In re Shaquanna M.

61 Conn. App. 592

767 A.2d 155

IN RE SHAQUANNA M. ET AL.¹

(AC 19704)

Appellate Court of Connecticut.

Argued September 15, 2000.

Officially released February 6, 2001.

Foti, Schaller and Dupont, Js. 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,² 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.³

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.⁴ 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.⁵ The respondent moved for a mistrial or, alternatively, for a continuance⁶ 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, 1999.⁷ 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.⁸ 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.⁹ 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.¹⁰ 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, 762 A.2d 907 (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. 57, 86, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (Stevens, J., dissenting).

It is difficult to separate the right to federal due process¹¹ 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.¹² 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...