Substitute House Bill No. 5781

Public Act No. 00-75

An Act Concerning Protection Of Children In Probate Courts.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subsection (c) of section 17a-112 of the general statutes, as amended by section 4 of public act 99-166, is repealed and the following is substituted in lieu thereof:

(c) The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, as amended by this act, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-111b that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that: (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the parent of a child who (1) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for such child's physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (D) there 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 reestablishment of such parent-child relationship would be detrimental to the best interest of the child; (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families; (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent; or (G) the parent was convicted by a court of competent jurisdiction of a sexual assault resulting in the conception of the child, except a conviction for a violation of section 53a-71 or 53a-73a, provided the court may terminate such parent's parental rights to such child at any time after such conviction.

Sec. 2. Subsection (g) of section 45a-717 of the general statutes is repealed and the following is substituted in lieu thereof:

(g) At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve a petition terminating the parental rights and may appoint a guardian of the person of the child, or, if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to sexual molestation and exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child; (D) the parent of a child who (1) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (E) the parent of a child, under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable amount of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families; (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent; or (G) the parent was convicted by a court of competent jurisdiction of sexual assault except for a violation of section 53a-71 or 53a-73a resulting in the conception of the child.

Sec. 3. Section 45a-610 of the general statutes is repealed and the following is substituted in lieu thereof:

If the Court of Probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, as amended by this act, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following: (1) The parent consents to his or her removal as guardian; or (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor's welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at this time; [or] (4) the minor child has had physical injury or injuries inflicted upon [him] the minor child by a person responsible for such child's health, welfare or care, or by a person given access to such child by such responsible person, other than by accidental means, or has injuries which are at variance with the history given of them or is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment; or (5) the minor child has been found to be neglected or uncared for, as defined in section 46b-120. If, after removal of a parent as guardian under this section, the child has no guardian of his person, such a guardian may be appointed under the provisions of section 45a-616.

Sec. 4. Section 45a-620 of the general statutes is repealed and the following is substituted in lieu thereof:

The Court of Probate may appoint counsel to represent or appear on behalf of any minor in proceedings brought under sections 45a-603 to 45a-622, inclusive, [to speak on behalf of the best interests of the minor. Counsel should] and sections 45a-715 to 45a-717, inclusive. In any proceeding in which abuse or neglect, as defined in section 46b-120, is alleged by the applicant, or reasonably suspected by the court, a minor shall be represented by counsel appointed by the court to represent the minor. In all cases in which the court deems appropriate, the court shall also appoint a person, other than the person appointed to represent the minor, as guardian ad litem for such minor to speak on behalf of the best interests of the minor, which guardian ad litem is not required to be an attorney-at-law but shall be knowledgeable about the needs and protection of children. The Court of Probate shall appoint counsel to represent any respondent who notifies the court that he or she is unable to obtain counsel, or is unable to pay for counsel. The cost of such counsel shall be paid by the person whom he or she represents, except that if such person is unable to pay for such counsel and files an affidavit with the court demonstrating his or her inability to pay, the reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. In the case of a minor, such affidavit may be filed by a suitable person having knowledge of the financial status of such minor.

Sec. 5. Subsection (c) of section 45a-607 of the general statutes, as amended by section 23 of public act 99-84, is repealed and the following is substituted in lieu thereof:

