Preview:

****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** IN RE SHAQUANNA M. ET AL.* (AC 19704)
Foti, Schaller and Dupont, Js. Argued September 15, 2000--officially released February 6, 2001 Counsel

Barbara J. Ruhe, with whom, on the brief, were Jonathan W. A. Ruhe, and Jennifer L. Breuer, legal intern, for the appellant (respondent mother). Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).
Opinion

DUPONT, J. The primary issue of this appeal is whether the respondent mother, whose parental rights in her three sons were terminated,1 was denied procedural due process when the court denied her motion for a mistrial or a continuance. Her motion, made during the course of trial, was based on the death of the lawyer who the court had appointed as both attorney and guardian ad litem for her sons. The resolution of this issue necessarily requires an answer to the preliminary

question of whether the respondent has standing to claim such a denial of due process. At the hearing on her motion for a mistrial or a continuance, the respondent claimed a due process violation of her children's rights and of her own rights.2 The following facts and procedural history are relevant to this appeal. The petitioner, the commissioner of children and families (commissioner), filed termination of parental rights petitions in October, 1998. Those petitions followed the respondent's July, 1998 petitions for revocation of the commitment of her five children to the custody of the commissioner. The court consolidated for trial the commissioner's petitions to terminate parental rights and the respondent's petitions.3 All five of the respondent's children, including the three sons, A, T and F, who are involved in this appeal, have been in and out of home placement through the department of children and families (department) since 1995. The children have suffered violent and physically abusive behavior when in their own home and, in the case of T and A, in the foster home in which the department had placed them. The latter two children were both institutionalized for in-patient psychiatric treatment and, as of the date of oral argument, remain in a hospital for such treatment. The state-placed foster home was a ``chamber of horrors,'' worse than the parental home for the latter two of the respondent's sons. The trial of the termination of parental rights and revocation of the commitment to the commissioner began in November and extended into December, 1998. The court then continued the trial to January, 1999, and, during that interim, the individual serving as the lawyer and guardian ad litem for the respondent's sons died.4 The respondent moved for a mistrial or, alternatively, for a continuance5 to provide the newly appointed person acting as both attorney and guardian ad litem for her sons with transcripts of the five days of testimony that had occurred prior to January, 1999.6 A hearing was held on the respondent's motion. At the hearing on the motion for a continuance, the substitute attorney and guardian ad litem for the respondent's sons stated his position as follows: ``I have an obligation, I think, a legal professional obligation, to represent these children competently. It's difficult calculus in this case based on the information that I have. If I felt in doing the calculus, if I felt the need, it's a close call in my view. And in some technical sense I would have loved to have been able to read through the transcript, however, with all the other information I've been able to look at and the investigation I've done into the matter, I don't believe it would serve the best interest of these children to prolong the matter at all. I mean that's the bottom line for me. . . . I don't think it's absolutely essential that I review the trial transcripts up to this point to fulfill my obligation to represent

these children competently.'' The court denied the respondent's motion for a mistrial or a continuance, and she challenges that decision in her appeal from the judgments terminating her parental rights.7 The court found certain relevant facts that follow. From mid-1995, the respondent has maintained contact with the department and her children to the extent that the department has permitted. The court noted that ``in her own, perhaps misguided way, the mother has shown that she is very interested in her children,'' and that ``she is perhaps guilty of excessive contact with the children rather than insufficient contact.'' Accordingly, the court held that the evidence was not clear and convincing that the respondent had abandoned her children.8 In May, 1997, the department suspended the respondent's visitation rights with all of her sons. As of the date of the termination hearing, two of the children, T and A, were probably not adoptable. The third child, F, was still in the foster home in which the department had placed him in 1995. That foster mother would probably not adopt him, however, due to her age, although it was contemplated that he would remain with her for the foreseeable future.9 The court also found that F and the respondent have gotten along well and that the respondent has kept in contact with F. The court granted the petitions to terminate the respondent's parental rights as to all three children on the ground that for more than one year, she had failed to achieve personal rehabilitation and, as to T and A, on the additional ground that she had no ongoing parent-child relationship with them. I The petitioner claims that the respondent lacks standing to pursue a claim that the denial of her motion for a continuance violated due process. If standing does not exist, there is no subject matter jurisdiction, and we cannot review the respondent's claim. There are two kinds of standing, that arising from statutory aggrievement and that arising from classical aggrievement. Here, no statute gives the respondent the specific right to seek the remedy of a mistrial or a continuance because of the death of counsel or the guardian ad litem for her children. She claims classical aggrievement instead because she has a colorable claim of a direct injury that she is likely to suffer, which need not be great, but is an injury that is personal, and in which she is specially involved. See Connecticut Post Ltd. Partnership v. South Central Connecticut Regional Council of Governments, 60 Conn. App. 21, 27, 758 A.2d 408, cert. granted on other grounds, 255 Conn. 903, A.2d (2000). In other words, she claims aggrievement in the classical sense by the denial of her motion, which aggrievement is peculiar and personal

