Donna M., In re

Page 795

637 A.2d 795

33 Conn.App. 632

In re Donna M. ^*

No. 12537.

Appellate Court of Connecticut.

Argued Dec. 13, 1993.

Decided Feb. 22, 1994.

Certifications Denied April 28, 1994.

Helen M. Doherty, Madison, for the appellant (respondent mother).

Maureen A. Chmielecki, Manchester, the appellee (petitioner), for the minor child.

Paul J. Bakulski, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and Susan T. Pearlman, Assistant Attorney General, for the appellee (department of children and families).

Matthew J. Collins, Manchester, for the appellee (respondent father).

Before FOTI, HEIMAN and SPEAR, JJ.

HEIMAN, Judge.

The respondent mother appeals from the judgment of the trial court adjudicating her child neglected and committing the child to the custody of the department of children and youth services (DCYS). ¹ On appeal, the respondent mother claims, in part, that the trial court improperly (1) overruled her objection to commencing trial before an amended petition was filed identifying alleged acts of misconduct committed by her, in light of the court's ruling that such amendment was to be allowed, (2) overruled her objection to commencing testimony relative to misconduct by her until the amended petition was filed, (3) allowed a mid-trial amendment to the neglect petition, (4) ordered a psychological evaluation of the parties and the minor child on April 21, 1992, and (5) denied her request for blood testing. We reverse, in part, the judgment of the trial court. ²

The trial court found the following facts. The respondent parents were married on February 29, 1988. One child, born June 21, 1989, was issue of the marriage. The marriage was terminated on February 13, 1991, after claims by the mother of family violence and sexual abuse by the husband. The divorce decree granted sole custody of the child to the mother subject to the father's reasonable rights of visitation.

On March 7, 1991, the mother claimed that the father had sexually abused the child during an unsupervised visit. The mother took the child to Kimberly Mailloux, a child advocate and certified sexual assault counselor employed by the Northeast Connecticut Sexual Assault Crisis Service, and Morton Glasser, a physician in general and family practice, for examination and evaluation. The police, DCYS and Martha Roberts, a counselor and clinician employed by United Services who became the child's therapist, were also notified. The father's visitation rights were modified to allow only supervised visitation until the end of January, 1992, when the father was allowed to resume unsupervised visits for a few hours a week.

On June 6, 1991, an attorney for the minor child filed a petition seeking a determination of neglect pursuant to General Statutes § 46b-129 ³ and requesting that the court take appropriate action. The petition was premised on an allegation that the father had sexually abused the child. DCYS filed a motion to amend the child's petition on December 13, 1991, to include allegations of neglect against the mother.

On February 21, 1992, after the first full day of the child's unsupervised visit with the father, the mother again reported that the father had sexually abused the child. The mother again took the child to Mailloux and Glasser for evaluation and examination, and the police and DCYS were informed. Again, the father's visitation rights were modified to supervised visitation only.

On April 21, 1992, the hearing commenced on the June 6, 1991 neglect petition. At that hearing, DCYS withdrew its motion to amend the petition and the child's attorney requested permission from the trial court to amend the neglect petition. The court granted the motion to amend and the child's attorney informed the court that the amended petition would be filed on April 23, 1992. The court then asked the child's attorney to call her first witness. The mother objected to the commencement of evidence prior to the filing of the amended petition. The trial court overruled the objection and commenced trial. The child's attorney did not file the amended petition on April 23, 1992.

On May 26, 1992, at the mother's request, her then prospective mother-in-law took the child to DCYS for the father's regularly scheduled visit. Diane Sinapi, a DCYS social worker, informed the prospective mother-in-law that the child would be released only to her mother after the visitation. The mother, at that time, had accompanied her fiance to Putnam Superior Court for proceedings concerning her fiance's marital status.

