In re Juvenile Appeal (85-2)

485 A.2d 1362, 3 Conn. App. 184, 1985 Conn. App. LEXIS 832
CourtConnecticut Appellate Court
DecidedJanuary 22, 1985
Docket2092
StatusPublished
Cited by23 cases

This text of 485 A.2d 1362 (In re Juvenile Appeal (85-2)) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Juvenile Appeal (85-2), 485 A.2d 1362, 3 Conn. App. 184, 1985 Conn. App. LEXIS 832 (Colo. Ct. App. 1985).

Opinion

Spallone, J.

This is an appeal* 1 from a decision terminating the respondent mother’s parental rights to her two children pursuant to petitions filed by the children’s paternal aunt in accordance with General Statutes § 45-611

The record reveals the following facts: In early October, 1980, the mother and father of the children telephoned the petitioner from Texas and asked her to take the children. The parents feared that the children would be institutionalized following the imminent arrest of the father. The children were flown to Connecticut at the expense of the petitioner. They brought with them a power of attorney executed by both parents, giving the aunt and the paternal grandparents authority to provide for their “health, welfare and safety as well as [their] education, maintenance and support.” At the time of their arrival, the daughter had not yet turned five, and the son was three. The petitioner did not learn until later that the father’s impending incarceration was for the sexual abuse of his daughter.2

Upon their arrival in Connecticut, the children appeared and behaved strangely. The petitioner testified that their skin was white and transparent-looking, that the son was “covered with bug-bites, head to toe,” [186]*186and that both children ate voraciously with their hands, hoarded food in drawers and among their bedclothes, attempted to eat inedibles such as styrofoam cups, and appeared unfamiliar with the items of a normal child’s diet. The children lacked age-appropriate motor coordination and neither was toilet trained. Both were sexually precocious. The three year old son exhibited a knowledge of profane four-letter words and gestures. He explicitly described and reenacted experiences of sodomization by his father and was observed in sex play with his sister. Neither child ever asked or cried for either parent. The petitioner also testified that the mother telephoned the petitioner only once, two months after the children arrived in Connecticut. When she called, she did not ask about the children except to state that she had no money, could not then care for them, and that she did not want her daughter to be sexually abused by her husband.

In November, 1980, the petitioner initiated proceedings to terminate the rights of the mother and father on the basis of the parents’ signed consent. Upon learning of the full effect of termination of their parental rights, however, both parents retracted their consents. The petitioner subsequently amended her petition for termination to include as additional grounds that the children had been abandoned by their parents and that they had been denied, by reason of acts of parental commission or omission, the care, guidance or control necessary for their physical, educational, moral and emotional well-being. After a trial to the court, judgment was rendered for the petitioner on the latter ground.3 The mother now appeals from that judgment.

[187]*187On appeal, the mother questions the procedure and evidence upon which the decision to terminate her parental rights was based. She claims that the trial court erred by denying her a continuance, in admitting out-of-court statements by her and the children and in admitting a report of an out-of-state social agency, and in finding that the petitions had been proven by clear and convincing evidence.

I

In order to address the respondent’s first claim of error, the lengthy sequence of events which led to the denial of the continuance need not be set forth in detail. Suffice it to say that from the initiation of these proceedings in November, 1980, until the date of trial on December 22, 1982, this matter was continued numerous times. When trial dates of December 22, 1982, and December 23, 1982, were ultimately scheduled, notice of those dates was mailed to the parties by the clerk of the trial court on November 4, 1982, and November 15,1982. On December 20,1982, the respondent filed a request for a continuance on the ground that she could not leave her place of employment. The trial court denied the motion “[i]n view of the long pendency of this case, the well-documented notices that were sent of these December trial dates, and the nature of the reason given for seeking the continuance.” The matter proceeded to trial as scheduled, and the court found the issues for the petitioner.

The respondent argues that the trial court’s refusal to grant her the continuance she requested on December 20,1982, was a denial of due process. Essentially, she contends that her due process rights should have [188]*188been determined by the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), that the trial court did not apply the procedural safeguards established in that case, and that through its “laxity,” she was denied any means to effectively safeguard her interest in her children.

Mathews v. Eldridge, supra, which concerned a parent’s right to be represented by counsel in termination proceedings, mandated that three factors be considered in a termination proceeding: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 335, quoted in In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 436, 446 A.2d 808 (1982). The respondent focuses upon the second factor of the Mathews test and directs this court’s attention to In re Juvenile Appeal (Docket No. 10155), supra, as an example of a termination of parental rights case which utilized an appropriate procedure to minimize risk of error and safeguard an absent parent’s interest. The respondent father in In re Juvenile Appeal (Docket No. 10155), supra, was incarcerated in California at the time of trial and requested a continuance until his release from prison. The trial court denied his request but allowed him to testify and be cross-examined by long-distance telephone, and to review and discuss with his attorney the transcript of the first day of hearings before the second session was held. In his appeal from the trial court’s decision terminating his parental rights, the father raised as a ground of error the denial of his request for a continuance. The Supreme Court found that the trial court’s [189]*189unusual arrangements to secure the father’s participation so reduced the risk of error created by his absence that the balancing test of Mathews v. Eldridge, supra, did not support his due process claims.

The case before us is markedly different from In re Juvenile Appeal (Docket No. 10155), supra, and that case cannot serve as a procedural model for this one. Here, the respondent’s absence from trial was within her power to remedy. The record discloses that she was notified by her attorney of the trial dates on November 11,1982, but delayed informing him of her inability to attend until over a month later.

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Bluebook (online)
485 A.2d 1362, 3 Conn. App. 184, 1985 Conn. App. LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-juvenile-appeal-85-2-connappct-1985.