Sunday, July 22, 2012

The Connecticut Supreme Court has just released a major decision supporting parents' rights.

Connecticut, for many years, adhered to the doctrine of predictive neglect.

This basically states that if you have previously had a child removed or terminated, and later have another child, then that new child may be removed, adjudicated neglected (and later terminated), even if you have not neglected or abused that child; solely on a prediction that that child will be at risk of harm. That risk may be found by a simple preponderance of the evidence, without a showing of fault of either parent.

In actual practice, almost anyone who ever had a child removed will have any future children removed, whether harm to that child occurred or not.

The Court unanimously (8-0) overruled that precedent on June 28, 2012. See In re Joseph W., 305 Conn. 633.

To find the slip opinion:

Click: Supreme Court opinions; Supreme Court archive; Year 2012; Published 7/10/12: In re Joseph W.

To summarize the Court's ruling:

1. The prior standard, as highlighted above, does not comport with due process, considering federal case law regarding parental rights to family integrity.

2. Instead, for predictive neglect, the State must prove that it is more likely than not that, if the child remained in the present situation, then that the child would be denied proper care and attention, or be permitted to live under conditions injurious to his welfare.

3. That does not sound like much of an improvement. However, the bombshell is that the Court specified that the above finding must be made with regard to each parent, even a noncustodial one, if that parent contests the allegations of the petition.

4. If the parents intend to raise the kid together, or if the court discredits their testimony that they will live apart, then the court may treat the parents as a single unit in determining whether the State has met its burden of proving predictive neglect. The practical result is that you can no longer adjudicate predictive neglect on a blanket "in re the child" basis, without considering fault. Rather, the Court, in a predictive neglect case, must make a finding with regard to each parent who independently plans to raise the child.

It remains to be seen how this will play out. However, for the moment, it seems to be a victory for parents. In Connecticut, DCF would simply remove a child, re-allege the prior petitions regarding prior children, and get commitment and eventual TPR based solely on what happened to the prior child or children. Often, of course, there was a prior TPR of parents who did not receive adequate representation, and who had no idea of the future consequences of agreeing to a TPR.

The State's justification, of course, was that we should not wait until harm occurs; we have a duty to protect children. That is true. However, the problem is that parents (invariably poor and uneducated ones) faced what was, in effect, a lifetime ban on raising children, whether they had caused any harm or would cause any harm to their new child.

As you read the case, you will see that the facts are not particularly sympathetic to the parents in question. The Court expressed reservations regarding permanency for the children in question. Nevertheless, the Court courageously placed due process above convenience.

The major architect of this decision is Atty. David J. Reich, of P.O. Box 2418, Middletown, CT 06457. EM: I had only a very small role, in advising Dave of a few tips for oral argument. Dave deserves the thanks of the entire CPS defense community.

Atty. Michael H. Agranoff
Ellington, CT

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