYMOUS ^*.

Supreme Court of Connecticut.

Argued June 13, 1979.

Decided Sept. 18, 1979.

James E. Bransfield, Hartford, with whom was Sue Ann Shay, Hartford, for appellant (defendant).

Patricia Pac, Asst. Atty. Gen., with whom were Paul M. Shapiro, Asst. Atty. Gen., and, on brief, Carl R. Ajello, Atty. Gen., for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

This is an appeal filed by the defendant mother (hereinafter the defendant) from a decision of the Superior Court granting simultaneous petitions of neglect and termination of parental rights filed pursuant to General Statutes § 17-43a(b) by the commissioner of children and youth services. The defendant has appealed from only the decision to terminate her parental rights. The following facts were found by the trial court. The child in question was born on January 5, 1977. The defendant was hospitalized for three weeks after the child was born. The baby was taken from the hospital after birth by her maternal grandmother. From the time of her discharge to the time the petitions for neglect and termination of parental rights were filed the defendant refused to take the child into her care. She repeatedly refused assistance which would have enabled her to care for her child. Her main reasons for refusing to take the child were ill health and insufficient space in her apartment. She consistently failed, however, to keep medical appointments, to take the prescribed medication regularly or to accept psychiatric help to improve and stabilize her health. The defendant was never told that her medical condition would not permit her to take care of her child. Her apartment had adequate space.

By the time the child was five months old she had been in four different homes, had had four different caretakers and had been hospitalized once. Two of the placements had been with foster parents who were complete strangers to the defendant. The child was placed in the second foster home in June, 1977. Between that date and the termination hearing in August of 1978, the defendant visited the child no more than four times. On the basis of the above evidence, the court concluded that the child was "neglected by reason of abandonment." The defendant's parental rights were terminated because she failed to provide the care, guidance and control necessary for the child's physical, emotional, educational and moral well-being.

I

On appeal, the defendant does not contest the merits, but raises four constitutional claims. Her first claim of error is that she was denied the effective assistance of counsel. As a threshold matter, the plaintiff contends that the defendant is precluded from raising the issue of incompetency of counsel because she did not include it in her assignment of errors. This court is not "bound" to, and ordinarily will not, consider any claims of error unless they are assigned specifically and distinctly. Practice Book, 1978, § 3063; Gould v. Rosenfeld, 178 Conn. 503, 505, 423 A.2d 146 (1979); American Brass Co. v. Ansonia Brass Workers' Union, 140 Conn. 457, 463, 101 A.2d 291 (1953); Putterman v. Miller, 133 Conn. 70, 73, 48 A.2d 235 (1946); Maltbie, Conn.App.Proc. § 167. This court may, however, consider claims not properly assigned and will sometimes examine them so as to see that no substantial injustice has been done. State v. Hayes, 127 Conn. 543, 595, 18 A.2d 895 (1941). The defendant, while neglecting to assign ineffective assistance of counsel as an error, did delineate it as an issue in her "Request for Finding." She briefed the issue. The plaintiff addressed the issue extensively in its brief. Once alerted, the defendant filed an amended assignment of errors. Practice Book, 1978, § 3035. Since the amendment was filed before oral argument and since the plaintiff thoroughly briefed the issue in question, we will address it.

The issue of ineffective assistance of counsel at a termination of parental rights hearing is one of first impression for this court. The right to effective assistance of counsel enunciated in McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), which the defendant urges us to adopt, is grounded in the sixth amendment to the United States constitution, which is expressly limited to a defendant in a criminal action. ¹ Article first, § 8, of the Connecticut constitution similarly limits the right to counsel to criminal defendants. ² Neither the sixth amendment to the United States constitution nor article first, § 8 of the Connecticut constitution can be extended to a parent in a termination of parental rights hearing to provide a right to effective assistance of counsel. In re Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974). Where, however, as here, a statute (General Statutes § 46b-136) or practice book rule (Practice Book, 1978, § 1045) mandates the assistance of counsel, it is implicit that this means competent counsel. Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel. For this unique situation, we adopt the standard we enunciated in Buckley v. Warden, 177 Conn. 538, 543, 418 A.2d 913 (1979): "The range of competence ... requires not errorless counsel, and not counsel judged ineffective by hindsight, but 'counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in (that particular area of the) law.' State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108, 1109 (1977); State v. McClain, 171 Conn. 293, 301, 370 A.2d 928 (1976)." The defendant must, moreover, demonstrate that the lack of competency contributed to the termination of parental rights. State v. Clark, 170 Conn. 273, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).

The defendant in her brief has composed a laundry list of acts of omission and commission committed by trial counsel. Practice Book, 1978, § 3020, which governs this appeal, requires a finding "(i)f the error claimed is in rulings upon the admission or rejection of evidence or other rulings in the course of the trial ...." See Lomas & Nettleton Co. v. Cadoux, 163 Conn. 603, 604, 316 A.2d 413 (1972); Socony Mobil Oil Co. v. Zoning Board of Appeals, 153 Conn. 257, 261, 216 A.2d 201 (1965). We cannot review the defendant's claims as to her trial counsel's failure to object to the admission of the medical report, his failure to challenge the qualifications of the state's chief witness, his failure to object to certain testimony and his failure to call certain critical witnesses since there are no factual findings upon which we can make a determination. State v. Anderson, 178 Conn. 287, 290-91, 422 A.2d 323 (1979).

The defendant claims that, since the petition did nothing more than track the language of the statute, trial counsel should have filed a motion to dismiss or a motion to review. This allegation is reviewable without a finding because it appears on the face of the record. Practice Book, 1978, § 3020; City Savings Bank v. Lawler, 163 Conn. 149, 152, 302 A.2d 252 (1972). Practice Book, 1978, § 1049, states that the petition for termination of parental rights shall allege the particular section of the statute upon which the action is predicated and "shall set forth with reasonable particularity the facts, circumstances, or conditions in support of the application...." The record indicates that the petition for termination contained the particular section of the statute, but there were no references to particular acts or omissions on the part of the defendant. The addendum to the neglect petition, however, which was filed and served on the same day as the termination proceedings contained sufficient factual background to give the defendant notice of the acts or omissions complained of. Moreover, the record indicates that the defendant was sufficiently apprised to prepare her defense. Trial counsel's failure to make merely pro forma motions to correct or dismiss without a showing of resulting prejudice to the defendant does not amount to ineffective assistance of counsel.

II

The defendant attacks the portion of General Statutes § 45-61f ³ under which her parental rights were terminated as unconstitutional on due process grounds. Her attack is hydra-headed. She contends that § 45-61f(2) violates her due process rights because (1) it is vague; (2) it impermissibly delegates unfettered discretion to state officials; (3) it contains no standard of proof; and (4) it is biased against indigent persons.

"The extent to which procedural due process must be afforded ... is influenced by the extent to which (an individual) may be 'condemned to suffer grievous loss.' " Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970). Thus, the initial inquiry must focus upon the interest which the defendant seeks to protect the integrity of her family.

The right to the integrity of the family is among the most fundamental rights guaranteed by the fourteenth amendment. ⁴ In Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), the United States Supreme Court stated: "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply not hinder.... And it is in recognition of this that (our previous decisions) have respected the private realm of family life which the state cannot enter." More recently, the court held in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), that a conclusive presumption that unwed fathers are unfit to have custody of their children violated the fourteenth amendment. In defining the...