In re LORI BETH D., et al. [*]
Argued Nov. 9, 1989.
William L. Ankerman, Hartford, for appellant (respondent).
Daniel E. Lynch, with whom, on the brief, was Daniel E. Lynch, Jr., West Hartford, for appellees (petitioners).
Susan L. Miller, Hartford, with whom, on the brief, was Robert E. Byron, Legal Intern, for minor children.
Before DUPONT, C.J., and DALY and NORCOTT, JJ.
[21 Conn.App. 227] DUPONT, Chief Judge.
This is an appeal from the judgment of the trial court terminating the parental rights of the respondent father. The respondent first claims that the Probate Court transferred the action to the Superior Court without affording him notice and an opportunity to be heard in the Probate Court on the motion to transfer, thus divesting the Superior Court of subject matter jurisdiction. He also claims (1) that the trial court should have appointed a guardian ad litem for him, (2) that the adjudication date should have been the date the petition was filed rather than the date the
trial started and (3) that there was no clear and convincing evidence on which to base a decision to terminate his parental rights. We find no error.
The petition was filed in Probate Court by the children's mother pursuant to General Statutes § 45-61c. She sought termination of the respondent father's parental rights with respect to Lori Beth and Mary [21 Conn.App. 228] Elizabeth D. on the bases of abandonment, pursuant to General Statutes § 45-61f(f)(1), and denial of care, guidance and control, pursuant to § 45-61f(f)(2). The respondent was served in hand on January 9, 1988, with notice of a hearing to be held in Probate Court on January 21, 1988. The respondent was present at the hearing in Probate Court, at which time he informed the court of his intention to contest the petition.
The petitioner, on January 25, 1988, filed a motion to transfer the matter to the Superior Court. On January 22, 1988, a copy of the motion was sent to the respondent at a local motel, in care of another named individual. The respondent filed no objection, oral or written, to the motion to transfer, and the motion was granted. The petition was thereafter transferred to the Superior Court in Hartford. On June 9, 1988, the maternal grandparents, who had previously been awarded guardianship of both children, filed a motion to amend, seeking to be joined as parties petitioner with respect to Lori Beth. Their petition alleged both of the statutory grounds originally raised as well as the additional ground of no ongoing parent child relationship. General Statutes § 45-61f(f)(3). The motion to amend was granted with respect to both intervention and the additional ground on June 9, 1988. A trial ensued, with proceedings on June 9, June 30, and July 1, 1988. At trial, the petitioner raised no objection to the transfer. On November 3, 1988, the court issued its decision granting the petition for termination of the respondent's parental rights with respect to both children.
We must first determine whether the case was improperly transferred from the Probate Court to the Superior Court on the petitioner's motion, thereby divesting the trial court of subject matter jurisdiction. General Statutes § 45-61c(g) provides in relevant part: "Before a hearing on the merits in any case in which [21 Conn.App. 229] 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...." (Emphasis added.) The statute does not provide for notice and hearing on the motion to transfer, and leaves the granting of such a motion by the petitioner to the discretion of the Probate Court, within the limits of the rules imposed on that court by our Supreme Court.
Rule 7.2 of the Probate Court Rules also imbues the Probate Court with discretionary power over such transfers: "Contested petitions for termination of parental rights may, in the discretion of the judge of probate be transferred from the court of probate to the juvenile court upon either the motion of the petitioner or that of the court itself." (Emphasis added.) The only Probate Rule addressing the availability of a hearing and notice of a hearing on a motion to transfer is Rule 7.6, which provides: "Upon receipt of a motion by the petitioner to transfer, the court of probate may set the time and place for a hearing on such motion to show cause why the matter should be transferred to the juvenile court for determination. Notice of such hearing shall be given to all parties in interest by certified mail or otherwise no later than 3 days prior to the date set by the court of probate for such hearing...." (Emphasis added.) We read this rule to mean that whether a hearing is held on a petitioner's motion to transfer is within the discretion of the Probate Court, but that if the court, in fact, decides to hold a hearing, notice of "such hearing," in accordance with the procedure set out in Rule 7.6, becomes mandatory. Here, because the court, in the proper exercise of its discretion, chose not to hold a hearing on the motion, there was no proceeding of which to give notice. Furthermore,[21 Conn.App. 230] notice of the transfer motion
itself was sent to the respondent on January 22, 1988, and he failed to object orally or in writing, at that time or during trial in the Superior Court, either to the transfer motion, or to the lack of a hearing or to the lack of notice of a hearing on that motion. Given the discretion conferred upon the Probate Court by General Statutes § 45-61c(g) and Probate Court Rule 7.6, we find that no notice of a hearing was required and that the petition was properly transferred to the Superior Court.
General Statutes § 45-61c(g) provides in part: "Upon transfer, the clerk of the court of probate shall transmit to the clerk of the superior court the original files and papers in the case. The superior court, upon hearing after notice [on the petition for termination] as provided in sections 45-61d and 45-61f, may grant the petition as provided in section 45-61f." The Superior Court upon transfer, therefore, had subject matter jurisdiction to hear and decide the matter.
The respondent next argues that the trial court should have appointed a guardian ad litem for him pursuant to General Statutes § 45-61e or, at a minimum, should have considered appointing a guardian ad litem for him because he had been diagnosed as mentally ill and was unable to explain where he had been or what he had been doing between January, 1984, and October, 1987. The petitioners correctly argue that because the respondent failed to raise this claim at trial, this court is limited to plain error review. Polce v. Stop & Shop Cos., 4 Conn.App. 18, 19, 492 A.2d 206 (1985). Thus, the claimant must show not only plain error in the lower court's proceedings or reasoning, but also that he was prejudiced by it. State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982); State v. Scott, 10 Conn.App. 347, 522 A.2d 1245, cert. denied, 204 Conn. 804, 204 Conn. 805, 528 A.2d 1152 (1987).
[21 Conn.App. 231] Section 45-61e(a) provides: "When, with respect to any petition filed under section 17-43a, section 45-61c or section 45-61d, it appears that either parent of the child is a minor or incompetent, the court shall appoint a guardian ad litem for such parent. The guardian ad litem shall be an attorney-at-law authorized to practice law in Connecticut ...