Taff v. Bettcher

Page 875

646 A.2d 875

35 Conn.App. 421

William TAFF v. Jayma BETTCHER.

No. 12875.

Appellate Court of Connecticut.

Argued June 2, 1994.

Decided Aug. 16, 1994.

[35 Conn.App. 422] Michael J. Mannion, for appellant (defendant).

Carlo Forzani, with whom, on the brief, was Lori Loucks, for appellee (plaintiff).

M. Katherine Webster-O'Keefe, with whom, on the brief, was Barbara W. Reynolds, for minor child.

Before FOTI, LANDAU and SCHALLER, JJ.

LANDAU, Judge.

The defendant appeals from the decision of the trial court granting the plaintiff's motion to modify the pendente lite order of custody of the parties' minor child. The defendant claims that the trial court improperly conducted a hearing on the plaintiff's motion to modify custody (1) without the minor child's court-appointed counsel present, and (2) without providing the defendant reasonable notice in violation of her due process rights.

The following facts are relevant to this appeal. This action was commenced, by writ and complaint filed on March 26, 1992, to settle a custody dispute concerning the parties' minor son. On April 2, 1992, the trial court entered pendente lite orders on a stipulation of the parties providing for joint legal custody and shared care. The defendant would provide care on weekdays except Wednesdays from 8:30 a.m. to 5:30 p.m., and on Wednesdays until 2:30 p.m., and the plaintiff would provide care from 5:30 p.m. to 8:30 a.m., and on Wednesdays from 2:30 p.m. The parties were to arrange agreeable weekend schedules.

On August 27, 1993, the plaintiff filed an application requesting, inter alia, temporary custody and modification of the visitation schedule. The plaintiff's motion for modification alleged that the mother displayed explosive, irrational behavior, and subjected her minor child to emotional abuse. The plaintiff's counsel, accompanied by the court-appointed counsel representing the minor child, appeared before the court, and the court declined to order the requested relief because the defendant's attorney was not present. The court then scheduled the matter for a hearing to be held on August 30, 1993. The counsel for the minor child advised the court that she would be unable to attend that hearing, but, given the circumstances surrounding the requests, she felt that the hearing should take place as soon as possible even if that meant proceeding without her. The counsel for the minor child confirmed in a letter to the family relations office her position in this matter. The trial court was in possession of the letter prior to commencement of the hearing.

The court, aware that the attorney for the minor child was not available, ¹ heard the application from August 31 through September 2, 1993. The court found that the defendant mother posed a risk to the child's welfare and entered a temporary order modifying the existing custody and visitation order. The plaintiff was designated the primary residential parent and the defendant would be allowed visitation Monday through Saturday from 8:30 a.m. to 1 p.m. The defendant filed this appeal.

I

The defendant first claims that the trial court improperly conducted the hearing to modify custody and visitation without counsel for the minor child present. The defendant advances the argument that the trial court prevented counsel for the minor child from fulfilling her statutory and ethical obligations to her client by refusing to continue the hearing to a date when counsel would be available. In this argument, the defendant asserts the due process rights of her minor child.

As a threshold matter, we note that the dispositive issue is not whether the trial court should have proceeded with the modification hearing without the child's counsel present, but, rather, whether a parent, in the course of a contested custody-visitation proceeding in which counsel for the minor child has been appointed, can assert her child's right to have counsel present at the hearing. We hold that she cannot.

The defendant asserts two arguments addressing her standing to appeal ² from the trial court's decision to conduct the visitation hearing without the presence of the minor child's counsel. First, she claims that as a party to the visitation hearing she can assert the rights of her child to have counsel present. Second, she argues that, by virtue of her parental supervisory responsibilities, she can require that counsel be present to represent the best interest of her child.

A STATUTORY CLAIM

The defendant offers no case law authority for her first proposition. She contends that the common law of this state is that a minor child is non sui juris, represented only by a next friend, typically a parent. She further asserts that as a parent, the welfare of the child is her duty which is not abdicated because the court, in its discretion, has appointed counsel to represent the child's best interests.

"The issue of standing implicates the court's subject matter jurisdiction. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984). Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard. Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn.App. 297, 300, 605 A.2d 885 (1992).... The question of standing does not involve an inquiry into the merits of the case." Appeal from Probate by Bencivenga, 30 Conn.App. 334, 337, 620 A.2d 195 (1993). It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by the statute or common law. Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); Appeal from Probate by Bencivenga, supra, 30 Conn.App. at 337, 620 A.2d 195.

We know of no statute that gives the defendant mother the legal right to demand that the child's court-appointed counsel be present at a custody-visitation hearing. General Statutes § 46b-54 gives the court the discretion to appoint counsel to represent the child; it does not confer any authority or legal interest on a parent. ³

Our case law is also clear that a person cannot gain standing by asserting the due process rights possessed by another individual. "It is axiomatic that due process rights are personal, and cannot be asserted vicariously. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); see Silverman v. St. Joseph's Hospital, 168 Conn. 160, 175-77, 363 A.2d 22 (1975)." Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn.App. 432, 449, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986); Red Hill Coalition v. Conservation Commission, 212 Conn. 710, 724-25, 563 A.2d 1339 (1989). Thus, once the court finds it appropriate to appoint counsel for the minor child, the representation is the child's entitlement, not the parent's. The respondent mother cannot obtain standing by asserting the right of her child to have an attorney present.

B CONSTITUTIONAL CLAIM

We must next determine whether a parent, who certainly has legal duties with respect to her child, can dictate how the best interests of her child should be legally represented in a court proceeding. We conclude that she cannot. "Our law 'recognizes that parents have significant constitutionally protected rights to the companionship, care, custody and management of their children. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549 , 54 L.Ed.2d 511, reh. denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 [1213], 31 L.Ed.2d 551 (1972); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985).' Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); see also Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Ginsberg v. New York 390 U.S. 629, 639, 88 S.Ct. 1274 [1280], 20 L.Ed.2d 195, reh. denied, 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (1968); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571 , 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 , 67 L.Ed. 1042 (1923)." (Emphasis added.) Lehrer v. Davis, 214 Conn. 232, 236-37, 571 A.2d 691 (1990). "The family is not, however, beyond regulation in the public interest, and the rights of parenthood are not beyond limitation. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); McGaffin v. Roberts, supra, 193 Conn. at 401 [479 A.2d 176]." Lehrer v. Davis, supra, 214 Conn. at 237, 571 A.2d 691. "Neither parent has a right of property in their children of which they cannot be deprived without their consent." Antedomenico v. Antedomenico, 142 Conn. 558, 562, 115 A.2d 659 (1955). Indeed, "[t]he 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, 71 L.Ed.2d 599 (1982).... In re Steven G., 210 Conn. 435, 440, 556 A.2d 131 (1989)." (Internal quotation marks omitted.) In re Donna M., 33 Conn.App. 632, 637, 637 A.2d 795 (1994). Our state legislature has deemed it necessary, in order to preserve and promote the welfare of a minor child, to provide representation of counsel when the circumstances, as the trial court determines, require it. "General Statutes 46b-54(a) allows the court to appoint an attorney to represent a minor child during a dissolution proceeding if 'the court deems it to be in the best interests of the child.' ... 'The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child's interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.' Schaffer v. Schaffer, 187 Conn. 224, 224 n. 1, 445 A.2d 589 (1982)." Knock v. Knock, 224 Conn. 776, 790-91, 621 A.2d 267 (1993). This statutory power does not interfere with the parent's management of her child's...