Court Issues Guidelines For Parental Rights Cases

, The Connecticut Law Tribune

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Dana Hrelic
Dana Hrelic

Elvin G. is a father of two children whose parental rights were terminated while he was serving a lengthy prison sentence for federal firearm charges.

The father challenged the state's decision all the way to the state Supreme Court. He claimed that he should have been given specific steps which, if completed, would have proved he was rehabilitated and prevented the loss of his parental rights. Last week, the state's highest court agreed with his premise, a decision that will change the process the the state Department of Children and Families uses when terminating parental rights.

That was as far as the good news went for the father though, whose full name was not revealed in court records to protect the identities for the minor children involved. The overall decision to terminate his parental rights was upheld.

Elvin G.'s appellate lawyer, Dana Hrelic, of Horton, Shields & Knox in Hartford, said she and her client were happy with the decision to require the state to let parents know about any specific steps they might take to preserve their parental rights.

"Specific steps provide parents with notice and guidance as to what they need to do to reunify with their children and hopefully prevent the termination of their rights," said Hrelic. "This recognition by the court is a victory for all parents who find themselves in my client's position."

DCF Commissioner Joette Katz said that moving forward, her department will consult with its in-house attorneys before filing all termination petitions. The attorneys will have to document the consultation, consider every ground for termination, and explain whether or not there is legal sufficiency for each ground.

Further, Katz said the in-house attorneys must determine if parents have been issued the specific steps they might take in order to retain custody of their children. If not, the in-house attorneys must immediately bring this issue to the attention of the Assistant Attorney General handling the case.

"These consults will ensure that we are providing parents with proper notice about what they need to do to achieve reunification" with their children, said Katz. "In cases in which we determine that termination will provide permanency for children in our care, these consults will ensure that we are pleading the correct grounds when we file the termination petition."

Hrelic said she was disappointed that the justices opined that a failure to give her client specific steps was a harmless error in this case. The justices, in a majority opinion penned by Chief Justice Chase T. Rogers, were frank in their assessment that Elvin G. was not fit to be a parent.

"Specific steps would not have made any difference in [Elvin G.'s] failure to rehabilitate," wrote Rogers, who noted that the father was in jail for all but five weeks of one of his child's lives and all but about a year of the other son's life.

Elvin G.'s parental rights to his sons, then 10 and 9 years old, respectively, were terminated on Oct. 1, 2012. The children had been raised mostly by their mother who struggled with substance abuse problems. The Department of Children and Families became involved with her family in 2006 because of her drug problems and need for housing assistance.

Around that time, the mother had another child, with a different father, and tested positive for the illegal drug PCP. Later that year, DCF announced that it now considered the children to be neglected. But they remained in the mother's care under the protective supervision of DCF.

Around the time the children were born, Elvin G. was in prison on drug charges. He was later released to a halfway house, from which he escaped. He was caught and jailed again a few months later. In 2004, he was charged by federal authorities with possession of a stolen firearm. He was sentenced to 10 years in prison in 2005.

By early 2008, due to the mother's continued substance abuse problems, DCF had taken custody of the children.

In 2010, after the children had been in foster care for two years, DCF argued that the father had failed to rehabilitate himself despite participating in prison-based parenting, substance abuse and anger management programs. DCF said the father got into trouble while in prison, including possessing marijuana and failing a drug test. This resulted in an 18-month loss of visitation rights with his children. He also did not keep DCF updated about to his prison transfers. The agency had to track him down after he was transferred from a prison in New York to one in Arizona.

The mother, meanwhile, became disabled after having an aneurysm. It wasn't until her disabling condition was confirmed by doctors that DCF and the courts refocused their efforts towards termination of parental rights and adoption. The previous plan had focused primarily on reuniting the children with their mother.

In early 2012, a termination of parental rights hearing took place over three days at which the father participated via videoconference.

At the trial, the father's lawyer argued that the court needed to give the father specific steps to follow prior to terminating his parental rights, claiming that such steps are mandated by state statute. However, Superior Court Judge Constance Epstein ruled that state statute does not require a court to issue specific steps for a parent prior to terminating their parental rights when there has been a prior court adjudication of neglect.

The father then appealed and the state Supreme Court took up the case.

Chief Justice Rogers noted in the decision, which will be officially released Nov. 12, that although specific steps must be given to parents facing the loss of their children, the parent's completion of the steps does not ensure they will prevail in a termination proceeding.

"Specific steps provide notice and guidance to a parent as to what should be done to facilitate reunification and prevent termination of rights," wrote Rogers. "Their completion or noncompletion, however, does not guarantee any outcome. A parent may complete all of the specific steps and still be found to have failed to rehabilitate."

Justice Peter T. Zarella dissented from the majority, arguing that the court's decision to require DCF to give parents specific steps if they want to keep their children was inconsistent with the decision to terminate the rights of Elvin G., who was not given such an opportunity. "Although I am sympathetic to the majority's concern, I believe that we must encourage the department to follow the proper procedural channels for termination," wrote Zarella.•

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