In re Eden F.

BERDON, J.,

dissenting. I agree with now Chief Justice McDonald’s well reasoned dissent regarding the termination of the parental rights of the respondent mother, Ann F., with respect to her two daughters, Eden F. and Joann F. Indeed, this is one of those cases where the split decision of the court, carried by a bare majority of a five justice panel, is so outrageous and heartbreaking that Ann F.’s motion to reargue en banc 1 prompted the filing of three applications for permission to appear as amici curiae and file briefs in support of Ann F.’s motion to reargue before a full court of seven justices and also to file briefs on the merits in support of Ann F., had her motion to reargue been granted. Those applications were filed by the state office of protection and advocacy for persons with disabilities, 2 Connecticut Legal Services, Inc., 3 and the Connecticut Legal Rights Projects, Inc., together with the Mental Health Association of Connecticut, Inc., Connecticut Protection and Advocacy for Individuals with Mental Illness Advisory Council, Advocacy Unlimited, Inc., and *720C the Connecticut Consortium of Women and Children with Behavioral Needs. 4

The critical issue in this three to two decision was whether the state was required to prove, by clear and convincing evidence, that the commissioner of children and youth services, now the commissioner of children and families (commissioner), made reasonable efforts to reunite Ann F. with Eden F. and Joann F., as the Appellate Court unanimously ruled in its well reasoned opinion in In re Eden F., 48 Conn. App. 290 , 710 A.2d 771 (1998). I join Chief Justice McDonald in his dissent because, in my view and contrary to the majority, General Statutes (Rev. to 1995) § 17a-112 requires that the commissioner must prove by clear and convincing evidence that termination is in the child’s best interest and that the commissioner made reasonable efforts to reunite the family.

*720D Furthermore, both the federal and state constitutions require that the state provide sufficient due process protection before terminating parental rights. “The standard of proof applicable to a proceeding for the termination of parental rights is that of ‘clear and convincing evidence.’ Santosky v. Kramer, [ 455 U.S. 745, 748 , 102 S. Ct. 1388 , 71 L. Ed. 2d 599 (1982)]. The Santosky court said, ‘We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.’ Id., 769 .” In re Eden F., supra, 48 Conn. App. 308 . Indeed, this court recognized “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 re Juvenile Appeal (83-AB), 189 Conn. 58, 60 , 454 A.2d 271 (1983).

Nevertheless, under the facts of this case, as pointed out by Chief Justice McDonald in his dissent, it is clear that the commissioner failed even to demonstrate by a preponderance of the evidence that he made reasonable efforts to reunite the family. Not only does this violate the constitutional rights of Ann F. and her children, it flies in the face of a 1995 amendment 5 to § 17a-112, which statutorily reinforces these constitutional rights. The majority waltzes around this amendment by concluding, in a hypertechnical ruling, that because the amendment was adopted subsequent to the filing of the petition for termination, it was not applicable. Although it is correct that the amendment did not become effective until after the petition was filed, it was effective *721 at the time of the hearing on the petition and was ignored by the trial court.

In affirming by only one vote the trial court’s decision to terminate Ann F.’s parental rights with respect to her two children and by refusing to allow for reargument before an en banc court, this court not only demonstrates a lack of sensitivity, but also ignores the fundamental constitutional right of the family to be free from government interference. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need of procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, supra, 455 U.S. 753 -54.

It seems incredible to me that the majority of this court would reverse a unanimous Appellate Court panel and let stand a three to two decision of this court involving such a sensitive matter that implicates fundamental constitutional rights of the family without ordering reargument before an en banc court. It is because of this seeming indifference that I remind the majority of this court of the sanctity of the parent-child relationship and that the state is required, by the constitution and by statute, to prove that every effort was made to support the reunification of a parent and her children before terminating their relationship.

Accordingly, I dissent.

This dissent was filed subsequent to the denial of the motion to reargue.

The state office of protection and advocacy for persons with disabilities advocates for the rights of persons with disabilities. The agency is concerned that, first, the court’s decision negatively impacts upon the rights of disabled parents to raise their children by allowing for the termination of parental rights based upon the parents’ disability status. This is contrary to the legislature’s intent that the state provide services to reunify and strengthen families regardless of parents’ disability. Second, the majority’s decision affects the rights of children with disabilities to remain with their families. The state’s removal of the disabled child in this case, given the familial relationship and the difficulties in arranging adoptions for disabled children, is not in the child’s best interest. Finally, the majority’s decision fails to recognize that parents and children with disabilities constitute a protected class under both federal and state civil rights laws. The agency argues, however, that the Appellate Court’s decision is not narrowly tailored to serve the state’s compelling interest in protecting children. Furthermore, the state’s efforts to reunify the family did not offer equal protection to the disabled parent and child in this case.

Connecticut Legal Services, Inc., which represents indigent parents with disabilities, raises concerns about the rights of disabled parents in the termination of parental rights cases.

Those various Connecticut nonprofit organizations advocate on behalf of persons with mental health disabilities. Their concern is that the majority’s decision interferes with the rights of disabled parents to maintain or reestablish their familial relationships. This, they argue, violates various federal and state civil rights laws that protect the rights of the family and the disabled. They critique the majority’s focus on whether the amendment to General Statutes (Rev. to 1995) § 17a-112; see Public Acts 1995, No. 95-238, § 3; was substantive or procedural. Furthermore, they assert, given the fundamental rights of the respondent mother and her children to maintain their familial relationship, the court should have applied the Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976), test to ascertain if there was sufficient procedural due process protection. Under the Mathews test, (1) the right to parent is fundamental, (2) there is a risk of erroneously depriving the parent and children of the familial relationship, and (3) the state’s interest in preserving families is more important than the state’s burden of providing additional due process protections. There is insufficient evidence, these agencies argue, that the state made reasonable efforts to reunify Ann F. and her children before terminating her parental rights. In addition, the state’s treatment of the disabled mother may implicate federal and state civil rights laws. Finally, these agencies point out that the state did not protect the rights of the children to maintain their familial relationships. In particular, the state did not act in the best interest of the disabled child, Eden, given the existing parent-child relationship and the potential difficulties of finding adoptive parents.

Public Acts 1995, No. 95-238, § 3, provides in relevant part: “Section 17a-112 of the general statutes is repealed and the following is substituted in lieu thereof . . .

“(b) The superior court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant such petition [to terminate parental rights] if it finds that theDepartment of Children and Families has made reasonable efforts to reunify the child with the parent . . . .” (Emphasis added.)