In re Juvenile Appeal

Parskey, J.

(dissenting.) Because today’s decision puts in jeopardy the fundamental rights of parents, especially those of limited means who must rely on the state to some extent in providing care for their children, I feel compelled to express my contrary views.

*647The commissioner of children and youth services in this case originally sought to terminate the defendant’s parental rights in her two children. The petition was withdrawn with regard to the older sister who has since been returned to the defendant mother. The petition to terminate parental rights in the younger brother was brought on three grounds, namely, (1) that the defendant had “failed' to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date [she] could assume a responsible position in [her] child’s life”; (2) that the defendant “by reason of continuing physical or mental deficiency [has], and for such period of time as will be detrimental to the best interest of the child, will be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being”; and (3) that “[t]here is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or re-establishment of such parent-child relationship would be detrimental to the best interest of the child.” The court found against the commissioner on the first two grounds but for him and against the defendant mother on the ground of the absence of an ongoing parent-child relationship pursuant to General Statutes § 17-43a (a) (4). Although the court observed that the improvement shown in the defendant’s health, appearance, ability to resist the disruptive influence of the child’s putative father and self-confidence were all indicative of the possibility that she might some day be capable of parenting her son, *648the court nevertheless proceeded to deprive her permanently of that possibility. We thus have the anomalous situation of a family unit destroyed with no hope of reconstruction on the basis of “no ongoing parent-child relationship.” Although the real mischief lies in the slippery language of the statutory ground itself, the facts in this case do not justify the result.

We must examine the “no ongoing parent-child relationship” ground for termination in light of the defendant’s constitutional right to preserve her parental rights in the absence of a powerful countervailing state interest. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Section 17-43a (a) (4) authorizes the termination of parental rights upon proof of no ongoing parent-child relationship for a period of one year. It is not enough for the commissioner to show a troubled relationship or even no meaningful relationship. Parental rights may be terminated only by showing no relationship. In re Juvenile (Anonymous) v. Commissioner of Children & Youth Services, 177 Conn. 648, 670-71, 420 A.2d 875 (1979). “While the evidence may demonstrate that the relationship was a troubled and confused one that had been adversely affected by the separation from the natural mother and by the intervening formation of a new relationship between the child and his foster parents, the relationship had by no means ended.” Id., 670-71. Because the issue has not been raised I do not address the question of the constitutional validity of § 17-43a (a) (4). Cf. Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). But in view of the constitutional right protected, any statute which permits termination of parental rights upon a showing of anything less than a compelling *649state interest would not pass constitutional muster. Note, “The Right to Family Integrity: A Substantive Due Process Approach to State Removal and Termination Proceedings,” 68 Geo. L.J., 213, 214 (1979).

Although the trial court found no ongoing parent-child relationship without specifying its duration the majority nevertheless interpolates the required one-year duration in the judgment. The trial court found that the defendant did not visit her son with sufficient regularity to form any significant psychological or parent-child bond with him. The fact that the defendant consistently verbalized concern for her son, sought revocation of the child’s commitment and visited him on fourteen occasions from December, 1976, through July, 1977, is ignored as being of no consequence. The majority characterizes these visits as mere contacts, too insignificant, presumably, to warrant serious consideration.

The decision in this case will make child care placement a trap for the unwary. The child is first removed from the parent and placed in a foster home. The onus is then placed on the parent to maintain a relationship with the child which will satisfy the selected psychiatrist and the trial court that a significant psychological bond exists between parent and child, all at the risk of losing parental rights permanently. Through this subtle process the burden of establishing no ongoing parent-child relationship for a period of one year has been removed from the commissioner. In its place the parent must show that his or her contacts with the child are sufficiently significant to satisfy the trier that a psychological bond continues to exist between parent and child. I find this turnaround incredible.

*650The real mischief contained in the “no ongoing parent-child relationship” ground can be seen in the invidious comparisons it fosters between the natural parents and the prospective adoptive parents. The trial court’s conclusion in this respect is enlightening : “While at the first hearing in October, 1977, [the defendant’s son] was not living with prospective adoptive parents so that his best interests would not then have been served by terminating his mother’s parental rights, a year later, living with foster parents who had become his psychological parents and who were willing to adopt, such termination was in his best interests.” Although we said in In re Juvenile Appeal (Anonymous), supra, that the best interests of the child is not an ingredient and is not involved in the threshold question of termination of parental rights the court’s decision today speaks otherwise. I dissent.