In re Annessa J. (2022)

In Re Annessa J. (SC 20614)

June 2022

Pursuant to C.G.S. § 46b-121 (b) (1), ‘‘[i]n juvenile matters, the Superior Court shall have the authority to make and enforce such orders directed to parents . . . as the court deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child subject to the court’s jurisdiction or otherwise committed to or in the custody of [DCF].’’ Pursuant further to the CT Supreme Court’s decision in In re Ava W. (336 Conn. 545), a trial court has the authority to consider, at the time it determines whether to terminate a parent’s parental rights, the parent’s motion for post-termination visitation with the child/children; this authority originates from the trial court’s authority to make and enforce orders pursuant to § 46b-121 (b) (1).

In the present case, DCF sought to terminate the respondents’ parental rights with respect to their minor child. Because of the COVID-19 pandemic, the TPR trial was held remotely via Microsoft Teams. During that trial, the parents filed motions seeking visitation with the child in the event that their parental rights were terminated. At the conclusion of the trial, the court terminated their rights and denied their motions for post-termination visitation.  In ruling on their motions, the trial court determined that the best interest of the child standard was not the correct standard under § 46b-121 (b) (1) and that post-termination visitation was not required for the child’s well-being, welfare, protection, proper care or suitable support. The parents appealed to the Appellate Court, which upheld the termination, but reversed the denial of the parents’ motions for post-termination visitation. That Court concluded that the trial court had failed to apply the correct standard under § 46b-121 (b) (1) and the Supreme Court’s holding in In re Ava W. when it ruled on the parents’ motions for post-termination visitation. Specifically, the Appellate Court determined that In re Ava W. did not purport to reject the best interest of the child standard, and that the trial court had failed to consider whether post-termination visitation was necessary or appropriate to secure the welfare, protection, proper care and suitable support of the child, taking into account, inter alia, the traditional best interest analysis.  On the granting of certification, the Mother appealed and DCF cross appealed to the Supreme Court.

The Court here held that Mother’s unpreserved state and federal constitutional claims relating to the virtual nature of the TPR trial were unavailing, and, accordingly, upheld the Appellate Court’s judgment insofar as it affirmed the trial court’s judgment to terminate parental rights.  Specifically:

1. The Appellate Court correctly concluded that Mother had failed to establish that she had a fundamental right under Article 1, § 10, and Article 5, § 1, of the Connecticut Constitution to an in-person courtroom trial on the TPR petition. The text of those constitutional provisions was silent as to whether trials must be conducted in person: our courts have never had occasion to interpret either provision as imposing such a requirement, and Mother did not cite any authority or provide any historical analysis to support the proposition that those provisions require an in-person TPR trial. Additionally, the open courts provision of Article 1, § 10, does not relate to the right of physical appearance, but instead, was intended to preserve the common-law rights of litigants to obtain redress for injuries to their persons, property, or reputation, to prohibit the state from imposing unreasonable charges on litigants for using the courts, and to end the corrupt practice of demanding gratuities for the giving or withholding of decisions in pending cases.  Furthermore, prior case law generally references Article 5, § 1, for the proposition that the legislature is responsible for establishing certain lower courts and defining their jurisdiction, and does not support the proposition that a TPR trial must be conducted in person.  The Supreme Court had previously held in In re Juvenile Appeal (Docket No. 10155) (187 Conn. 431) that the trial court in that case did not violate the respondent’s constitutional rights by conducting a TPR trial while the respondent participated via telephone instead of in person.
2. The Appellate Court correctly concluded that the record was inadequate to review Mother’s unpreserved claim that she was denied the right to physically confront the witnesses against her at the virtual TPR trial, in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution. Even if the Supreme Court agreed with Mother that she had a constitutional right to confront DCF’s witnesses in-person, in the absence of a compelling governmental interest sufficient to curtail that right, the Court here had no factual record or findings on which to base a determination of whether that right was violated, or whether the trial court had correctly concluded that the government’s interests were sufficiently great to warrant conducting the trial virtually. Moreover, because Mother objected to the trial being conducted virtually on the basis that doing so would interfere with her ability to present evidence and the trial court’s ability to weigh such evidence, the trial court was not alerted to the right to confrontation issue, and did not have occasion to make findings of fact regarding the threat posed by the COVID-19 pandemic, and whether that threat was sufficiently compelling to curtail any constitutional right to confrontation.  As such, it would be unfair to DCF for this Court to reach the merits of Mother’s claim by assuming that the factual predicates to her claim have been met.

Additionally, in relation to the argument in regards to the standard for deciding motions for post-termination visitation, the Court here found that the Appellate Court improperly expanded the standard set forth in In re Ava W., and improperly reversed the trial court’s rulings on the parents’ motions for post-termination visitation on the ground that the trial court had failed to comply with that standard.  Specifically, although one sentence in the Court’s decision in In re Ava W. may have suggested that trial courts, in ruling on a motion for post-termination visitation, must decide whether such visitation is in the best interest of the child, the Court did not intend that sentence, in isolation, to broaden the applicable standard to include a best interest of the child analysis.  Rather, the Court read the entire decision in In re Ava W. to hold that trial courts must adhere to the “necessary or appropriate” standard set forth in § 46b-121 (b) (1), rather than the “best interest of the child” standard when ruling on motions for post-termination visitation.

Moreover, the Court here held that contrary to Mother’s claim that the Court must presume that the legislature intended to incorporate the “best interest of the child” standard into § 46b-121 (b) (1) by virtue of that statute’s use of the word ‘‘welfare,’’ insofar as the legislature enacted § 46b-121 (b) (1) against the backdrop of common-law history equating the child’s welfare with the child’s best interest, the legislature frequently has used the term ‘‘best interest of the child’’ and similar terms in statutes that appear in the same chapter as § 46b-121.  Therefore, if the legislature had intended to incorporate the “best interest of the child” standard into the “necessary or appropriate” standard set forth in § 46b121 (b) (1), it would have used the words ‘‘best interest of the child’’ instead of, or in addition to, ‘‘welfare.’’ 

Furthermore, this Court concluded that the “necessary or appropriate” standard is purposefully more stringent than the “best interest of the child” standard, as, under the former standard, a trial court must find that post-termination visitation is necessary or appropriate, meaning ‘‘proper,’’ to secure the child’s welfare.  In the present case, this Court found that the Appellate Court incorrectly concluded that the trial court had held the parents to a more exacting legal standard than the one set forth in In re Ava W.  The trial court’s specific references to the standard set forth in In re Ava W., made throughout the relevant portion of its memorandum of decision, and its explicit consideration of at least one factor, enumerated in In re Ava W., that a trial court may consider in determining whether post-termination visitation is necessary or appropriate for the child’s well-being, indicated that the trial court applied the correct legal standard in ruling on the parents’ motions for post-termination visitation.  Therefore, because the trial court correctly articulated the “necessary or appropriate” standard, and stated that post-termination visitation was ‘‘not required’’ only after it determined that the parents had not satisfied their burden of proving that such visitation was necessary or appropriate to secure the child’s welfare, this Court found that the trial court understood that it was required to determine whether post-termination visitation was either necessary (i.e., required) or appropriate.

https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR343/343CR43.pdf

Justices Ecker, Keller, and Kahn concurred separately in two opinions:

https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR343/343CR43A.pdf

https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR343/343CR43B.pdf