When the mother failed to come to the DCYS office to pick up the child before the office closed, Sinapi released the child to the father and the child's paternal grandmother. The grandmother drove to her home with the child. The grandmother's home was located approximately forty-five minutes from the DCYS office. About forty-five minutes after the grandmother had arrived at home, the mother retrieved the child. The mother immediately reported another instance of claimed sexual abuse by the father. Again, the child was brought to Mailloux and Glasser for evaluation and examination and the police and DCYS were notified.

On July 17, 1992, the attorney for the child filed an amended petition for a determination of neglect alleging that the child was neglected, abused, denied proper care and attention, permitted to live under conditions, circumstances or associations injurious to her well-being and was uncared for in that her home could not provide specialized care that her physical, emotional and mental condition required. The amended petition had matters stricken and a new amended petition was filed on July 21, 1992. The new petition was premised on allegations that the father had sexually abused the child, and, in the event that the allegations of sexual abuse by the father were not true, that the mother was abusing the child by intentionally or otherwise fabricating false claims of sexual abuse, thereby exposing the child to unnecessary and intrusive examinations. The mother objected to the amendment because the trial was in an advanced stage. The trial court overruled the objection and stated that Practice Book § 1029 (now § 1055.1 ⁴ allowed the amendment. Both parents were represented by counsel and entered denials of the petition.

On December 16, 1992, the trial court found that the mother's claims of sexual abuse by the father were untrue. The trial court further found that the acts of the mother were intentional in falsely reporting the sexual abuse thereby obstructing and interfering with the father's relationship with the child, and that those actions constituted neglect and abuse on the part of the mother. On the basis of those findings, the trial court ordered that the child be committed to DCYS for a period of eighteen months. The trial court further ordered that the father be instructed and counseled on parenting and that he receive progressively increased visitation with the child in the paternal grandmother's home. The trial court also ordered that the mother have supervised visitation rights of no more than two hours per week. The mother appeals from that judgment.

I

The mother claims that the trial court improperly (1) commenced trial prior to the filing of the amended petition identifying alleged misconduct on her part, in light of the court's ruling that such amendment was to be allowed, (2) permitted evidence relative to acts of her misconduct prior to the filing of the amended petition, and (3) allowed a midtrial amendment to the neglect petition. The mother asserts that the trial court violated her right to due process of law by failing to give her adequate notice of the claims directed against her. We agree.

"The State has a parens patriae interest in preserving and promoting the welfare of the child, Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388 [1401], 71 L.Ed.2d 599 (1982)...." (Internal quotation marks omitted.) In re Steven G., 210 Conn. 435, 440, 556 A.2d 131 (1989). We must, therefore, strike a balance between the informality and flexibility that characterize juvenile proceedings with the requirement of fundamental fairness demanded by due process. Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct 2403, 2409, 81 L.Ed.2d 207 (1984); Lehrer v. Davis, 214 Conn. 232, 240, 571 A.2d 691 (1990); In re Steven G., supra, 210 Conn. at 440-41, 556 A.2d 131. Due process requires notice that would be deemed constitutionally adequate in a civil or criminal proceeding. In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967). "Notice is not a perfunctory act in order to satisfy the technicalities of a statute, but has, as its basis, constitutional dimensions." In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992). "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity." (Internal quotation marks omitted.) In re Gault, supra; In re Steven G., supra, 210 Conn. at 441, 556 A.2d 131; In re Michael M., 29 Conn.App. 112, 119, 614 A.2d 832 (1992). The fact that the parties may have had knowledge that misconduct will be alleged against them does not excuse the requirement of actual adequate notice. In re Gault, supra, 387 U.S. at 34 n. 54, 87 S.Ct. at 1447 n. 54. The purpose of notice is to clarify the issues being considered. Id. ⁵

In compliance with the requirements of due process, our rules require that the neglect petition set forth with "reasonable particularity" specific allegations that have resulted in the neglect of the child. Practice Book § 1027(4) (now § 1040.1. ⁶ The rules also allow the trial court to permit amendments to the neglect petition during the trial. Practice Book § 1029. ⁷ Amendments to the petition, however, cannot be of such a nature as to...