to her, and that she is entitled to appeal from the court's decision denying her motion. An individual establishes classical aggrievement if there is a possibility, not necessarily a certainty, that a legally protected interest is adversely affected. Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). The United States Supreme Court has recognized that ``freedom of personal choice in matters of family life is a fundamental liberty interest protected by the fourteenth amendment.'' Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (listing Supreme Court precedent recognizing fundamental nature of right). The state has, however, an interest in preserving and promoting the welfare of a child. Id., 766. These interests conflict in cases involving the termination of parental rights, and state interference with the relationship between a parent and child is justified only in specific instances. The state must act in accordance with procedural due process in any interference with that relationship; Lehrer v. Davis, 214 Conn. 232, 237, 571 A.2d 691 (1990); and must prove a termination of parental rights by clear and convincing evidence, rather than by the lesser burden of a fair preponderance of the evidence. The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. These legitimate interests of parent, child and state require a balancing of the factors involved in those interests. See id., 240. In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle. Troxel v. Granville, 530 U.S. , 120 S. Ct. 2054, 2071, 147 L. Ed. 2d 49 (2000) (Stevens, J., dissenting). It is difficult to separate the right to federal due process10 of the respondent from those of her children. She had a stake in the outcome of her motion for a continuance because whether the court granted it could affect the course of the trial and, ultimately, whether her rights as a parent would be terminated. At stake was the possible or probable direct injury to her of her right to retain her status as a mother. It is hard to understand how she could be more specially involved. The inadequate representation of her children by an attorney or guardian ad litem could, at the very least, colorably harm her. A colorable claim of direct injury to her that she may suffer or is likely to suffer gives her standing. Ramos v. Vernon, 254 Conn. 799, 809, 761 A.2d 705 (2000). Inadequate representation of her children in the capacity of guardian ad litem could particularly harm her because it is in that capacity that the best interests of her children must be determined.11 A mother has standing to challenge a ruling that involves

an alleged interference with her status as a parent. See id., 811; see also In re Elizabeth M., 232 Cal. App. 3d 553, 565, 283 Cal. Rptr. 483 (1991) (``father has standing to assert his child's right to independent counsel, because independent representation of the children's interests impacts upon the father's interest in the parent-child relationship''). We conclude that the respondent has standing to pursue her claim that her motion for a continuance should have been granted. II A Whether the denial of a continuance has been shown by the respondent to have interfered with her basic constitutional right to raise her children, thereby depriving her of procedural due process, is the issue of this case. Its resolution is a question of law for which our review is plenary. See State v. Reilly, 60 Conn. App. 716, 727, 760 A.2d 1001 (2000). The abuse of discretion standard ``does not apply to constitutional . . . claims, which are reviewed de novo by the courts.'' McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991). The issue is not whether the termination of the parental rights of the respondent in this case was in the best interests of the children, which issue will be resolved at some future time, but whether a continuance was necessary to ensure the respondent's right to due process. The due process rights of the fourteenth amendment to the United States constitution apply in proceedings brought by the state to terminate parental rights. In re Jessica B., 50 Conn. App. 554, 575, 718 A.2d 997 (1998). We first consider whether we should analyze the denial of the motion for a continuance in this case in terms of whether there was an abuse of discretion or in terms of whether there was a deprivation of constitutional due process. Some cases seem not to distinguish between the two analyses. See State v. Johnson, 253 Conn. 1, 31, 751 A.2d 298, reconsideration denied, 254 Conn. 909, 755 A.2d 880 (2000). Other cases determine whether the particular ruling is constitutionally defective, and, if the court concludes that the ruling was not infirm on that basis, then such cases consider whether there was an abuse of discretion. See State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985); State v. Cepeda, 51 Conn. App. 409, 418, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). In rare instances, an abuse of discretion may implicate due process rights. State v. DeMatteo, 186 Conn. 696, 704 n.3, 443 A.2d 915 (1982). The petitioner's brief analyzes the facts of this case both in terms of the standard of abuse of discretion and deprivation of due process, whereas the respondent's brief analyzes the case in terms of the latter only. A reviewing court ordinarily analyzes a denial of a

continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964); State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). This is so where the denial is not directly linked to a specific constitutional right. Anderson v. Sheppard, 856 F.2d 741, 749 (6th Cir. 1988) (abuse of discretion to deny continuance in civil case for plaintiff to obtain his third counsel where trial court was allegedly biased and hostile toward plaintiff); State v. Williams, 200 Conn. 310, 321, 511 A.2d 1000 (1986) (abuse of discretion to deny continuance of proceedings until after sentencing of coconspirator); Chaplin v. Balkus, 189 Conn. 445, 448

Download In re Shaquanna M..pdf

Connecticut Law