In re Juvenile Appeal (83-AB)

454 A.2d 271, 189 Conn. 58, 1983 Conn. LEXIS 426

Opinion

Per Curiam.

Each of these appeals is from a judgment terminating parental rights pursuant to General Statutes § 17-43a. In each of docket numbers 10540, 10676 and 10753/10795, the judgment of the court contains no indication of the standard of proof applied by the trial judge in arriving at a decision;¹ we assume, therefore, that the trial court applied the civil standard of a fair preponderance of the evidence. Anonymous v. Norton, 168 Conn. 421, 424, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); see In re Appeal of Bailey, 158 Conn. 439, 443, 262 A.2d 177 (1969). In docket numbers 10663 and 11452, the trial court specifically applied the preponderance of the evidence standard of proof. Practice Book § 1049. By order of this court, all of these appeals were heard on the sole question of whether the cases should be reversed and remanded, for a new trial in light of the holding of the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

In Santosky v. Kramer, supra, the United States Supreme Court held that due process requires the state to prove the allegations in a petition to terminate parental rights by clear and convincing evidence before those rights could be terminated. In light of that decision, there is error in each of these cases, and a new trial² is required in which the clear and convincing evidence standard of proof is applied.

There is error, the judgments are set aside, and new trials are ordered.

1

In docket number 10540, no memorandum of decision is contained in the file.

In docket number 10753/10795, the case was referred to a state referee, Son. Thomas D. Gill, who found the allegations of neglect to be proven by clear and convincing evidence, and recommended that parental rights be terminated. The trial court heard additional •testimony before rendering a judgment. Its memorandum of decision accompanying that judgment does not indicate either whether the initial evidence taken alone would have supported the judgment or what standard the trial court used in weighing the additional testimony.

2

“Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective ease-by-ease review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.” Santosky v. Kramer, 455 U.S. 745, 757, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).