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In re John B.

Court of Appeals of Connecticut

February 27, 1990

In re JOHN B. [*]

Argued Dec. 7, 1989.

Sara R. Martin, New Haven, for appellant (respondent mother).

Judith Merrill Earl, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellee (State).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LAVERY, JJ.

[20 Conn.App. 726] LAVERY, Judge.

This is an appeal by the respondent mother, Dolores B., [1] (respondent) from the granting of a petition to terminate her parental rights with respect to her son, John B., pursuant to General Statutes § 17-43a. The respondent's sole claim is that the trial court erred in considering evidence antedating a prior termination proceeding because the admission of such evidence was barred under the doctrines of res judicata or collateral estoppel. We find no error. [2]

[20 Conn.App. 727] The following facts are relevant. John B. was born on May 25, 1983. At birth, the child was mildly retarded and had fetal alcohol syndrome and chronic asthma. One of his legs was shorter than the other. After extended hospital care, the child was placed in a foster home pursuant to a court order dated August 10, 1983. Since then, the child has lived in foster homes; he has never lived with his parents. On November

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1, 1983, the child was found uncared for and was committed to the department of children and youth services (DCYS); his commitment continues to the present day.

John B. has special mental and physical needs and attends special nursery classes and receives outpatient treatment at Newington Children's Hospital. The child's father is severely alcoholic and has a history of physically abusing the respondent mother; the respondent is severely mentally ill. A prior petition was brought by DCYS for termination of parental rights and on October 9, 1985, the trial court, Clark, J., denied the termination petition in a docket entry that read "burden of state's case, clear and convincing evidence, has not been met." No more detailed memorandum was issued.

On November 28, 1986, DCYS filed the present petition to terminate the father's and the respondent's parental rights. The three grounds in this petition were the same as the allegations in the prior petition. [3] The trial court admitted evidence antedating the prior decision and took judicial notice of the file of the prior termination proceeding. That file included, inter alia, the service agreements between the parents and DCYS, as well as various reports on the nature of the child's relationship with his parents. The trial court found that after the prior decision the child had remained in the [20 Conn.App. 728] custody of DCYS and that DCYS had entered into a new service agreement with both parents. Under the agreement, each parent was to visit separately with the child every other week at the DCYS office. In addition, each parent was to participate in counseling, either separately or together.

Immediately thereafter, the parents breached their responsibilities under the agreement. Although each parent received bus passes, neither adhered to his or her visitation schedule. The respondent made two out of thirteen possible visits, both of which were for one hour and were noted by DCYS personnel to be deficient in quality. The father made one visit of five minutes duration. Neither parent entered counseling or therapy programs designed to enable them to assume parental control. The father testified that neither he nor the respondent was able to care for the child, and the respondent told DCYS that she was willing to have her rights terminated provided that the child was placed in the custody of a relative so that she could keep in touch with him. During the child's commitment to DCYS, the respondent had been irregularly attending treatment plan and education conferences conducted by DCYS. The parents have sent the child no gifts or cards since October, 1985. In 1986, the respondent was expelled from vocational school a second time for disruptive behavior.

In June, 1986, the Probate Court committed the respondent to Connecticut Valley Hospital (CVH), a mental care institution. On August 26, 1986, the respondent left CVH without permission. She returned to CVH on November 16, 1986, where she remained until the new petition was filed. When DCYS inquired about whether the child should visit the respondent at CVH, the staff recommended against visitation because [20 Conn.App. 729] it would not be beneficial for either the child or the respondent. The staff prognosis for the respondent was poor.

A threshold question at the second termination hearing was whether evidence antedating the prior decision of October 9, 1985, was admissible. In its memorandum of decision, the trial court ruled that "[a] decision to grant or deny a termination petition must be made on the basis of conditions existing at the time of trial. Acts or events occuring Before the denial of the earlier petition should be considered if they have continued or have been repeated or if, when coupled with new acts, they present a change of circumstances." (Citation omitted.) We agree.

The doctrines of res judicata and collateral estoppel are well established in our

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law. The two doctrines "protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has ...


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