(c) Except as provided in subsection (b) of this section, upon receipt of an application for temporary custody under this section, the court shall promptly set the time and place for hearing to be held on such application. The court shall order notice of the hearing on temporary custody to be given by regular mail to the Commissioner of Children and Families and by personal service in accordance with section 52-50 to both parents and to the minor, if over twelve years of age, at least five days prior to the date of the hearing, except that in lieu of personal service on a parent or the father of a child born out of wedlock who is either a petitioner or who signs under penalty of false statement a written waiver of personal service on a form provided by the Probate Court Administrator, the court may order notice to be given by certified mail, return receipt requested, deliverable to addressee only, at least five days prior to the date of the hearing. If the whereabouts of the parents are unknown, or if such delivery cannot reasonably be effected, then notice shall be ordered to be given by publication. Such notice may be combined with the notice under section 45a-609, as amended by this act, or with the notice required under section 45a-716. If the parents are not residents of the state or are absent from the state, the court shall order notice to be given by certified mail, return receipt requested, deliverable to addressee only, at least five days prior to the date of the hearing. If the whereabouts of the parents are unknown, or if delivery cannot reasonably be effected, the court may order notice to be given by publication. Any notice by publication under this subsection shall be in a newspaper which has a circulation at the last-known place of residence of the parents. In either case, such notice shall be given at least five days prior to the date of the hearing, except in the case of notice of hearing on immediate temporary custody under subsection (b) of this section. If the applicant alleges that the whereabouts of a respondent are unknown, such allegation shall be made under penalty of false statement and shall also state the last-known address of the respondent and the efforts which have been made by the applicant to obtain a current address. The applicant shall have the burden of ascertaining the names and addresses of all parties in interest and of proving to the satisfaction of the court that he or she used all proper diligence to discover such names and addresses. Except in the case of newspaper notice, such notice shall include: (1) The time and place of the hearing, (2) a copy of the application for removal or application for termination of parental rights, (3) a copy of the motion for temporary custody, (4) any affidavit or verified petition filed with the motion for temporary custody, (5) any other documents filed by the petitioner, (6) any other orders or notices made by the court of probate, and (7) any request for investigation by the Department of Children and Families or any other person or agency. Such notice shall also inform the respondent of the right to have an attorney represent him or her, and if he or she is unable to obtain or pay an attorney, the respondent may request the court of probate to appoint an attorney to represent him or her. Newspaper notice shall include such facts as the court may direct.

Sec. 6. Subsection (b) of section 45a-609 of the general statutes, as amended by section 24 of public act 99-84, is repealed and the following is substituted in lieu thereof:

(b) The court shall order notice of the hearing to be given by regular mail to the Commissioner of Children and Families and by personal service in accordance with section 52-50 to both parents and to the minor, if over twelve years of age, at least ten days before the time of the hearing, except that in lieu of personal service on a parent or the father of a child born out of wedlock who is either a petitioner or who signs under oath a written waiver of personal service on a form provided by the Probate Court Administrator, the court may order notice to be given by certified mail, return receipt requested, deliverable to addressee only, at least ten days prior to the date of the hearing. If such delivery cannot reasonably be effected, then notice shall be ordered to be given by publication. If the parents reside out of or are absent from the state, the court shall order notice to be given by certified mail, return receipt requested, deliverable to addressee only, at least ten days prior to the date of the hearing. If the whereabouts of the parents are unknown, or if delivery cannot reasonably be effected, the court may order notice to be given by publication. Any notice by publication under this subsection shall be in some newspaper which has a circulation at the parents' last-known place of residence. In either case, such notice shall be given at least ten days before the time of the hearing. If the applicant alleges that the whereabouts of a respondent are unknown, such allegation shall be made under penalty of false statement and shall also state the last-known address of the respondent and the efforts which have been made by the applicant to obtain a current address. The applicant shall have the burden of ascertaining the names and addresses of all parties in interest and of proving to the satisfaction of the court that he or she used all proper diligence to discover such names and addresses. Except in the case of newspaper notice, the notice of hearing shall include the following: (1) The notice of hearing, (2) the application for removal of parent as guardian, (3) any supporting documents and affidavits filed with such application, (4) any other orders or notice made by the Court of Probate, and (5) any request for investigation by the Department of Children and Families or any other person or agency. Such notice shall also inform the respondent of the right to have an attorney represent him or her in the matter, and if he or she is unable to obtain or to pay an attorney, the respondent may request the Court of Probate to appoint an attorney to represent him or her. Newspaper notice shall include such facts as the court may direct.

Sec. 7. Section 45a-619 of the general statutes is repealed and the following is substituted in lieu thereof:

[In any proceeding under sections 45a-603 to 45a-622, inclusive, the Court of Probate shall request an investigation by the Commissioner of Children and Families or by any organization, agency or individual licensed or approved by the commissioner, unless this requirement is waived by the court for cause shown.]

In any proceeding under sections 45a-603 to 45a-624, inclusive, in which the applicant has alleged that the minor has been abused or neglected, as those terms are defined in section 46b-120, or in which the probate judge has reason to believe that the minor may have been abused or neglected, the Court of Probate shall request the Commissioner of Children and Families or any organization, agency or individual licensed or approved by the commissioner, to make an investigation and written report to it, within ninety days from the receipt of such request, unless the request concerns an application for immediate temporary custody or temporary custody, in which case the commissioner shall render the report by such date as is reasonably ordered by the court. The report shall indicate the physical, mental and emotional status of the minor and shall contain such facts as may be relevant to the court's determination of whether the proposed court action will be in the best interests of the minor, including the physical, social, mental, and financial condition of the parties, and such other factors which the commissioner or agency finds relevant to the court's determination of whether the proposed action will be in the best interests of the minor. In any other proceeding under sections 45a-603 to 45a-624, inclusive, the court shall request an investigation and report unless this requirement is waived for cause shown. The report shall be admissible in evidence, subject to the right of any interested party to require that the person making it appear as a witness, if available, and subject to examination.

