noting that, “[i]n administering [the legislature’s] policy [to protect children under General Statutes § 17-38a (a
How later courts described this case
- noting that, “[i]n administering [the legislature’s] policy [to protect children under General Statutes § 17-38a (a
- noting that it is both a fundamental right and the policy of this state to maintain the integrity of the family
- holding that temporary custody is not warranted where there is only subjective suspicion of child abuse and no evidence of immediate risk of danger to the children
- concluding that due process requires state to prove by preponderance of evidence that temporary placement should continue
Written by the judges who cited it.
The opinion
Shea, J.
(concurring). I agree with the result and with the essential holdings of the court (1) that the trial court applied an incorreet standard of proof (“probable cause”) and (2) that the proper standard for temporary orders of custody under General Statutes § 46b-129 (b) is preponderance of the evidence.
I disagree with the holding “that [General Statutes] § 46b-129 (b) is constitutional because it must be read together with [General Statutes] § 17-38a which contains adequate criteria for determining whether temporary custody of children may be taken from the parent by court order.” Section 46b-129 (b) itself contains a constitutionally sufficient standard for state intervention: “that the child’s or youth’s condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare.” Of course, it is only where a petition for commitment of a child as “neglected, uncared-for, or dependent, within the meaning of § 46b-120” has been brought in accordance with General Statutes § 46b-129 (a) that a temporary custody order may be issued under § 46b-129 (b). The reference in § 46b-129 (b) to “the child’s or youth’s condition or the circumstances surrounding his care” clearly pertains to the facts necessary for a finding that a child or youth is “neglected, uncared for or dependent” as those terms are defined in § 46b-120. 1 It is only where the circumstances, which would establish the *302 existence of one of these statutory grounds for commitment, indicate by a fair preponderance of the evidence that the custody of the child must be immediately assumed in order to safeguard his welfare that such a temporary transfer of custody may be ordered. The difference between the standard expressed in § 46b-129 (b) and that in § 17-38a (e) (“that the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child’s safety”) is that the latter focuses exclusively on physical danger while the former is broad enough to include other situations involving serious harm to a child, such as where a parent is using a child for the purpose of prostitution, obscene photographs, or other kinds of degrading exploitation. Immediate intervention by the state is as much warranted in those circumstances as where there is physical abuse or the threat of it. I do not believe that the wider scope of the standard expressed in $ 46b-129 (b) as compared to § 17-38a jeopardizes its constitutionality in any way.
There is nothing in the legislative history of § 17-38a and ^ 46b-129 (b) which indicates that the legislature intended to have the former read into the latter. Section 46b-129 (b) antedated § 17-38a by many years. Public Acts 1933, No. 225 (2). I see *303 no reason to narrow the scope of § 46b-129 (b) so that it will apply only to physical danger to a child when ordinary rules of construction indicate that the legislature intended no such restriction.
General Statutes § 46b-120 defines the terms “neglected,” “uneared for,” and “dependent” as follows:
“[A] child or youth may be found 'neglected’ who (i) has been abandoned or (ii) is being denied proper care and attention, physically, educationally, emotionally or morally or (iii) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (iv) has been abused ....
*302 "[A] child or youth may be found 'uncared for’ who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires.
“[A] ehild or youth may be found 'dependent' whose home is a suitable one for him, save for the financial inability of his parents, parent, guardian or other person maintaining such home, to provide the specialized care his condition requires.”