Sec. 8. Section 45a-623 of the general statutes is repealed and the following is substituted in lieu thereof:

In any proceeding under sections 45a-603 to 45a-622, inclusive, that is contested, the Court of Probate shall, upon motion of any party other than a party who made application for the removal of a parent as a guardian, under rules adopted by the judges of the Supreme Court, transfer the case to the Superior Court. [Upon transfer] In addition to the provisions of this section, the Court of Probate may, on the court's own motion or that of any interested party, transfer the case to another judge of probate, which judge shall be appointed by the Probate Court Administrator from a panel of qualified probate judges who specialize in children's matters. Such panel shall be proposed by the Probate Court Administrator and approved by the executive committee of the Connecticut Probate Assembly. The location of the hearing shall be in the original Court of Probate, except upon agreement of all parties and the Department of Children and Families, where applicable. If the case is transferred and venue altered, the clerk of the Court of Probate shall transmit to the clerk of the Superior Court or the Probate Court to which the case was transferred the original files and papers in the case.

Sec. 9. Subsection (g) of section 45a-715 of the general statutes is repealed and the following is substituted in lieu thereof:

(g) Before a hearing on the merits in any case in which a petition for termination of parental rights is contested in a court of probate, the Court of Probate shall, on the motion of any legal party except the petitioner or may on its own motion or that of the petitioner, under rules adopted by the judges of the Supreme Court, transfer the case to the Superior Court. [Upon transfer] In addition to the provisions of this section, the Probate Court may, on the court's own motion or that of any interested party, transfer the case to another judge of probate, which judge shall be appointed by the Probate Court Administrator from a panel of qualified probate judges who specialize in children's matters. Such panel shall be proposed by the Probate Court Administrator and approved by the executive committee of the Connecticut Probate Assembly. The location of the hearing shall be in the original Probate Court, except upon agreement of all parties and the Department of Children and Families, where applicable. If the case is transferred, the clerk of the Court of Probate shall transmit to the clerk of the Superior Court or the Probate Court to which the case was transferred, the original files and papers in the case. The Superior Court or the Probate Court to which the matter was transferred, upon hearing after notice as provided in sections 45a-716 and 45a-717, as amended by this act, may grant the petition as provided in section 45a-717, as amended by this act.

Sec. 10. Section 46b-150a of the general statutes is repealed and the following is substituted in lieu thereof:

(a) With respect to a petition filed in Superior Court pursuant to section 46b-150, the Superior Court may, if it deems it appropriate, (1) require a probation officer, the Commissioner of Children and Families or any other person to investigate the allegations in the petition and file a report of that investigation with the court, (2) appoint counsel for the minor who may serve as guardian ad litem for the minor, (3) appoint counsel for the minor's parents or guardian, or (4) make any other orders regarding the matter which the court deems appropriate.

(b) With respect to a petition filed in Probate Court pursuant to section 46b-150, the Probate Court shall request an investigation by the Commissioner of Children and Families, unless this requirement is waived by the court for cause shown. The court shall appoint counsel to represent the minor. The costs of such counsel shall be paid by the minor, except that if such minor is unable to pay for such counsel and files an affidavit with the court demonstrating [his] inability of the minor to pay, the reasonable compensation shall be established by, and paid from funds appropriated to, the Judicial Department. If funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund.

(c) Upon finding at the hearing or any time during the pendency of the proceeding in the Probate Court, that reasonable cause exists to warrant an examination, the court on its own motion or on motion of any party, may order the minor to be examined at a suitable place by a physician, psychiatrist or licensed psychologist appointed by the court. The court may also order examination of a parent whose competency or ability to care for a minor before the court is at issue. The expenses of any examination if ordered by the court on its own motion shall be paid for by the petitioner or if ordered on motion by a party, shall be paid for by the party moving for such an examination, unless such party or petitioner is unable to pay such expenses in which case they shall be paid for by funds appropriated to the Judicial Department. However, in the case of a probate matter, if funds have not been included in the budget of the Judicial Department for such purposes, such expenses shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. The court may consider the results of the examinations in ruling on the merits of the petition.

Approved May 16, 2000